Common use of Board Representation Clause in Contracts

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon (a) Upon the IPO Closinglater of (x) forty-five (45) days following the Closing or (y) designation by the Investor to the Company of a Qualified Nominee, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable to the Board and shall meet all qualifications required by written policy of the Company, including, without limitation, the Purchaser Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall have nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one individual person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the “Purchaser Designee”) to bedeath, at Purchaser’s electiondisability, either (a) retirement, resignation, removal or other vacancy of a non-voting observer (a “director designated by the Investor, the Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected shall elect as a member of director to fill the Board. Any vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Observer Representative shall be entitled to attend meetings the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to receive reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all information regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative with copies of all notices, minutes, consents and other materials provided to the all other members of the Board during the period in which concurrently as such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted materials are provided to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companymembers.

Board Representation. Effective (a) For so long as the S Shareholders, in the aggregate, Beneficially Own Voting Securities representing at least ten per cent. (10%) of the Voting Securities outstanding at such time, Capricorn may, upon written notice to the IPO ClosingCompany, the Purchaser shall have the right to designate one individual two (the 2) individuals as Directors (each, a “Purchaser Shareholder Designee”) and the Company shall appoint such Shareholder Designees as Directors and take all necessary actions to bemaintain their appointment (subject to this Clause 3.3); provided, however, that such Shareholder Designee shall satisfy the requirements set forth in Clause 3.3(b); provided, further, that, at Purchaser’s electionsuch time that the S Shareholders, either in the aggregate, cease to Beneficially Own Voting Securities representing ten per cent. (a) a non-voting observer (a “Board Observer”10%) of the Company’s board Voting Securities outstanding at such time but still, in the aggregate, Beneficially Own Voting Securities representing at least the Ownership Threshold, Capricorn shall use its best endeavours to promptly cause one (1) of directors (its Shareholder Designees, if any, then appointed to the “Board”) Board to resign, effective immediately, from the Board and from any committees or (b) elected as a member subcommittees thereof to which the Shareholder Designee is then appointed or on which he or she is then serving, and the right of the Board. Any Board Observer Capricorn to appoint Shareholder Designees shall be entitled permanently reduced from two (2) to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observerone (1); provided, further, that, at such time that the Board Observer S Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing at least the Ownership Threshold, Capricorn shall not be entitled use its best endeavours to vote on any matter submitted promptly cause each Shareholder Designee, if any, then appointed to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s deathresign, disability or resignation effective immediately, from the Board prior and from any committees or subcommittees thereof to which the Business Combination Shareholder Designee is then appointed or on which he or she is then serving, and the right of Capricorn to designate Shareholder Designees shall permanently terminate. Capricorn hereby designates to serve on the Board as an initial Shareholder Designee, effective at the Closing, each of Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxxx, and the Purchaser Company agrees, effective at the Closing, to promptly appoint Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxxx as Directors, and shall have the right take all necessary actions to maintain their appointment (subject to this Clause 3.3). If for whatever reason, Xxxxxxx Xxxxxxx and/or Xxxx X. Xxxxxxxxx are not able to assume their function as director upon Closing, Capricorn will be entitled to designate a replacement Purchaser Designeewho meets the requirements of Clause 3.3(b). In Upon the event the Purchaser designates a Purchaser Designee to be elected to Closing, the Board pursuant to clause shall consist of ten (10) Directors. (b) aboveNotwithstanding anything to the contrary set forth in this Agreement, from and after the Sponsor hereby agrees Effective Time, any Shareholder Designee designated by the Shareholders pursuant to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material Clause 3.3(a) or meeting or portion thereof if: 3.3(d): (i) the Board concludes in good faith, upon advice shall not be an Affiliate or Associate of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or any Shareholder; (ii) such portion except in the case of a meeting is Xxxxxxx Xxxxxxx, shall qualify as an executive session limited solely to “independent director members director” under applicable provisions of the BoardExchange Act and under applicable NYSE rules and regulations, independent auditors and/or legal counsel, as or the Board may designate, applicable rules and the Board Observer (assuming the Board Observer were a member regulations of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other principal securities exchange on which the Ordinary Shares are then listed; (iii) would not, at the time of such designation, be required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D (as in effect at the date of this Agreement) if such Shareholder Designee were the “person filing” such Schedule 13D; (iv) shall not, at the time of such designation, be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or NYSE or pursuant to applicable law, including the Companies Act and the CDDA; (v) shall not during the term of his or her service as a Director be a director, officer, employee or Affiliate or Associate of a Competitor; and (vi) shall, in the good faith judgment of the Corporate Governance and Nominating Committee of the Board (the “Nominating Committee”), satisfy the requirements set forth in the Company’s securities Organisational Documents and Corporate Governance Guidelines (as in effect from time to time), in each case as are then traded. In the event the Purchaser designates a Board Observer pursuant applicable to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.all non-executive Directors generally;

Board Representation. Effective (a) Upon completion of the First Closing and once Buyer provides a written confirmation to Issuer to increase the Initial Buyer Percentage to the Step Two Buyer Percentage, Issuer shall increase the size of the Board by one (1) director, so that upon such increase, (i) the IPO Board shall consist of ten (10) directors, and (ii) the Board shall elect as director to fill the vacancy a person designated by Buyer who shall be reasonably acceptable to Issuer and the Board. Such person shall, unless removed by Buyer or otherwise for cause, serve as a duly appointed director of Issuer. Each subsequent designee of Buyer shall, if reasonably acceptable to Issuer and the Board and subject to this Section 6.1, be nominated by the Board for election by the stockholders to the Board, and if so elected, shall serve as a duly elected director of Issuer. Subject to Section 6.1(e), so long as Buyer from time to time maintains the Initial Buyer Percentage, Issuer shall continue to nominate and recommend for election one (1) person designated by Buyer who is reasonably acceptable to Issuer and the Board to serve as director on the Board. (b) Promptly after completion of the Third Closing, Issuer shall increase the size of the Board by one (1) director so that upon such increase, (i) the Board shall consist of eleven (11) directors and (ii) the Board shall elect as director to fill the vacancy a person designated by Buyer who shall be reasonably acceptable to Issuer and the Board. Such person shall, unless removed by Buyer or otherwise for cause, serve as a duly appointed director of Issuer. Each subsequent designee of Buyer shall, if reasonably acceptable to Issuer and the Board and subject to this Section 6.1, be nominated by the Board for election by the stockholders to the Board, and if so elected, shall serve as a duly elected director of Issuer. Subject to Section 6.1(e), so long as Buyer from time to time maintains the Step Three Buyer Percentage, Issuer shall continue to nominate and recommend for election two (2) persons designated by Buyer who are reasonably acceptable to Issuer and the Board to serve as directors on the Board. For the avoidance of doubt, this Section 6.1(b) shall not apply in the event that Buyer first acquires the Step Three Buyer Percentage after the expiry of the Standstill Period. (c) At least thirty (30) days prior to its distribution of its proxy statement or information statement with respect to each meeting of stockholders at which a term of a director designated by Buyer expires, Issuer shall notify Buyer. On or prior to the close of business on the later of (i) the fifteenth (15th) day following its receipt of Issuer’s notice and (ii) the thirtieth (30th) day prior to Issuer’s anticipated distribution of such proxy statement or information statement, Buyer shall notify Issuer information regarding its nominee required by the Exchange Act and the rules and regulations promulgated by the SEC thereunder to be set forth in such proxy statement or information statement. (d) Promptly after completion of the Second Closing, the Purchaser board of directors of Buyer shall have the right elect as director one (1) person designated by Issuer who shall (i) be reasonably acceptable to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s Buyer and its board of directors (the “Buyer’s Board”), and (ii) or has been approved by the CBRC, the CSRC and the Shanghai Stock Exchange to serve as director on the Buyer’s Board (b) elected as a member of the Boardan “Approved Issuer Designee”). Any Board Observer The Approved Issuer Designee shall be entitled nominated by the Buyer’s Board for election by the stockholders to attend meetings of the Buyer’s Board, and if so elected, shall serve as a duly elected director of Buyer. So long as Buyer from time to receive all information provided time maintains the Step Two Percentage, Buyer shall continue to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser nominate and recommend for election one (1) Approved Issuer Designee to be elected to serve as director on the Board pursuant to clause Buyer’s Board. (e) For purposes of Sections 6.1(a) and (b) above), the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee Buyer shall be entitled deemed to an indemnification agreement in have maintained the form attached hereto Initial Buyer Percentage or the Step Three Buyer Percentage, as Exhibit D. The Company may exclude any Board Observer applicable, if from access time to any material time the Buyer Percentage is less than the Initial Buyer Percentage or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counselStep Three Buyer Percentage, as the Board case may designatebe, and by less than 1%. Without limiting the Board Observer (assuming the Board Observer were a member generality of the Board) would not meet foregoing, in no event shall Buyer be deemed to have failed to maintain the then-applicable standards for independence adopted by Initial Buyer Percentage or the NASDAQ Capital MarketStep Three Buyer Percentage, as the case may be, if, with respect to any Dilutive Event that decreases the Buyer Percentage to below the Initial Buyer Percentage or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates Step Three Buyer Percentage, Buyer has provided a Board Observer pursuant written notice to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, Issuer of its desire to the Companyacquire Additional Shares in accordance with Section 2.4(b).

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Until the earlier to occur of the Company’s board tenth anniversary of directors the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement and the date on which the Apollo/Blackstone Shareholders own, collectively, less than 20% of the Apollo/Blackstone Shares (the “Board”"Shareholder Designee Period"), the Board of Directors shall consist of no more than thirteen (13) or (b) elected directors during the Shareholder Designee Period. For so long as a member of the Board. Any Board Observer Apollo/Blackstone Shareholders are entitled to at least two Shareholder Designees under this Agreement, the Apollo/Blackstone Shareholders shall be entitled to attend meetings of the Board, and to receive all information provided to the members have one Shareholder Designee serve on each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as set forth below with respect to the Nominating Committee. (b) Immediately following the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, the Company will cause Xxxxx Xxxxxxx to be elected or appointed to the Board of Directors. At all times during the period Shareholder Designee Period, the Company agrees, subject to Section 3.1(d), to support the nomination of, and the Company's Nominating Committee (as defined herein) shall recommend to the Board of Directors the inclusion in which such person is the slate of nominees recommended by the Board of Directors to shareholders for election as directors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company ("Management Directors"), (ii) (A) five Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 80% or more of the Apollo/Blackstone Shares, (B) four Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 60% or more but less than 80% of the Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of the Apollo/Blackstone Shares, (D) two Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 20% or more but less than 40% of the Apollo/Blackstone Shares, and (E) one Shareholder Designee, so long as the Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of the Apollo/Blackstone Shares (each a Board Observer"Beneficial Ownership Threshold"); provided, however, that the Board Observer shall not be entitled to vote on if at any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event time as a result of the Purchaser Designee’s death, disability Company's issuance of Voting Securities the Shareholders beneficially own 9% or resignation from less of the Board prior to Actual Voting Power (the Business Combination Closing"Actual Voting Power Threshold"), the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee Apollo/Blackstone Shareholders shall be entitled to no more than three Shareholder Designees (even if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater number of Shareholder Designees pursuant to clauses (A) through (E) above), and (iii) such other persons, each of whom is (A) recommended by the Nominating Committee and (B) not an indemnification agreement employee or officer of or outside counsel to the Company or a partner, employee, director, officer, affiliate or associate (as defined in Rule 12b-2 under the form attached hereto Exchange Act) of any Shareholder or any affiliate of a Shareholder or as Exhibit D. The Company may exclude to which the Shareholders or their affiliates own at least ten percent of the voting equity securities ("Unaffiliated Directors"). If any vacancy (whether by death, retirement, disqualification, removal from office or other cause, or by increase in number of directors) occurs prior to a meeting of the Company's stockholders, the Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faithmay appoint a member of management to fill a vacancy caused by a Management Director ceasing to serve as a director, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion shall appoint, subject to Section 3.1(d), a person designated by the Apollo/Blackstone Shareholders to fill a vacancy created by a Shareholder Designee ceasing to serve as a director (except as a result of the reduction of the number of Shareholder Designees entitled to be included on the Board of Directors by reason of a meeting decrease in the Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or by reasons of a decrease in the Shareholders' beneficial ownership of Voting Securities below the Actual Voting Power Threshold), and (iii) may appoint a person who qualifies as an Unaffiliated Director and is recommended by the Nominating Committee pursuant to the procedures set forth in the following paragraph to fill a vacancy created by an executive session limited solely Unaffiliated Director ceasing to independent serve as a director members (provided, however, that in the case of a vacancy relating to an Unaffiliated Director, if a majority of the BoardNominating Committee is unable to recommend a replacement, independent auditors and/or legal counselthen the Board seat with respect to this vacancy shall remain vacant), and each such person shall be a Management Designee, Shareholder Designee or Unaffiliated Director, as the Board case may designatebe, and for purposes of this Agreement. At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board Observer of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one or more persons to serve as Unaffiliated Directors (assuming except with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board Observer were a member of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Apollo/Blackstone Shareholders beneficially own less than 50% of the Board) would Apollo/Blackstone Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not meet the then-applicable standards for independence adopted be further amended by the NASDAQ Capital MarketBoard of Directors during the Shareholder Designee Period. Notwithstanding the foregoing, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer Company shall have no dutiesobligation to support the nomination, fiduciary recommendation or otherwiseelection of any Shareholder Designee pursuant to this Section 3.1(b) or any other obligation under this Section 3.1 if the Apollo/Blackstone Shareholders are in breach of any material provision of this Agreement. (c) Upon any decrease in Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or any decrease in the Shareholders beneficial ownership of Voting Securities below the Actual Voting Power Threshold, the Apollo/Blackstone Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be equal to the number of Shareholder Designees which the Apollo/Blackstone Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, the Apollo/Blackstone Shareholders shall promptly cause all of the Shareholder Designees to offer to resign immediately from the Board of Directors and any committees thereof and the Company's obligations under this Section 3.1 shall terminate.

Board Representation. For the period of time beginning on the first calendar day following the Effective upon Time (the IPO Closing"DIRECTOR DATE") and terminating on the earlier of (i) the first date on which the KPENV Entities cease to beneficially own at least 7.5% of the Total Current Voting Power, and (ii) the date of the 2005 Stockholders Meeting (such period, the Purchaser "DIRECTOR PERIOD"), the Stockholder shall have be entitled to request that the right to designate one individual (the “Purchaser Designee”) to beCompany include, at Purchaser’s election, either (a) as a non-voting observer (a “Board Observer”) nominee or designee of the Company’s 's board of directors recommended by said board of directors, one person designated by the Stockholder and reasonably satisfactory to the Company's board of directors (any such person, a "STOCKHOLDER NOMINEE"). At, or as promptly as practicable after (but in no event prior to), the “Board”Director Date, the Company shall cause one Stockholder Nominee to be elected or appointed as a director of the Company to serve in Class II for a term expiring at the 2005 Stockholders Meeting. During the Director Period, (i) promptly following the death, incapacity, resignation or removal from the Company's board of directors of any Stockholder Nominee, the Company shall cause another Stockholder Nominee to be elected or appointed as a director to fill the vacancy thereby created, and (bii) elected the Company shall take all such actions as may be reasonably necessary to ensure that one director of the Company is a Stockholder Nominee. Following the Director Period, (i) the Company may request that the Stockholder Nominee then on the Company's board of directors resign as a director of the Company, and (ii) promptly following the Stockholder's receipt of such a request, the Stockholder shall cause such Stockholder Nominee to resign immediately and relinquish all rights and privileges as a member of the Board. Any Board Observer shall be entitled to attend meetings Company's board of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companydirectors.

Board Representation. Effective upon the closing of the IPO and prior to the date of the Business Combination Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) Board or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the each Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an such contractual indemnification agreement in as is provided to the form attached hereto as Exhibit D. other directors of the Company. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital MarketNew York Stock Exchange, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company. If the Purchaser does not designate a Purchaser Designee prior to the date of the Business Combination Closing, its rights pursuant to this Section 9 shall terminate.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) The Company shall at or prior to the Closing Date cause three vacancies, constituting a non-voting observer majority of the Board of Directors, to be created on its Board of Directors, and on the Closing Date shall cause each of Messrs. Xxxxx Xxxx, Xxxx Xxxxxxx and Xxxxxxx Xxxxxx, who have been designated by the Purchasers to be elected to its Board of Directors. For at least two (a “2) years after the Closing Date, one member of the Board Observer”) of Directors shall be an independent director and one director shall be the Chief Executive Officer of the Company’s board of directors (the “Board”) or . (b) elected as a member Commencing with the annual meeting of stockholders of the Board. Any Company immediately following the election of such persons to the Board Observer of Directors, and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to attend meetings of the Board, and nominate (in addition to receive all information provided any rights granted to the members holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board during of Directors. The Company shall cause such nominees of the period Purchasers to be included in which such person is a Board Observer; provided, that the slate of nominees recommended by the Board Observer to the Company's stockholders for election as directors, and the Company shall not be use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s deathvote, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice Chief Executive Officer of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted designated by the NASDAQ Capital MarketPurchaser and Xx. Xxxxxx XxXxxxxxx, or such other exchange on which shall recommend two nominees for election as directors at the Company’s securities are then traded. first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date). (c) In the event any nominee of the Purchaser designates Purchasers shall cease to serve as a Board Observer pursuant director for any reason, the Company shall use its best efforts to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, cause the vacancy resulting thereby to be filled by a nominee of the CompanyPurchasers.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Upon consummation of the Company’s board of directors (the “Board”) or (b) elected as a member purchase and sale of the Board. Any Board Observer Series B Preferred Stock and the Warrant pursuant to Section 2.1 hereof, Purchaser shall be entitled to attend meetings designate for appointment to the Board of Directors six (6) out of the Board, and to receive all information provided to the ten (10) members of the Board during of Directors, which designees (the period in which such person is a Board Observer; provided, that "Purchaser Designees") shall be distributed evenly among the three classes of members of the Board Observer of Directors. Prior to the Closing, Company shall not take all necessary corporate action to increase the size of its Board of Directors to ten (10) members and obtain all necessary resignations in consultation with Purchaser for existing directors to enable all six Purchaser Designees to be appointed to the Board of Directors, and Company shall cause the Board of Directors to fill the vacancies created thereby by electing the Purchaser Designees effective as of the Closing. If a vacancy shall exist on the Board of Directors as a result of the resignation, removal, death or failure to stand for re-election of a Purchaser Designee, Purchaser shall be entitled to vote on any matter submitted designate a successor who shall be appointed to the Board of Directors by the remaining Directors. If a vacancy shall exist on the Board of Directors as a result of the resignation, removal, death or any failure to stand for re-election of its committees nor a Continuing Director (as such term is defined in Article IX of Company's Restated Certificate of Incorporation), the remaining Continuing Directors shall be entitled to offer any motions or resolutions designate a successor who shall be appointed to the Board or such committees. In of Directors by the event remaining directors pursuant to the recommendation of the Purchaser Designee’s deathremaining Continuing Directors. If, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the number of directors of Company is increased by virtue of any right to designate a replacement Purchaser Designee. In of security holders (in the event dividends or other payments provided for under the terms of such securities are not made, or otherwise), then such increase shall include a sufficient number of directors of the Company, who shall be designated by Purchaser designates a Purchaser Designee to be elected and appointed to the Board pursuant to clause (b) above, of Directors by the Sponsor hereby Continuing Directors so that Purchaser's Designees shall constitute a majority of such increased Board of Directors. Purchaser agrees that it shall vote all Company securities beneficially owned by it that are entitled to vote all of its shares in the Company election of directors in favor of the Continuing Directors' designees for election or re-election as Continuing Directors until the first election of directors following the Purchaser Designeepayment of the distribution contemplated by Section 6.14 of this Agreement, and that it will require any transferee of any such Company securities (other than transferees that acquire such securities in a registered public offering or in a transaction pursuant to Rule 144 of the Securities Act) to agree to vote such securities in the manner provided herein. For so long as Purchaser is obligated to vote for the Continuing Directors' designees, no Purchaser Designee shall be entitled deemed to an indemnification agreement be a Continuing Director for purposes of Article IX of Company's Restated Certificate of Incorporation. (b) Prior to the Closing, Purchaser shall timely furnish to Company all information concerning the Purchaser Designees required to be included in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access information statement referred to any material or meeting or portion thereof if: (iin Section 7.2(d) the Board concludes in good faith, upon advice of the Company’s counsel, so that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board information may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companybe included in that information statement.

Board Representation. Effective upon Unless otherwise increased by a majority of the IPO ClosingHolders of the issued and outstanding Securities in accordance with the DGCL, the Purchaser Board shall consist of nine (9) directors, five being appointed by the HMTF Group, two being appointed by the BSMB Group, one being appointed by the Trust (each of HMTF Group, BSMB Group and the Trust, a "Nominating Holder," and each such director so appointed, a "Party Designee") and one of whom shall be the chief executive officer of the Company. To the extent that the Board is increased as contemplated in the preceding sentence, the HMTF Group shall always (subject to Section 2.1.3) have the right to appoint a majority of the Board and, so long as the HMTF Group has the right to and does appoint a majority of such increased Board, the BSMB Group shall have the right (subject to designate one individual (the “Purchaser Designee”Section 2.1.3) to appoint that percentage of the members of the increased Board (and the Board shall be further increased if reasonably required to so accomplish the desired result) that is as close as practicable to the ratio of seven (7) board members for the HMTF Group for every three (3) board members for the BSMB Group. Each Holder shall vote his or its shares of Securities at any regular or special meeting of stockholders of the Company or in any written consent executed in lieu of such a meeting of stockholders and shall take all other actions required by the DGCL to give effect to the agreements contained in this Stockholders' Agreement (including without limitation the election of persons designated by the Nominating Holders to be elected as directors as described in the preceding sentence) and to ensure that the certificate of incorporation of the Company and bylaws of the Company as in effect immediately following the Effective Date do not, at any time thereafter, conflict in any respect with the provisions of this Stockholders' Agreement. In order to effectuate the provisions of this Section 2.1, each of the HMTF Group or the BSMB Group hereby agrees that when any action or vote is required to be taken by such Holder pursuant to this Stockholders' Agreement, such Holder shall use his or its best efforts to call, or cause the appropriate officers and directors of the Company to call, a special or annual meeting of stockholders of the Company, as the case may be, at Purchaser’s electionand each Holder agrees when any action or vote is required to be taken by such Holder pursuant to this Agreement, either (a) such Holder shall execute or cause to be executed a non-voting observer (a “Board Observer”consent in writing in lieu of any such meetings pursuant to Section 228(a) of the Company’s board of directors (the “Board”) or (b) elected as a member of DGCL if requested by the Board. Any committee formed by the Board Observer shall be entitled to attend meetings include one (1) or more representatives of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, HMTF Group and the Purchaser Designee shall be entitled BSMB Group unless otherwise consented to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyRequired Holders.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Until the earlier to occur of the Company’s board tenth anniversary of directors the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement and the date on which the Apollo/Blackstone Shareholders own, collectively, less than 20% of the Apollo/Blackstone Shares (the “Board”"Shareholder Designee Period"), the Board of Directors shall consist of no more than thirteen (13) or (b) elected directors during the Shareholder Designee Period. For so long as a member of the Board. Any Board Observer Apollo/Blackstone Shareholders are entitled to at least two Shareholder Designees under this Agreement, the Apollo/Blackstone Shareholders shall be entitled to attend meetings of the Board, and to receive all information provided to the members have one Shareholder Designee serve on each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as set forth below with respect to the Nominating Committee and other than such committees on which membership of a Shareholder Designee is prohibited by applicable law or by the rules of the New York Stock Exchange. (b) Immediately following the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, the Company will cause David Blitzer to be elected or appointed to the Board of Directors. Xx xxx xxxxs during the period Shareholder Designee Period, the Company agrees, subject to Section 3.1(d), to support the nomination of, and the Company's Nominating Committee (as defined herein) shall recommend to the Board of Directors the inclusion in which such person is the slate of nominees recommended by the Board of Directors to shareholders for election as directors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company ("Management Directors"), (ii) (A) five Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 80% or more of the Apollo/Blackstone Shares, (B) four Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 60% or more but less than 80% of the Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of the Apollo/Blackstone Shares, (D) two Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 20% or more but less than 40% of the Apollo/Blackstone Shares, and (E) one Shareholder Designee, so long as the Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of the Apollo/Blackstone Shares (each a Board Observer"Beneficial Ownership Threshold"); provided, however, that if at any time as a result of the Company's issuance of Voting Securities the Shareholders beneficially own 9% or less of the Actual Voting Power (the "Actual Voting Power Threshold"), the Apollo/Blackstone Shareholders shall be entitled to no more than three Shareholder Designees (even if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater number of Shareholder Designees pursuant to clauses (A) through (E) above), and (iii) such other persons, each of whom is (A) recommended by the Nominating Committee and (B) not an employee or officer of or outside counsel to the Company or a partner, employee, director, officer, affiliate or associate (as defined in Rule 12b-2 under the Exchange Act) of any Shareholder or any affiliate of a Shareholder or as to which the Shareholders or their affiliates own at least ten percent of the voting equity securities ("Unaffiliated Directors"). If any vacancy (whether by death, retirement, disqualification, removal from office or other cause, or by increase in number of directors) occurs prior to a meeting of the Company's stockholders, the Board (i) may appoint a member of management to fill a vacancy caused by a Management Director ceasing to serve as a director, (ii) shall appoint, subject to Section 3.1(d), a person designated by the Apollo/Blackstone Shareholders to fill a vacancy created by a Shareholder Designee ceasing to serve as a director (except as a result of the reduction of the number of Shareholder Designees entitled to be included on the Board of Directors by reason of a decrease in the Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or by reasons of a decrease in the Shareholders' beneficial ownership of Voting Securities below the Actual Voting Power Threshold), and (iii) may appoint a person who qualifies as an Unaffiliated Director and is recommended by the Nominating Committee pursuant to the procedures set forth in the following paragraph to fill a vacancy created by an Unaffiliated Director ceasing to serve as a director (provided, however, that in the case of a vacancy relating to an Unaffiliated Director, if a majority of the Nominating Committee is unable to recommend a replacement, then the Board seat with respect to this vacancy shall remain vacant), and each such person shall be a Management Designee, Shareholder Designee or Unaffiliated Director, as the case may be, for purposes of this Agreement. At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one or more persons to serve as Unaffiliated Directors (except with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Apollo/Blackstone Shareholders beneficially own less than 50% of the Apollo/Blackstone Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not be further amended by the Board of Directors during the Shareholder Designee Period. Notwithstanding the foregoing, the Company shall have no obligation to support the nomination, recommendation or election of any Shareholder Designee pursuant to this Section 3.1(b) or any other obligation under this Section 3.1 if the Apollo/Blackstone Shareholders are in breach of any material provision of this Agreement. (c) Upon any decrease in Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or any decrease in the Shareholders beneficial ownership of Voting Securities below the Actual Voting Power Threshold, the Apollo/Blackstone Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board Observer of Directors immediately thereafter will be equal to the number of Shareholder Designees which the Apollo/Blackstone Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, the Apollo/Blackstone Shareholders shall promptly cause all of the Shareholder Designees to offer to resign immediately from the Board of Directors and any committees thereof and the Company's obligations under this Section 3.1 shall terminate. (d) Notwithstanding the provisions of this Section 3.1, the Apollo/Blackstone Shareholders shall not be entitled to vote on designate any matter submitted person to the Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its committees nor outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to offer serve as a director of the Company or if the Company objects to a Shareholder Designee because such Shareholder Designee has been involved in any motions of the events enumerated in Item 2(d) or resolutions to the Board (e) of Schedule 13D or such committees. In person is currently the event target of the Purchaser Designee’s deathan investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, disability decree, or resignation from the Board prior to the Business Combination Closingjudgment of any court or agency prohibiting service as a director of any public company or providing investment or financial advisory services and, in any such event, the Purchaser Apollo/Blackstone Shareholders shall have withdraw the right to designation of such proposed Shareholder Designee and designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser therefor (which replacement Shareholder Designee to shall also be elected subject to the Board pursuant requirements of this Section). The Company shall use its reasonable best efforts to clause (b) above, notify the Sponsor hereby agrees Apollo/Blackstone Shareholders of any objection to vote all a Shareholder Designee sufficiently in advance of its shares in the date on which proxy materials are mailed by the Company in favor of the connection with such election of directors to enable the Purchaser Designee, and Apollo/Blackstone Shareholders to propose a replacement Shareholder Designee in accordance with the Purchaser terms of this Agreement. (e) Each Shareholder Designee serving on the Board of Directors shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access all compensation and stock incentives granted to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice directors who are not employees of the Company’s counsel, that such exclusion is reasonably necessary to preserve Company on the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designatesame terms provided to, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, subject to the Companysame limitations applicable to, such directors.

Board Representation. (a) Effective on the date hereof, the Board shall, except as otherwise provided below, be comprised of seven (7) Directors of whom: (i) two (2) shall be designees of the Investor Stockholders (the "Investor Representatives"), (ii) one (1) shall be a designee of ITI (the "ITI Representative"), (iii) one (1) shall be a designee of Eidelstein (the "Eidelstein Representative"), (iv) one (1) shall be jointly designated by ITI and Eidelstein (the "Joint Representative") and (v) the others shall be Independent Directors acceptable to the Investor Stockholders (with such consent not to be unreasonably withheld) who, commencing with the election of Directors at the next annual meeting of stockholders, have been elected by the holders of a majority of the outstanding Voting Securities. The initial Investor Representatives shall be Xxxxxxx X. Xxxxx and Xxxx X. Lama, the initial ITI Representative shall be Xxxxxxx Xxxxxx, the initial Eidelstein Representative Exhibit 10.13 shall be Xxxx Xxxxxxxxxx, and the initial Joint Representative shall be Xxxxxx Xxxxxx. If, at any time, ITI and Eidelstein are unable to agree upon the IPO Closingdesignation of a Joint Representative, the Purchaser Joint Representative shall have be designated by Xxxx Xxxxxx. Notwithstanding the right foregoing, at such time as an Independent Director acceptable to the Investor Stockholders (with such consent not to be unreasonably withheld) and the holders of a majority of the outstanding Voting Securities has been elected to the Board, the Investor Stockholders shall only be entitled to designate one individual (Investor Representative, and the “Purchaser Designee”) Investor Stockholders shall thereafter, as promptly as practicable, take all action necessary to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) cause one of the Company’s board of directors (Investor Representatives to resign from the “Board”) or . (b) elected The Company shall take such action as a member may be required under applicable law (i) to cause the Board to consist of the Boardnumber of Directors specified in clause (a), (ii) to include in the slate of nominees recommended by the Board the Investor Representatives, the ITI Representative, the Eidelstein Representative and the Joint Representative (collectively, the "Representatives"), with the remaining Directors to be Independent Directors acceptable to the Investor Stockholders (with such acceptance not to be unreasonably withheld) and (iii) to cause the Investor Representatives to be duly appointed in accordance with the foregoing and the Certificate of Designation. Any Board Observer shall be entitled The Company agrees to attend meetings use its reasonable best efforts to cause the election of the Representatives to the Board, and including nominating such individuals to receive all information be elected as Directors as provided to the members herein. (c) Each of the Board during the period in which such person is a Board Observer; providedInvestor Stockholders, that the Board Observer shall not be entitled ITI and Casty agrees to vote on vote, or act by written consent with respect to any matter submitted to the Board Voting Securities beneficially owned by him or any of its committees nor to offer any motions it, at each annual or resolutions to the Board or such committees. In the event special meeting of the Purchaser Designee’s death, disability stockholders of the Company at which Directors are to be elected or resignation from to take all actions by written consent in lieu of any such meeting as are necessary to cause the Board prior to Representatives designated by the Business Combination Closing, others in accordance with the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee terms of this Agreement to be elected to the Board pursuant and agrees to clause use his or its reasonable best efforts to cause the election of each such designee to the Board, including nominating such individuals to be elected as Directors. (bd) aboveIn the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Representative, the Sponsor remaining Directors and the Company shall cause the vacancy created thereby to be filled by a new designee of the party or parties that designated such Director as soon as possible, who is designated in the manner specified in this Section 2.1. Each of the Company, each Investor Stockholders, ITI and Casty hereby agrees to vote take, at any time and from time to time, all of its shares in actions necessary to accomplish the Company in favor same. Upon the written request of the election Investor Stockholders, ITI and/or Eidelstein, as the case may be, each of the Purchaser Designeeothers shall vote, or act by written consent with respect to all Voting Securities beneficially owned by him or it and otherwise take or Exhibit 10.13 cause to be taken all actions necessary to remove any Director designated by the Purchaser Designee former. Unless the Investor Stockholders, ITI and/or Eidelstein, as the case may be, shall be entitled otherwise request in writing, none of the others shall take any action to an indemnification agreement in cause the form attached hereto as Exhibit D. The Company may exclude removal of any Board Observer from access to any material or meeting or portion thereof if: Director designated by the former. (ie) Without the Board concludes in good faithwritten consent of the Investor Stockholders, upon advice each of the Company’s counsel, ITI and Casty agrees not to take any action that such exclusion is reasonably necessary would cause the number of Directors constituting the entire Board to preserve be other than seven (7). (f) The covenants and agreements set forth herein shall be subject to the attorney-client privilege between fiduciary obligations of the designees of the Investor Stockholders, ITI and Eidelstein now or hereafter serving on the Board and shall not prevent the designees of the Investor Stockholders, ITI or Eidelstein now or hereafter serving on the Board from taking any action or refraining to take any action while acting in the capacity as a Director of the Company. The foregoing shall not limit the obligations of the Investor Stockholders, ITI and Eidelstein in their capacity as stockholders of the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyhereunder.

Board Representation. Effective upon the IPO Closing, the Purchaser (a) Each of USRG and ETP shall have the right to designate one individual Qualified Director for election to the Company’s Board of Directors, upon the terms and conditions set forth in this Section 2. The Nominating Committee shall recommend to the Board of Directors that one Qualified Director designated by each of USRG and ETP (the each a “Purchaser Director Designee”) be elected to beserve as a director and the Board of Directors shall use its reasonable efforts to cause the election of such designated Qualified Director with a term of office beginning no later than concurrently with or immediately following the Closing and, at Purchaser’s electionif the Board of Directors is classified, either (a) a non-voting observer (a “Board Observer”) ending no earlier than the third annual meeting of stockholders of the Company following the Closing. The identification of a Director Designee by each of USRG and ETP shall occur in time sufficient (as reasonably established by the Board of Directors) for such Director Designee’s name to be included in the prospectus used in connection with the marketing of the Planned Public Offering and such Director Designee shall furnish such Director Designee’s consent to be named as a director in such prospectus in form reasonably requested by the Company’s board of directors (the “Board”) or . (b) elected In the event that any Director Designee shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled with a Qualified Director designated by the person, USRG or ETP, as the case may be, that designated the Director Designee that so ceases to serve; provided that USRG and ETP shall not be obligated to designate an individual to fill such vacancy. (c) The Company agrees with USRG that if Xxxxxxxx Xxxx is serving on the Board of Directors as the Director Designee of USRG and he is an Independent Director, then Xxxxxxxx Xxxx shall be appointed a member of the BoardNominating Committee. Any The Company further agrees with ETP that if Xxxxx Xxxxxxxx is serving on the Board Observer of Directors as the Director Designee of ETP, he is an Independent Director and Xxxxxxxx Xxxx is not serving on the Nominating Committee, then Xxxxx Xxxxxxxx shall be entitled to attend meetings appointed a member of the Board, Nominating Committee. (d) The agreements set forth in this Section 2 shall terminate and be of no further force or effect upon the earliest to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof ifoccur of: (i) the Board concludes in good faithdate that is the third anniversary of the Closing, upon advice (ii) the date of a Change of Control of the Company’s counsel, that such exclusion is reasonably necessary and (iii) if the Closing has not occurred on or before June 30, 2012, on July 1, 2012. In addition, as to preserve each of USRG and ETP, the attorney-client privilege between agreements set forth in this Section 2 benefiting each of USRG and ETP shall terminate and be of no further force or effect as to it upon the Company and such counsel; or (ii) such portion date following the Closing when it ceases to be the beneficial owner of a meeting is an executive session limited solely to independent director members at least 50% of the Board, independent auditors and/or legal counsel, as Series B Preferred Stock it would be entitled to receive if the Board may designate, and shares of Series A Preferred Stock that it owns of record on the Board Observer date hereof were converted pursuant to the provisions of Section F of Article IV of the Second Restated Certificate (assuming the Board Observer were a member over-allotment option of the Boardunderwriters for Planned Public Offering is not exercised) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Marketor, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, prior to the CompanyClosing, on the date when it ceases to beneficially own at least 50% of the Series A Preferred Stock that it owns of record as of the date hereof.

Board Representation. Effective For so long as the Purchaser beneficially owns a number of Series A Shares and/or Ordinary Shares issued upon conversion of Series A Shares equal to at least seventy-five percent (75%) of the IPO ClosingSeries A Shares issued at the Closing (in each case, as appropriately adjusted for share splits, reverse share splits, share dividends, share consolidations, recapitalizations and the like), the Company shall procure that, and each Shareholder and each Founder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder and such Founder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that, at annual or extraordinary general meetings of shareholders, pursuant to written consent of the shareholders, or by actions by the Board , the Purchaser shall have the exclusive right to designate one individual appoint and elect two (2) directors of the Board (the “Purchaser Designee”) to beDirectors,” and each, at Purchaser’s election, either (a) a non-voting observer (a “Board ObserverPurchaser Director”). The initial Purchaser Directors shall be Xxxxxx X. Xxxx and Xxxxxxxx Xx. For so long as the Purchaser beneficially owns a number of Series A Shares and/or Ordinary Shares issued upon conversion of Series A Shares equal to at least fifty percent (50%) of the Company’s board of directors Series A Shares issued at the Closing, but less than seventy-five percent (the “Board”75%) or (b) elected as a member of the Board. Any Board Observer Series A Shares issued at the Closing (in each case, as appropriately adjusted for share splits, reverse share splits, share dividends, share consolidations, recapitalizations and the like), the Company shall procure that, and each Shareholder and each Founder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder and such Founder has voting control, from time to time and at all times, in whatever manner as shall be entitled necessary to attend ensure that, at annual or extraordinary general meetings of shareholders, pursuant to written consent of the shareholders, or by actions by the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the exclusive right to designate a replacement appoint and elect one (1) Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected Director to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon (a) Immediately following Closing and during the IPO ClosingEarn-Out Period only, the Purchaser Seller shall have the right to designate appoint, and Sphere 3D shall cause such appointment upon the exercise of such right, one individual (nominee to the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (of the “Board”) or (b) elected Purchaser, which board shall consist of three directors, unless otherwise agreed by the parties. Subject to all necessary TSXV and regulatory approvals, to the extent applicable, such initial nominee shall be Xxxx Xxxxxxxxx until such time that Xx. Xxxxxxxxx becomes ineligible to serve as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event director of the Purchaser Designee’s deathpursuant to applicable laws, disability or resignation from at which time his successor shall be appointed by Seller (which appointment must be mutually agreed to by parties, acting reasonably). Following the Board prior to the Business Combination ClosingEarn-Out Period, the Purchaser shall consider, but shall not be obligated, to include Xx. Xxxxxxxxx as a director of the Purchaser to the extent that it reasonably determines that Xx. Xxxxxxxxx would be a valuable contributing member of the board. (b) Immediately following Closing, subject to consent by Xxxx Xxxxxxxxx and all necessary TSXV and regulatory approvals, Purchaser and Sphere 3D shall consider, but shall not be obligated, to include Xx. Xxxxxxxxx to the nomination of the full slate of directors of Sphere 3D in accordance with Sphere 3D’s constituent and other governing documents, to the extent it reasonably determines that Xx. Xxxxxxxxx would be a valuable contributing member of the board. The Seller shall have the no right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected request any substitute nominee to the Board pursuant board of directors of Sphere 3D if Xx. Xxxxxxxxx is unwilling or unable to serve in such capacity. (c) The rights of Seller and obligations of Purchaser and Sphere 3D under clause (b) above, of this Section 8.11 shall cease on the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof ifearliest of: (i) the Board concludes in good faith, upon advice voluntary termination of Xxxx Xxxxxxxxx as an employee of the Company’s counselPurchaser or Sphere 3D; (ii) the termination by “Cause” of Xxxx Xxxxxxxxx by the Purchaser of Sphere 3D, that such exclusion is reasonably necessary to preserve as the attorneycase may be, as an employee of the Purchaser of Sphere 3D; (iii) the expiration of the Earn-client privilege between the Company and such counselOut Period; or (iiiv) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyotherwise set forth in this Agreement.

Board Representation. Effective From and after the date hereof until the Termination Date, each Stockholder on behalf of itself and its Affiliates agrees to hold all of the shares of Stock registered in its name (and any Securities of Santera issued with respect to, upon conversion of, or in exchange or substitution of the IPO ClosingStock, and any other voting securities of Santera subsequently acquired by such Stockholder) subject to, and to vote its Stock at each meeting of stockholders (and in each written consent of Santera's stockholders) in accordance with the Purchaser provisions of this Agreement so as to effect the following: (a) Each Stockholder shall have vote at each meeting of stockholders (and in each written consent of Santera's stockholders) each share of Stock owned by such Stockholder (or as to which such Stockholder has voting power) to ensure that the size of the Board shall be set and remain at five (5) or seven (7) directors. (b) For so long as Stockholders holding shares of Series A Preferred Stock (excluding Tekelec, its wholly owned subsidiaries and any Tekelec Designees) in the aggregate own at least 31,000 shares of Series A Preferred Stock (as adjusted for any stock dividends, combinations, reverse stock splits, stock splits, recapitalizations, reorganizations, reclassifications or other similar event with respect to such shares), in any election of directors of Santera to elect the directors that such holders of Series A Preferred Stock are entitled to elect pursuant to the Amended and Restated Certificate of Incorporation, each Stockholder holding Series A Preferred Stock who has the right to designate vote its shares of Series A Preferred Stock for the election of directors shall vote all shares of Series A Preferred Stock then owned by such Stockholder (or as to which such Stockholder has voting power) as may be necessary to elect two (2) directors if the Board of Directors consists of five (5) directors, one individual of whom shall be nominated by Austin Ventures or its Affiliate and one of whom shall be nominated by Redpoint Ventures or its Affiliate and three (3) directors if the “Purchaser Designee”Board of Directors consists of seven (7) to bedirectors, at Purchaser’s election, either one (a) a non-voting observer (a “Board Observer”1) of whom shall be nominated by Austin Ventures or its Affiliate, one (1) of whom shall be nominated by Redpoint Ventures or its Affiliate and one (1) of whom shall be nominated by the Company’s board Stockholders holding a majority of the shares of Series A Preferred Stock (excluding Tekelec, its wholly owned subsidiaries and any Tekelec Designees). (c) For so long as Stockholders holding shares of Series A Preferred Stock (excluding Tekelec, its wholly owned subsidiaries and any Tekelec Designees) in the aggregate own at least 15,000 but less than 31,000 shares of Series A Preferred Stock (as adjusted for any stock dividends, combinations, reverse stock splits, stock splits, recapitalizations, reorganizations, reclassifications or other similar event with respect to such shares), in any election of directors of Santera to elect the directors that such holders of Series A Preferred Stock are entitled to elect pursuant to the Amended and Restated Certificate of Incorporation, each Stockholder holding Series A Preferred Stock who has the right to vote its shares of Series A Preferred Stock for the election of directors shall vote all shares of Series A Preferred Stock then owned by such Stockholder (or as to which such Stockholder has voting power) as may be necessary to elect one (1) director if the Board of Directors consists of five (5) directors, and one (1) director if the Board of Directors consists of seven (7) directors, in each case which director shall be nominated by the Stockholders holding a majority of the shares of Series A Preferred Stock (excluding Tekelec, its wholly owned subsidiaries and any Tekelec Designees). (d) For so long as Stockholders holding shares of Series A Preferred Stock (excluding Tekelec, its wholly owned subsidiaries and any Tekelec Designees) in the aggregate own less than 15,000 shares of Series A Preferred Stock (as adjusted for any stock dividends, combinations, reverse stock splits, stock splits, recapitalizations, reorganizations, reclassifications or other similar event with respect to such shares), in any election of directors of Santera to elect the directors that such holders of Series A Preferred Stock are entitled to elect pursuant to the Amended and Restated Certificate of Incorporation, each Stockholder holding Series A Preferred Stock who has the right to vote its shares of Series A Preferred Stock for the election of directors (including Tekelec, its wholly owned subsidiaries and any Tekelec Designees) shall vote all shares of Series A Preferred Stock then owned by such Stockholder (or as to which such Stockholder has voting power) as may be necessary to elect one (1) director if the “Board”Board of Directors consists of five (5) directors, and one (1) director if the Board of Directors consists of seven (7) directors, in each case which director shall be nominated by Tekelec or its Affiliate. (e) Whenever the holders of any class or classes of stock or series thereof are entitled to elect one or more directors pursuant to this Section 5.1, vacancies and newly created directorships of such class or classes or series shall be filled in accordance with the Amended and Restated Certificate of Incorporation, the Bylaws and applicable law. (f) For so long as the holders of any class or classes of stock or series thereof are entitled to elect such director pursuant to Section 5.1(a), 5.1(b) or 5.1(c), any director who was elected by a specified class or classes of stock or series thereof may be removed during such director's term of office only in accordance with the Amended and Restated Certificate of Incorporation, the Bylaws and applicable law. (bg) elected as a member Should the provisions of this Section 5.1 be construed to constitute the Board. Any Board Observer granting of proxies, such proxies shall be entitled to attend meetings deemed coupled with an interest and are irrevocable for the term of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.this Article V.

Board Representation. Effective upon (a) From and after the IPO ClosingClosing until Purchasers and/or their Affiliates no longer hold at least 10% of the outstanding Common Stock, the Purchaser Purchasers shall have the right to designate one individual (the “Purchaser Designee”1) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings ; from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 15% of the Boardoutstanding Common Stock, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser Purchasers shall have the right to designate a replacement Purchaser Designee. In second member of the event Board; from and after the Purchaser designates Closing until Purchasers and/or their Affiliates no longer hold at least 20% of the outstanding Common Stock, Purchasers shall have the right to designate a Purchaser Designee third member of the Board; from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 40% of the outstanding Common Stock, Purchasers shall have the right to be elected designate a fourth member of the Board; and from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 50% of the outstanding Common Stock, Purchasers shall have the right to designate a fifth member of the Board pursuant to clause (b) abovecollectively, the Sponsor hereby agrees to vote all of its shares in the "INVESTOR DIRECTORS"). The Company in favor of shall recommend the election of the Purchaser DesigneeInvestor Directors at each meeting of shareholders where the election of directors is considered and shall use its best efforts to cause the Investor Directors to be elected and re-elected to the Board. Purchasers shall have the right to remove or replace any of the Investor Directors by giving notice to such Investor Director and the Company, and the Purchaser Designee Company shall use its best efforts to effect the removal or replacement of any such Investor Director. Unless prohibited by applicable law, Investors shall have the right to have two Investor Directors, as determined by Purchasers, be members of each committee of the Board, and the Company shall use its best efforts to appoint and maintain such Investor Directors on each committee of the Board, as requested by Purchasers. Any Investor Director who is not a member of a committee of the Board shall have the right to attend all meetings of such committee as a non-voting observer. (b) Subject to any limitations imposed by applicable law, the Investor Directors shall be entitled to an indemnification agreement the same perquisites, including stock options, reimbursement of expenses and other similar rights in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that connection with such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of person's membership on the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a every other non-employee member of the Board. (c) would not meet At the then-applicable standards for independence adopted Closing, unless otherwise approved by the NASDAQ Capital MarketCompany and Purchasers, or such other exchange on which the authorized number of members of the Board shall be nine (9). From and after the Closing until Purchasers and their Affiliates no longer own at least 15% of the outstanding Common Stock, the Board shall include the Company’s securities are then traded. In 's Chief Executive Officer and the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer remaining directors shall have no duties, fiduciary or otherwise, to the Companybe independent directors not affiliated with management.

Board Representation. Effective upon Subsequent to the IPO Closingtransfer of the Shares, the Purchaser EchoStar shall have the right to designate one individual (1) representative (the “Purchaser Designee”"Representative") to be, at Purchaser’s election, either (a) a nonbe elected to the E-voting observer (a “Sat Board Observer”) of the Company’s board of directors Directors (the “"Board”") or (b) and, upon DBSI's receipt of written notice of EchoStar's designation of a Representative, the DBSI Parties agree to use their best efforts to cause the Representative to be elected as a member of to the Board. Any Board Observer E-Sat's Articles of Incorporation will be amended to include such right. The form of the amendment to be filed, and a voting rights agreement between EchoStar and DBSI, each of which must be reasonably agreeable to both DBSI and EchoStar, shall be entitled attached as Exhibits to attend meetings this Agreement as expeditiously as possible, and in any event prior to consummation of sale of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committeesShares. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior any disagreement with respect to the Business Combination Closingappropriate wording, the Purchaser Parties hereby agree that the senior corporate law professor at the University of Denver (the "Professor") shall have be jointly retained by the right Parties to designate a replacement Purchaser Designee. In prepare for the event Exhibits (and ultimately for signing and filing by the Purchaser designates a Purchaser Designee to be elected to Parties) the Board pursuant to clause (b) abovelanguage the Professor, in his or her sole judgement, believes best reflects and implements the Sponsor hereby agrees to vote all of its shares in the Company in favor intent of the election Parties as summarized in this section. The judgement of the Purchaser DesigneeProfessor shall irrevocably bind the Parties. The Parties all agree to sign such documentation as the Professor may request or require fully indemnifying the Professor for his or her actions. The amendment shall be filed, and the Purchaser Designee voting agreement shall be entitled signed, contemporaneous with sale of the Shares from EchoStar to an indemnification agreement in DBSI. Prior to the form attached hereto as Exhibit D. The Company may exclude designation of the Representative (and at any times that EchoStar declines to place a Representative on the E-Sat Board Observer from access to any material or meeting or portion thereof if: (i) of Directors), EchoStar will be notified of all meetings of the Board concludes in good faithand an individual, upon advice selected by EchoStar, will be permitted to attend and observe all such meetings ("Observer Rights"). While exercising Observer Rights, EchoStar will not disclose or otherwise disseminate to third parties any confidential information gained as a result of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; attendance at any meetings or (ii) such portion received as a result of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board EchoStar's Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyRights.

Board Representation. Effective upon (a) From and after the IPO Closingdate on which the Purchaser converts the Notes or Preferred Stock, as the case may be, into shares of Common Stock, the Company shall nominate and use its best efforts to have (i) two directors appointed by the Purchaser (the "Purchaser Designees") elected to the Board of Directors for as long as the Purchaser Beneficially Owns at least 33-1/3% of the shares of Common Stock acquired by it hereunder and (ii) one Purchaser Designee elected to the Board of Directors for as long as the Purchaser Beneficially Owns less than 33-1/3% of the shares of Common Stock acquired by it hereunder, but at least 5% of the Common Stock. For so long as such membership does not conflict with any applicable law or regulation or listing requirement of the NYSE, at least one such Purchaser Designee shall serve as a member of each of the principal committees of the Board of Directors, except for any committee formed to consider a transaction between the Company and the Purchaser or an Affiliate of Purchaser. Any vacancy in the position of a Purchaser Designee may be filled only with another designee designated by the Purchaser in accordance with the terms hereof. Any vacancy created by any removal of a Purchaser Designee may also be filled at the direction of the Purchaser. (b) The Purchaser shall have the right to designate have one individual observer (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “"Board Observer”") of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend all meetings of the Board, Board of Directors commencing immediately and to receive all information provided in addition to the members Purchaser Designees for so long as the Purchaser has the right to appoint at least two directors pursuant to Section 5.9(a) or as a holder of the Board during Notes or the period in which Preferred Stock. For so long as such person is a Board Observer; provided, that attendance does not conflict with any applicable law or regulation or listing requirement of the NYSE the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate attend meetings of each of the principal committees of the Board of Directors, except for any committee formed to consider a replacement Purchaser Designee. In transaction between the event Company and the Purchaser designates or an Affiliate of Purchaser. The Board Observer shall receive a Purchaser Designee to be elected copy of all notices, agendas and other materials distributed to the Board pursuant of Directors, whether provided to clause (b) abovedirectors in advance or, during or after any meeting, regardless of whether the Sponsor hereby agrees to vote all of its shares Board Observer shall be in attendance at the meeting; provided, however, that the Company in favor of shall have the election of right to withhold any information from the Purchaser Designee, Board Observer and to exclude the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) if access to such information or attendance at such meeting could, in the Board concludes in good faith, upon advice reasonable judgment of the Company’s 's outside counsel, that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and such counsel; its counsel or the Company's attorneys' work product. The Company will use its best efforts to ensure that withholding of information or restricting attendance is strictly limited only to the extent set forth in the preceding sentence. The Board Observer shall be reimbursed for reasonable out-of-pocket expenses incurred in connection with attending meetings, in a manner consistent with the Company's policies for reimbursement of outside directors. The Board Observer shall execute a confidentiality agreement reasonably satisfactory to the Company as a condition to the Board Observer attendance at meetings of the Board of Directors. As a condition to his election or appointment to the Board of Directors pursuant to the terms of the Certificate of Incorporation, the Notes or this Agreement, each Purchaser Designee , Warburg Designee (as defined in the Note) and Preferred Stock Director (as defined in the Charter Amendment) shall ratify in writing the resolutions unanimously adopted by the Board of Directors regarding the obligation of directors to maintain the confidentiality of matters subject to the attorney-client privilege between the Company and its counsel and the Company's attorneys' work product, substantially in the form attached as Schedule 5.9 hereto. (c) During the Standstill Period, the rights to appoint Purchaser Designees shall not be transferable or assignable by Warburg Pincus Private Equity VIII, L.P. other than to a member of the Purchaser Group pursuant to Section 7.1(c) below. Thereafter, in connection with a transfer of its Securities, the Purchaser may transfer or assign (i) its rights pursuant to Section 5.9(a)(i) to any one Person or Group acquiring at least 33-1/3% of the shares of Common Stock acquired by Purchaser hereunder or (ii) such portion of a meeting is an executive session limited solely its rights pursuant to independent director members Section 5.9(a)(ii) to any one Person or Group who would Beneficially Own at least 5% of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member Common Stock of the Board) would not meet Company solely as a result of the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event acquisition of shares of Common Stock acquired from the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companythat were acquired hereunder.

Board Representation. Effective upon Each Party, severally and not jointly, agrees with the IPO ClosingCompany to take all Necessary Action to cause (x) the Board to be comprised of seven (7) directors and (y) those individuals to be nominated in accordance with this Article 3, initially: i. three of whom (the Purchaser shall “Sentinel Designees” and each a “Sentinel Designee”) have been nominated by the Xxxxxx Stockholder, initially designated as set forth on Exhibit 3(a) hereto, and thereafter designated pursuant to this Section 3.a.i or Section 3.d.ii, as applicable, and; provided that for so long as the Xxxxxx Stockholder has the right to designate two or more Sentinel Designees, one individual of the Sentinel Designees must qualify as an “independent director” under stock exchange regulations applicable to the Company; provided, further, that only for so long as the Xxxxxx Investors Beneficially Own a number of Voting Shares representing at least the percentage set forth below of the number of Voting Shares Beneficially Owned by the Xxxxxx Investors immediately after the Closing shown below, the Company shall, and the Parties shall, take all Necessary Action to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders of the Company, including at every adjournment or postponement thereof, at which directors are to be elected, that number of individuals designated by the Xxxxxx Stockholder that, if elected, will result in the Xxxxxx Stockholder having the number of directors serving on the Board that is shown in the column labeled “Number of Sentinel Designees” below; provided, further, that, notwithstanding anything in this Agreement to the contrary, after the number of Sentinel Designees is reduced because the percentage of Voting Shares Beneficially Owned by the Xxxxxx Investors is reduced, the Xxxxxx Stockholder cannot subsequently increase the number of Sentinel Designees entitled to be designated as a result of the acquisition of Beneficial Ownership of additional Voting Shares by the Xxxxxx Investors: 64% or greater 3 39% or greater, up to but not including 64% 2 14% or greater, up to but not including 39% 1 Less than 14% 0 ii. two of whom (the “Purchaser Sponsor Designees” and each a “Sponsor Designee”) have been initially designated as set forth on Exhibit 3(a) hereto, and thereafter designated pursuant to bethis Section 3.a.ii or Section 3.d.iii, as applicable; provided, that, only for so long as the Sponsor Investors Beneficially Own a number of Voting Shares representing at Purchaser’s electionleast the percentage set forth below of the number of Voting Shares Beneficially Owned by the Sponsor Investors immediately after the Closing shown below, either (a) a non-voting observer (a “the Company shall, and the Parties shall, take all Necessary Action to include in the slate of nominees recommended by the Board Observer”) for election as directors at each applicable annual or special meeting of stockholders of the Company’s board , including at every adjournment or postponement thereof, at which directors are to be elected, that number of individuals designated by the Sponsor that, if elected, will result in the Sponsor having the number of directors serving on the Board that is shown in the column labeled “Number of Sponsor Designees” below; provided, further, that, notwithstanding anything in this Agreement to the contrary, but subject in all respects to the last sentence of this Section 3.a.ii, after the number of Sponsor Designees is reduced because the percentage of Voting Shares Beneficially Owned by the Sponsor Investors is reduced, the Sponsor cannot subsequently increase the number of Sponsor Designees entitled to be designated as a result of the acquisition of Beneficial Ownership of additional Voting Shares by the Sponsor Investors. Notwithstanding the foregoing, when calculating the percentage of Voting Shares Beneficially owned by the Sponsor Investor on any date of determination, each of the number of Voting Shares held on such date of determination and the number of Voting Shares Beneficially owned by the Sponsor Investors immediately after the Closing shall be deemed to include any Earn-out Shares (as defined in the Sponsor Agreement) vested in accordance with the Sponsor Agreement as of such date of determination: 50% or greater 2 25% or greater, up to but not including 50% 1 Less than 25% 0 iii. one of whom (the “BoardOther Designee”, together with the Sentinel Designees and the Sponsor Designees, the “Designees”) or (bhas been initially designated as set forth on Exhibit 3(a) elected hereto and shall thereafter be designated as a member of determined by the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to Other Designee must qualify (1) in the determination of the Board or any of its committees nor as an “independent director” under stock exchange regulations applicable to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii2) such portion as an “audit committee financial expert” within the meaning of a meeting is an executive session limited solely to independent director members U.S. Securities and Exchange Commission Regulation S-K. iv. one of whom (the “CEO Director”) shall be the individual serving as the Chief Executive Officer of the Board, independent auditors and/or legal counsel, as the Board may designate, Company and the Board Observer (assuming the Board Observer were a member of the Boardwho is initially set forth on Exhibit 3(a) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyhereto.

Board Representation. Effective upon (a) Within 15 business days after the IPO Closingexecution of this Agreement, the Purchaser Investors shall notify the Board in writing of the names of five individuals (which may include one or more members of senior management of the Company) that the Investors designate as the individuals who shall be appointed to the Board immediately after the Closing (it being understood that YAAF and YAAF Parallel each shall have the right to designate one individual such person, and that Investors collectively shall designate the other three such persons). Prior to the mailing to Company Stockholders of the Proxy Statement, the Investors shall have the right to revise their list of five individuals, and the individuals so designated (the “Purchaser DesigneeInvestor Director Designees”) shall be disclosed in the Proxy Statement, and such individuals shall consent to beserve if appointed. The Board shall have the right to consent to the Investor Director Designees designated by the Investors prior to the Closing, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or which consent shall not be unreasonably withheld. (b) elected as a member Within 15 business days after execution of this Agreement, the Board shall notify the Investors in writing of the Board. Any Board Observer shall be entitled names of up to attend meetings six individuals who are independent directors of the Board, Company as of the date of this Agreement and who the Board designates as the directors who intend to receive all information provided to the remain as members of the Board during following the period in which such person is a Board Observer; providedClosing. Prior to the mailing to the Company Stockholders of the Proxy Statement, that the Board Observer shall not have the right to revise or supplement its list of up to six individuals, and the individuals so designated (the “Continuing Independent Directors”) shall be entitled disclosed in the Proxy Statement, and such individuals shall consent to vote on any matter submitted continue to serve as directors following the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. Closing. (c) In the event that, at any time prior to the mailing to the Company Stockholders of the Purchaser Designee’s deathProxy Statement, disability the number of named Continuing Independent Directors shall be less than six, the Board and the Nominating Committee of the Board shall use all reasonable efforts to recruit additional individuals who meet the requirements of Section 2.01(a)(ii) of the Stockholders Agreement and who shall consent to serve as independent directors of the Company after the Closing (the “New Independent Directors”), provided, however, that immediately prior to the Closing, the aggregate number of named Continuing Independent Directors and New Independent Directors may be either less than or resignation from equal to six. The Investors shall have the right to consent to the New Independent Directors designated by the Board prior to the Business Combination Closing, which consent shall not be unreasonably withheld. (d) Immediately prior to the Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to Company and the Board pursuant shall take all actions necessary to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) increase the Board concludes in good faithauthorized number of directors to eleven, upon advice (ii) cause those directors of the Company who are not Continuing Independent Directors to resign from the Board, and (iii) effective as the Closing, appoint the Investor Director Designees and the New Independent Directors as directors of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective (a) The Board shall consist of up to nine members. The Purchaser shall be entitled to designate nominees for election or appointment to the Board (the “Purchaser Representatives”) as follows: (i) so long as the Purchaser holds at least 90,000 Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the IPO ClosingConvertible Preferred Shares), it shall be entitled to designate three Purchaser Representatives; (ii) so long as the Purchaser holds at least 45,000 Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares), it shall be entitled to designate two Purchaser Representatives; and (iii) so long as the Purchaser holds at least 22,500 Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares), it shall be entitled to designate one Purchaser Representative. The parties hereto acknowledge and agree that the Purchaser is entitled to appoint certain designees to the Company's Board of Directors pursuant to the terms of the Special Voting Preferred Shares and that this provision is intended to be in furtherance of such rights. In no event will this Section 2.1 be construed to duplicate the rights granted to the Purchaser pursuant to the terms of the Special Voting Preferred Shares. The Purchaser shall not Transfer any of the Special Voting Preferred Shares. In the event that the Purchaser no longer holds any Special Voting Preferred Shares and is therefore not entitled to elect directors to the Company’s Board of Directors pursuant to the terms thereof, this Section 2.1 shall be controlling. (b) The Purchaser acknowledges that three Purchaser Representatives were elected to the Board at the Meeting. Subject to the Purchaser’s Representative(s) consenting and writing to serve as a director of the Company, the Company shall cause the Purchaser Representative(s) to be included as nominees proposed by the Board to the Shareholders for election to the Board at each future meeting of the Shareholders where directors are to be elected by Shareholders. The Company shall use its reasonable commercial efforts to cause the election of such Purchaser Representative(s) at such meetings and shall solicit proxies in favour of the election of such Purchaser Representative(s) at such meetings. (c) The Purchaser shall advise the Company of the identity of any Purchaser Representative at least 50 days prior to any meeting of Shareholders at which directors of the Company are to be elected or within 10 days of being notified of the record date for such a meeting. If the Purchaser does not advise the Company of the identity of any Purchaser Representative prior to such deadline, then the Purchaser will be deemed to have nominated its encumbent nominee. Any nominations by the Purchaser shall be subject to such nominee being acceptable to the Company’s corporate governance and nominating committee, acting reasonably. (d) In the event that any Purchaser Representative shall cease to serve as a director of the Company, whether due to such Purchaser Representative’s death, disability, resignation or removal, the Company shall cause the Board to appoint a replacement Purchaser Representative designated by the Purchaser to fill the vacancy created by such death, disability, resignation or removal. (e) The Purchaser shall promptly notify the Company in writing if ceases to hold at least 90,000, 45,000 or 22,500, as the case may be, Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares). In addition, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) deliver a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, certificate to the Company, from time-to-time as the Company shall reasonably request, certifying the number of securities of the Company beneficially owned by the Purchaser as at the date of such certificate.

Board Representation. Effective upon (a) The Company shall take all permissible corporate action such that on the IPO First Closing Date and subject to Sections 5.15(c), the size of the Board shall be set at nine (9) members and, four (4) individuals designated by the Purchaser Group (each director designated by the Purchaser Group under this Agreement (including Section 5.14 hereof), a “Purchaser Designee,” and collectively, the “Purchaser Designees”) as Board nominees shall be appointed to the Board. On the First Closing Date, the resignation of the Resigning Directors shall become effective pursuant to the terms of the Resignation Letters. Notwithstanding anything contained herein to the contrary, the Purchasers shall be permitted, in their discretion, to defer appointment of one or more of the Purchaser Designees to one or more dates subsequent to the dates specified in this Agreement. (b) As promptly as practical after the date hereof, the Company shall identify, and no earlier than the First Closing Date and in no event later than the 90th day following the First Closing Date, the Company shall appoint to the Board, a person who qualifies as an independent director pursuant to the listing requirements of the TSX and who is an industry expert with operating experience in the industry of the Company and is reasonably acceptable to the Purchasers and the Company (such person, the “Identified Independent Director”). The earlier to occur of the date on which the Identified Independent Director is appointed to the Board and the 90th day following the First Closing Date shall be referred to herein as the “Appointment Date”. (c) Prior to the Appointment Date and after the first Subsequent Closing (provided that one Lions Designee shall have resigned from the Board as contemplated by proviso to Section 5.15(d)(ii)), the Purchaser Group shall only be entitled to designate three (3) Purchaser Designees. After the first Subsequent Closing, the size of the Board shall be set at seven (7) members or other such other number as has been approved by the Board and the Purchasers pursuant to Section 5.10(c)(ii). (d) Subject to Section 5.15(a) from and after the First Closing Date, the Company shall cause: (i) the Purchaser Designees to be nominated by the Company to serve on the Board for so long as the Purchaser Group has beneficial ownership of Common Shares in an amount equal to at least fifty percent (50%) of the Common Shares (excluding for clarity Common Shares underlying the Initial Investment Warrant Agreement) issued to Purchasers on the First Closing Date; provided that at least one Purchaser Designee shall at all times be an industry expert with operating experience in the industry of the Company, which may be a consultant or advisor to the Purchasers or their Affiliates (such person, the “Purchaser Designee Industry Expert”); (ii) two (2) individuals designated by Lions Capital (each director designated by Lions Capital, a “Lions Designee”) to be nominated by the Company to serve on the Board for so long as Lions Capital has beneficial ownership of Common Shares in an amount equal to at least fifty percent (50%) of the Common Shares (excluding for clarity Common Shares underlying the Initial Investment Warrant Agreement) issued to Purchasers on the First Closing Date; provided, however, effective as of the first Subsequent Closing Date, one of the Lions Designees shall resign and from and after such Subsequent Closing Date there shall only be one (1) Lions Designee, each in accordance with the Lions Capital Nomination Agreement; (iii) the Chief Executive Officer of the Company to be nominated by the Company to serve on the Board; (iv) two (2) individuals to be nominated by the Company to serve on the Board that are independent of the Purchasers, Lions Capital and the Company, one of which shall be the Identified Independent Director; and (v) the Board to nominate the Purchaser Designee Industry Expert as the Chairman of the Board, so long as such individual remains independent of the Company under Section 1.4 of National Instrument 52-110-Audit Committees. In the event either the Purchaser Group or Lions Capital no longer have beneficial ownership of Common Shares in the amounts set forth in clauses (i) and (ii) of this Section 5.15(d), the Company may cause the Purchaser Designees or Lions Designees, as the case may be, to be replaced with nominees independent of the Purchasers, Lions Capital and the Company. (e) In the event that the Purchasers consent to a change in the size of the Board as contemplated by Section 5.10(c)(ii), unless otherwise waived by the Purchasers, the Purchasers shall have the right to designate one individual that number of Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less than that set forth in Section 5.15(d). For so long as such membership does not conflict with any Applicable Law or regulation or listing requirement of the TSX or any Approved Market on which the Common Shares are listed for trading (as determined in good faith by the “Board), the Purchaser Designees shall be entitled to serve as members of, or observers to, at the Purchaser Designee”) to be, at Purchaser’s election, either each of the committees of the Board, except for any committee formed to consider a transaction between the Company and a member of the Purchaser Group. The Company acknowledges that the Purchaser Designees intend to hold positions on the Board committees and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of the Purchaser Designees to any such committees (asubject to the limitations in the immediately preceding sentence). (f) Solely with respect to those Purchaser Designees that the Purchasers are entitled to designate pursuant to Sections 5.15(a) and/or 5.15(d) (and solely as long as the Purchasers remain entitled to so designate such Purchaser Designees): (i) The Company shall use its commercially reasonable efforts to have such Purchaser Designees elected as directors of the Company, including, without limitation, by naming such Purchaser Designees in the Company’s management information circular for the election of directors as part of “management’s slate”, soliciting proxies for such Purchaser Designees to the same extent as it does for any of its nominees to the Board, and including the recommendation of the Board in favour of election of the Purchaser Designees; provided, however, that the Company shall have no obligation to retain the services of an investment banker or proxy solicitation firm to solicit proxies. In the event a non-voting observer Purchaser Designee is not elected at a shareholders meeting at which such designee is up for election, the Company shall take such action as is within its control to cause such Purchaser Designee to be appointed to the Board. (ii) The Purchasers may at any time request a “Purchaser Designee to resign, with or without cause. Any vacancy caused by the resignation of Purchaser Designee shall only be filled with another Purchaser Designee. Any vacancy created by any removal of a Purchaser Designee or an election of the Purchasers to defer appointing one or more Purchaser Designees shall also only be filled with another Purchaser Designee. The Company shall not take any action to remove any Purchaser Designee or fill a vacancy reserved for a Purchaser Designee in each case without the consent of the Purchasers, except where the Purchaser Designee is disqualified to act as a director under the Business Corporations Act (British Columbia). Any replacement Purchaser Designees shall be appointed to the Board Observer”promptly following notice from the Purchasers and, in any event, within five (5) Business Days. (iii) Each Purchaser Designee shall be given notice of (in the same manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Company’s board Board, including all committee meetings with respect to committees on which such Purchaser Designee serves. Each Purchaser Designee shall receive a copy of all notices, agendas and other materials distributed to the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such Purchaser Designee will be in attendance at the meeting. (g) In addition to any other indemnification rights the “Board”) or (b) elected as Purchaser Designees have pursuant to this Agreement and the Organizational Documents, each such Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an Indemnification Agreement concurrent with such Purchaser Designee becoming a member of the Board. Any Board Observer shall be entitled to attend meetings In addition, concurrent with the execution of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the an Indemnification Agreement with each Purchaser Designee, and the Purchaser Designee Company shall be entitled to an indemnification agreement enter into the Indemnification Side Letter in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access shall maintain director and officer insurance covering the Purchaser Designees on the same terms and with the same amount of coverage as is provided to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director other members of the Board, independent auditors and/or legal counsel, as . The Company shall reimburse the reasonable expenses incurred by the Purchaser Designees in connection with attending (whether in person or telephonically) all meetings of the Board may designate, and or committees thereof or other Company related meetings to the same extent as all other members of the Board Observer are reimbursed for such expenses (assuming the Board Observer were a member of the Board) would not meet the thenor, in case any such expense reimbursement policy shall apply only to non-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwiseemployee directors, to the Companysame extent as all other non-employee directors). The Purchaser Designees shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, deferred share units, restricted stock and other equity and equity-related awards, as is provided to other non-employee directors. (h) The Company and the Purchasers shall take or cause to be taken all lawful action necessary to ensure at all times as of and following the Closing Date that the Company Organizational Documents are not inconsistent with the provisions of this Agreement and the Transaction Documents or the transactions contemplated hereby or thereby. (i) Except with the prior written consent of the Purchasers, in no event shall the Company (A) grant Lions Capital or any of its Affiliates the right to nominate any person to the Board, or as an observer to the Board, in any manner which inconsistent with or more expansive than the terms of Section 5.15(d)(ii) or (B) amend or waive any provision of the Lions Capital Nomination Agreement.

Board Representation. Effective upon (a) From the IPO ClosingClosing Date and until the date Sponsor, in the Purchaser shall have aggregate, beneficially owns (as such term is defined in Rule 13d-3 under the right to designate one individual Exchange Act) (“Beneficially Owns”) less than (i) 50% of the outstanding shares of New BAC Common Stock that are Beneficially Owned by Sponsor as of immediately following the Closing (the “Purchaser Sponsor First Sunset Date”), the individuals nominated for election or appointed as directors by or at the direction of the BAC Board shall include two (2) directors designated by Sponsor (each, a “Sponsor Designee”), and (ii) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) 5% of the Company’s board outstanding shares of directors New BAC Common Stock (the “BoardSponsor Second Sunset Date” and, together with the Sponsor First Sunset Date, the “Sponsor Sunset Dates”) ), the individuals nominated for election or (b) elected appointed as a member directors by or at the direction of the Board. Any BAC Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observerone (1) Sponsor Designee only; provided, that the occurrence of any Sponsor Sunset Date shall not shorten the term of any Sponsor Designee then serving on the BAC Board. (b) Prior to the occurrence of the Sponsor Second Sunset Date, the size of the BAC Board Observer shall not be entitled increased or decreased without the affirmative vote of the Sponsor Designees. (c) From the date of this Agreement until the Sponsor Second Sunset Date, BAC shall include the Sponsor Designees in the slate of nominees recommended by the BAC Board for election as directors at each applicable annual or special meeting of the stockholders of BAC, including at every adjournment or postponement thereof, at which directors are to vote on be elected. (d) The Sponsor Designees may resign at any matter submitted time upon written notice to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser BAC Board. (e) Sponsor shall have the exclusive right to designate the directors for election to the BAC Board to fill any vacancies created by reason of the death, removal or resignation of a Sponsor Designee, and BAC shall take all reasonably necessary action to cause any such vacancies to be filled by a replacement Purchaser Designee. In Sponsor Designee as promptly as reasonably practicable. (f) BAC agrees not to take, directly or indirectly, any actions (including removing directors in a manner inconsistent with this Agreement) that would knowingly frustrate, obstruct or otherwise affect the event provisions of this Section 6 and the Purchaser designates a Purchaser Designee to be elected intention of the parties hereto with respect to the composition of the BAC Board pursuant to clause (b) above, as herein stated. BAC shall recommend that the Sponsor hereby agrees to BAC stockholders vote all of its shares in the Company in favor of each Sponsor Designee. (g) BAC shall (i) purchase and maintain in effect at all times directors’ liability insurance in an amount and pursuant to terms determined by the election of BAC Board to be reasonable and customary, (ii) for so long as any Sponsor Designee nominated pursuant to this Agreement serves as a director on the Purchaser BAC Board, maintain such coverage with respect to such Sponsor Designee, and (iii) cause the Purchaser Designee organizational documents of BAC to at all times provide for the indemnification, exculpation and advancement of expenses of all directors of BAC to the fullest extent permitted under applicable Law. (h) BAC shall be entitled to an indemnification agreement pay all reasonable out-of-pocket expenses incurred by the Sponsor Designees in connection with the form attached hereto performance of his or her duties as Exhibit D. The Company may exclude a director and in connection with his or her attendance at any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary BAC Board. BAC shall enter into customary indemnification agreements with each Sponsor Designee from time to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companytime.

Board Representation. Effective upon (a) The Board shall, from and after the IPO Closingdate hereof and until a Change of Control or Qualified IPO, initially consist of eleven (11) Directors, of which initially (i) five (5) shall be designated by the Purchaser holders of Common Stock (the “Common Stock Directors”), and shall be nominated by a majority of the shares of Common Stock outstanding and entitled to vote thereon, (ii) five (5) shall be designated by the holders of Convertible Preferred (the “Convertible Preferred Directors”) and (iii) one (1) shall be the Chief Executive Officer, as long as such person serves as Chief Executive Officer of the Company and such successor as elected in connection with Article 6 Section G of the Charter. The Convertible Preferred Directors shall initially consist of (A) two (2) Directors designated by New Mountain, (B) two (2) Directors appointed by BSPI and (C) one (1) Director designated by an Other Appointing Stockholder, which shall initially be PSP. For the avoidance of doubt, nothing in this Agreement shall be construed to limit any rights to appoint directors or board observers granted to the Series A Preferred or the holders thereof pursuant to the Series A Preferred Stock Documents. (i) For so long as the Existing Stockholders and their Permitted Transferees hold at least 500,000 shares of Convertible Preferred, New Mountain and its Permitted Transferees shall have the right to designate one individual two (2) Convertible Preferred Director nominees to the Board (the “Purchaser DesigneeNew Mountain Preferred Directors”). (ii) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event that the Existing Stockholders and their Permitted Transferees hold less than 500,000 shares of Convertible Preferred that the Existing Stockholders held as of the Purchaser Designee’s deathClosing Date, disability or resignation then New Mountain and its Permitted Transferees shall lose the right to designate one (1) New Mountain Preferred Director, and one (1) New Mountain Preferred Director shall immediately resign from the Board prior (or New Mountain shall take all requisite action to cause such New Mountain Preferred Director to resign from his or her position or to remove such New Mountain Preferred Director from the Business Combination ClosingBoard), the Purchaser and BSPI shall have the right to designate either (i) an additional Convertible Preferred Director (which shall not be considered a replacement Purchaser Designee. In BSPI Director) with the event the Purchaser designates a Purchaser Designee consent of New Mountain, such consent not to be elected to the Board pursuant to clause unreasonably withheld, conditioned or delayed, (bii) abovea Qualified Director, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee whom shall be entitled subject to the consent of the affirmative vote of a majority of the outstanding shares of Convertible Preferred (which vote shall not be subject to the requirements of Section 2.1(h)) (a “Qualified Director Vote”) or (iii) designate an indemnification agreement in Other Appointing Stockholder pursuant to the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: terms of Section 2.1(d); provided, that if BSPI does not complete a designation contemplated by clause (i) the Board concludes in good faith), upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion or (iii) (including, in the case of clause (ii), the completion of a meeting is an executive session limited solely to independent director members Qualified Director Vote) within one hundred and eighty (180) days of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange date on which the Company’s securities are Existing Stockholders and their Permitted Transferees, as a group, ceased to hold at least 500,000 shares of Convertible Preferred, then traded. In such Convertible Preferred Director shall thereafter be elected by the event affirmative vote of a majority of the Purchaser designates outstanding shares of Convertible Preferred voting in such election from a Board Observer pursuant to clause slate of candidates nominated by any one or more Convertible Holders that individually or as a group holds Convertible Preferred having an initial purchase price as of the Closing Date of at least $100 million; provided that if no nominee receives the affirmative vote of a majority of the outstanding shares of Convertible Preferred, the two nominees who received the largest number of affirmative votes will participate in a runoff and the nominee who receives the largest number of votes of the outstanding shares of Convertible Preferred in such runoff shall be elected (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.a “

Board Representation. Effective upon (a) Contemporaneously with the IPO Closing, the Purchaser Board shall (i) increase the number of Directors that comprise the entire Board from seven (7) directors to ten (10) directors, (ii) subject to the terms of this Article III, appoint as directors the three individuals designated by the Peed Stockholder pursuant to Section 7.16 of the Merger Agreement (each of whom shall be considered a Stockholder Designee for all purposes of this Agreement) and (iii) appoint Peed as the Non-Executive Vice Chairman of the Board; provided, however, that each Stockholder Designee shall satisfy the applicable requirements set forth in Section 3.1(c). (b) During the Board Right Period, the Peed Stockholder shall have the right to designate one individual up to three individuals (the each, a “Purchaser Stockholder Designee”) ), who may include Peed, to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) be ‑11‑ members of the Company’s board Board. In the event that the Corporation at any time or from time to time increases or decreases the size of directors the Board, (i) the “Board”number of Stockholder Designees that the Peed Stockholder is entitled to designate shall be increased or decreased proportionately as the case may be (rounding up to the nearest whole number); provided that if the size of the Board is decreased to seven individuals, the Peed Stockholder shall only have the right to designate two Stockholder Designees; (ii) if the size of the Board is increased, such increase will not affect the tenure, term or (b) elected other rights to serve as a member of the Board of any Stockholder Designee then serving on the Board, and (iii) if the size of the Board is decreased such that the number Stockholder Designees that the Peed Stockholder is entitled to designate is decreased, then the Peed Stockholder shall cause one or more Stockholder Designees then serving on the Board to resign from the Board so that the number of Stockholder Designees serving on the Board equals the number of Stockholder Designees that the Peed Stockholder is entitled to designate following such decrease in the size of the Board. (c) Any person designated by the Peed Stockholder as a Stockholder Designee (i)(A) shall not be a person that would be required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D if such Stockholder Designee were the “person filing” such Schedule 13D, (B) shall not have engaged in a proxy contest or other activist campaign and (C) shall not be an employee, director or 5.0% or greater equity holder of any Person that is in Competition with the Corporation or any of its Subsidiaries, (ii) shall not be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or NASDAQ or pursuant to applicable Law (including applicable insurance Laws), (iii) shall, prior to his or her appointment to the Board, provide an executed resignation letter in substantially the form set forth in Exhibit A hereto automatically resigning from the Board and from any committees or subcommittees of the Board or the Corporation to which he or she is then appointed or on which he or she is then serving upon the occurrence of the Board Right Termination Event, in the event that he or she no longer meets the qualifications set forth in this Section 3.1(c) and (iv) other than the Peed Stockholder, shall qualify as an “independent director” (as defined in Rule 5605(a)(2) of the NASDAQ Listing Rules, or any successor rule thereto, as amended). (d) During the Board Right Period, the Corporation shall use its reasonable best efforts to procure, at each annual general meeting of stockholders of the Corporation occurring during the Board Right Period at which the term of an applicable Stockholder Designee will expire in accordance with the Corporation’s Organizational Documents, the election or re‑election, as the case may be, of the Stockholder Designees, including by (i) nominating such Stockholder Designees for election to serve as Directors as provided in this Agreement, (ii) subject to compliance by the Peed Stockholder with Section 3.1(f), including such nomination and other required information regarding such Stockholder Designee in the Corporation’s proxy materials for such meeting of stockholders and (iii) soliciting or causing the solicitation of proxies in favor of the election of such Stockholder Designees as Directors, for a term expiring at the next annual general meeting of stockholders of the Corporation, or at such earlier time, if any, as any Stockholder Designee may resign, retire, die or be removed (for any reason) as a Director (other than upon the occurrence of the Board Right Termination Event). Any Notwithstanding the foregoing, the Corporation shall not be obligated to nominate or to use its reasonable best efforts to cause to be elected as a Director any Stockholder Designee (1) who in the reasonable judgment (including with respect to applicable fiduciary duties) of the Nominating and Corporate Governance Committee of the Board Observer (the ‑12‑ “Nominating Committee”) fails to satisfy (i) the requirements set forth in Section 3.1(c) or (ii) the requirements set forth in the Corporation’s Organizational Documents, Corporate Governance Guidelines and Code of Conduct and Ethics included in the Investor Relations – Corporate Overview section of the Corporation’s website (located at xxxx://xxx.xxxxxxxxxxxx.xxx) as in effect (and as may be amended and amended and restated) from time to time, or because the Nominating Committee determines that recommending such Stockholder Designee for nomination for election as a Director would be reasonably likely to be inconsistent with its fiduciary obligations, or (2) if the Board reasonably determines that recommending such Stockholder Designee for election as a Director would be inconsistent with its fiduciary obligations; provided that if the Nominating Committee determines not to recommend a Stockholder Designee to the Board because the Nominating Committee determines such Stockholder Designee fails to meet the qualifications set forth above or because the Nominating Committee reasonably determines that recommending such Stockholder Designee for nomination for election as a Director would be inconsistent with its fiduciary obligations or if the Board determines not to nominate such Stockholder Designee for election to the Board because it has reasonably determined that recommending such Stockholder Designee for nomination for election as a Director would be inconsistent with its fiduciary obligations, the Peed Stockholder shall be entitled to attend meetings designate another natural person as a replacement Stockholder Designee (subject to compliance with the terms of this Article III with respect to such Stockholder Designee), and the Corporation shall (subject to the terms and conditions of this Section 3.1) use its reasonable best efforts to cause such Stockholder Designee to be elected or appointed to the Board. (e) In furtherance of, and to receive all information provided not in limitation to, the Peed Stockholder’s rights in this Section 3.1, during the Board Right Period, (i) the Peed Stockholder shall have the right (but not the obligation), upon written notice to the members Corporation as provided in Section 3.1(f), to designate a Stockholder Designee to replace any Stockholder Designee who shall have resigned, retired, died or been removed from office (for any reason) (other than upon the occurrence of the Board during Right Termination Event) or who, following the period in which voting of stockholders at a meeting of stockholders of the Corporation shall have failed to be elected or re‑elected, as the case may be, by the requisite vote of the Corporation’s stockholders; and (ii) subject to the provisions of this Article III, the Corporation shall promptly following the receipt of written notice from the Peed Stockholder as contemplated above following the resignation, retirement, death or removal from office of such person is a Board ObserverStockholder Designee, appoint such replacement Stockholder Designee to serve on the Board; provided, that the Board Observer shall not be entitled obligated to vote on any matter submitted appoint such Stockholder Designee unless the Peed Stockholder or such Stockholder Designee has delivered to the Board the information that would be required to be delivered pursuant to Section 3.1(f)(ii) if such Stockholder Designee were up for election. (f) Not less than ninety (90) days prior to the anniversary of the prior year’s annual general meeting of stockholders of the Corporation occurring during the Board Right Period at which one or more Stockholder Designees are to be elected, the Peed Stockholder shall (i) notify the Corporation in writing of the name of the Stockholder Designees to be nominated for election at such meeting and (ii) provide, or cause such Stockholder Designees to provide, to the Corporation, all information concerning the Stockholder Designees and his or her nomination to be elected as Directors at such meeting as shall reasonably be required by the Corporation’s standard director ‑13‑ and officer questionnaire (including any reasonable follow-up requests by the Corporation for additional information). (g) During the Board Right Period, the Corporation agrees that any Stockholder Designee serving as a Director shall be entitled to the same rights, privileges and compensation applicable to all other non‑employee Directors generally or to which all such non‑employee Directors are entitled, including any rights with respect to indemnification arrangements, directors and officers insurance coverage and other similar protections and expense reimbursement rights. (h) The Peed Stockholder acknowledges that the Board may from time to time establish procedures that the Board reasonably determines are appropriate to address any conflicts of interest that a Stockholder Designee may have, including as a result of such person’s service in any capacity at AmRisc, LLC or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: Affiliates. (i) Notwithstanding anything in this Agreement to the Board concludes contrary, the Corporation will not be obligated to take any action in good faith, upon advice respect of any Stockholder Designee pursuant to Section 3.1(d) or Section 3.1(e) until the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital MarketPeed Stockholder provides, or such other exchange on which causes to be provided, in all material respects, the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause notice and information required by Section 3.1(f). (aj) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, Notwithstanding anything to the Companycontrary in this Agreement, each Stockholder Designee (including Peed), during the term of any service as a Director, shall not be prohibited from acting in his or her capacity as a Director and complying with his or her fiduciary duties as a Director.

Board Representation. Effective upon (a) Subject to the IPO Closingconditions set forth herein, the Company shall nominate, and the Company and the Purchaser shall have use their best efforts to cause the right election at the Meeting of, certain persons to designate one individual be designated by each of the Purchaser and the Company (collectively, the “Purchaser Designee”) "Nominees"), as provided herein, to be, at Purchaser’s election, either serve as directors on the Board of Directors of the Company such that: (ai) a non-voting observer majority of the members of such Board shall be comprised of the Purchaser's designated representatives; and (a “ii) three of the members of such Board Observer”) shall be comprised of the Company’s board 's designated representatives consisting of directors Kenneth I. Sawyer ("Sawyer") and two additional representatxxxx xxxxxxxxxx xx the “Board”curxxxx Board of Directors of the Company (collectively, the "Company Designees"). Notwithstanding anything to the contrary contained herein, each representative designated by the Purchaser in accordance with Section 7.3(f) or hereof shall be nominated for election to serve on the Board of Directors unless such representative shall not be satisfactory to the Company's current Board of Directors for good faith reasons and each Company Designee shall be nominated to serve on the Board of Directors unless such Designee (other than Sawyer) shall not be satisfactory to the Purchaser for good faith reaxxxx. All current members of the Company's Board of Directors not nominated as set forth above shall resign effective upon the Closing. Any current members of such Board nominated as set forth above shall resign effective upon the Closing, subject to their renomination and re-election as set forth herein. All Nominees shall take office if, and only if, the Closing shall occur. (b) elected as a member Any director designated hereunder shall serve subject to the terms of the BoardCompany's Certificate of Incorporation and By-laws, each as in effect on the Closing Date, and the provisions of applicable law. (c) The Company Designees and the Purchaser shall jointly designate two of the Company's directors to comprise the audit committee of the Company. Any Board Observer Each of such directors must qualify as independent, outside directors in accordance with the rules and regulations of The New York Stock Exchange. (d) The directors designated by the Purchaser shall serve as Class I and Class III directors of the Company (as allocated by the Purchaser) whose terms shall expire in the years 2000 and 1999, respectively. The Company Designees shall serve as Class II directors of the Company whose terms shall expire in the year 2001. There shall be entitled to attend meetings no Class II directors other than the Company Designees (and their respective successors selected in accordance with Section 8.1 hereof) through May 31, 2001. (e) The Company shall include in the Proxy Statement distributed in respect of the Board, Meeting the Proposals and to receive shall recommend its approval of each Proposal (including approval of all information provided to Nominees) by the members shareholders of the Board during Company. Sawyer and the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled Purchaser (and its Affiliates) agree to vote on any matter submitted sharex xx Xommon Stock which they own or otherwise have the power to the Board or any vote in favor of its committees nor to offer any motions or resolutions to the Board or such committees. In the event each of the Proposals (including approval of all Nominees). (f) The Company shall give the Purchaser Designee’s death, disability or resignation from the Board written notice not less than 10 days prior to the Business Combination Closing, filing with the SEC of the preliminary Proxy Statement in respect of the Meeting to allow the Purchaser shall have the right to designate a replacement Purchaser Designeeits nominees for director for inclusion in such Proxy Statement. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, obligation to include such nominees in the Proxy Statement unless the Company receives written notice from the Purchaser setting forth its designated nominees (along with all biographical and other information necessary for inclusion in the Proxy Statement) not later than five days after the Company's notice to the CompanyPurchaser.

Board Representation. Effective upon At each annual meeting of the IPO Closingstockholders of the Company, or at any meeting of the Purchaser shall have stockholders of the right to designate one individual Company at which members of the Board of Directors of the Company (the “Purchaser DesigneeBoard of Directors”) are to bebe elected, at Purchaser’s electionor whenever members of the Board of Directors are to be elected by written consent, either the Stockholders shall vote or act with respect to their shares so as to elect: (a) a non-voting observer (a “Board Observer”) of the Company’s board Chief Executive Officer, initially Xxxx Xxxxx, as a director elected by the holders of directors Preferred Stock and Common Stock, voting together as a single class on an as-converted basis; provided that if for some reason he or she shall cease to serve as the Company’s Chief Executive Officer, each of the Stockholders shall promptly vote their respective shares (i) to remove the “Board”) or (b) elected former Chief Executive Officer from the Board of Directors if such person has not resigned as a member of the Board. Any Board Observer shall of Directors and (ii) to elect such person’s replacement as the Company’s Chief Executive Officer as a director; (b) one (1) director to be entitled to attend meetings designated by Xxxxxx Investment Company LLC as one of the Boarddirectors elected by the holders of Preferred Stock and Common Stock, and to receive all information provided to the members voting together as a single class on an as-converted basis, provided, however, if Xxxxxx Investment Company LLC no longer holds at least 500,000 shares of the Board during the period in which such person is a Board Observer; providedCompany’s capital stock at any time, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the this right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee director shall terminate; and (c) one (1) director to be designated by RTW Master Fund, LTD and RTW Innovation Master Fund, LTD (together,“RTW”) as the director elected by RTW (the “RTW Director”); provided, however, that RTW’s right to designate the Board pursuant RTW Director under this Section 1.1(c) shall be subject to clause and contingent upon the completion of the Second Tranche Investment (bas defined in the Purchase Agreement), and RTW shall have no right to designate the RTW Director unless and until such time that RTW purchases the Second Tranche Investment Amount (as defined in the Purchase Agreement) above, the Sponsor hereby agrees to vote all of its shares in from the Company in favor the Second Tranche Closing; provided further, however, if RTW no longer holds at least 60% of the election of Preferred Stock purchased by RTW under the Purchaser Designee, and Purchase Agreement at any time after the Purchaser Designee shall be entitled to an indemnification agreement Second Tranche Closing (as defined in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access Purchase Agreement), this right to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between designate a director shall terminate immediately with no further action required by the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyRTW.

Board Representation. Effective upon Purchaser and the IPO ClosingCompany agree as follows: 6.1 Following receipt by the Company of the Purchase Price and continuing until the later of (i) the date that the Convertible Notes have been paid in full or (ii) if 100% of the principal amount of the Convertible Notes have been converted into Common Stock and/or other equity securities of Purchaser, the date Purchaser shall have no longer owns at least eighty percent (80%) of the right to designate one individual shares of Common Stock and/or other securities acquired by Purchaser upon conversion thereof (the “Representation Period”), Purchaser Designee”) to beshall be entitled, at Purchaser’s electionits option, either (a) a non-voting observer (a “Board Observer”) to the board representation rights set forth in in this Section 6. 6.2 Immediately following receipt by the Company of the Purchase Price, the Company’s board Board of directors Directors (the “Board”) or (b) elected as a member of shall take all action necessary to expand the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members size of the Board during the period in which such by one (1) member and appoint one person designated by Purchaser who is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted reasonably acceptable to the Board or any to serve as a director of the Company, who shall serve as a director until the next meeting of stockholders of the Company where directors are to be elected and until his respective successor is duly elected and qualified. 6.3 During the Representation Period, at each meeting of stockholders of the Company where directors are to be elected, the Board shall include in its committees nor slate of nominees to offer any motions or resolutions be submitted to stockholders for election, one person designated by Purchaser who is reasonably acceptable to the Board or such committees. In the event to serve as a director of the Company. Each director designated by Purchaser to serve on the Company’s Board of Directors is referred to herein as the “Purchaser Designee’s death”. 6.4 Notwithstanding Sections 6.1, disability 6.2 or 6.3 to the contrary, if at any time after the date hereof the Convertible Notes have been paid in full or, if the Convertible Notes have been converted into Common Stock or other equity securities of the Company, Purchaser ceases to own at least eighty percent (80%) of the shares of Common Stock and/or other securities acquired by Purchaser upon conversion thereof, Purchaser shall cause the Purchaser Designee then serving on the Board to promptly tender his or her resignation from the Board prior and any committee of the Board on which he or she then sits. In furtherance of this Section 6.4, each Purchaser Designee shall, as a condition to his or her appointment or election to the Business Combination ClosingBoard, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected execute and deliver to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement irrevocable resignation as director in the form attached hereto as Exhibit D. The D. 6.5 Each Purchaser Designee shall at all times while such Purchaser Designee is a director of the Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) comply with the provisions of this Agreement and all policies and guidelines of the Board concludes in good faithand its committees, upon advice and of the Company to the extent applicable to Board members, including the Company’s counselcode of ethical conduct, that such exclusion is reasonably necessary to preserve the attorney-client privilege between corporate governance guidelines and xxxxxxx xxxxxxx policy. Each Purchaser Designee shall, if requested by the Company and such counsel; as a condition to being appointed or (ii) such portion of a meeting is an executive session limited solely nominated for election to independent director members of the Board, independent auditors and/or legal counselacknowledge that his obligations under this Agreement and such policies and guidelines are in addition to the fiduciary, as the Board may designate, statutory and common law duties of a director of a Delaware corporation and the Board Observer (assuming NASDAQ rules. 6.6 Each Purchase Designee shall, at the Board Observer were a member time of election or appointment to the Board) would not , meet the then-qualification requirements to serve as a director under the Delaware General Corporation Law, applicable standards for independence adopted by United States securities laws and the rules of NASDAQ Capital Market, or such any other stock exchange on which the Company’s securities are Common Stock is then tradedlisted. 6.7 During the Representation Period, if a Purchaser Designee resigns from the Board or is rendered unable to serve on the Board by reason of death, disability or disqualification, Purchaser shall be entitled to designate a replacement for such Purchaser Designee reasonably acceptable to the Board, and the Company shall take all necessary action to implement the foregoing as promptly as practicable. In the event the Purchaser designates Any such designated replacement who becomes a Board Observer pursuant member shall be deemed to clause (a) abovebe a Purchaser Designee for all purposes under this Agreement and, Purchaser’s Board Observer shall have no duties, fiduciary prior to his or otherwise, her appointment to the Company.Board, shall be required to execute and deliver to the Company an irrevocable resignation as director in the form attached hereto as Exhibit D.

Board Representation. Effective upon (1) Until the IPO Closingdate on which the Shareholders own, collectively, less than 23,958,000 Shares (the "Shareholder Designee Period"): --------------------------- (1) The Board of Directors of the Company (the "Board of -------- Directors") shall consist of no more than seven directors. --------- (2) The Company shall support the nomination of, and use its best efforts to cause the Board of Directors to include in the slate of nominees recommended to shareholders for election as directors, no fewer than the Requisite Number of persons designated by the Shareholders (the "Shareholder ----------- Designees"). --------- (3) If any vacancy (whether by death, retirement, disqualification, removal from office or other cause) is created by a Shareholder Designee ceasing to serve as a director (other than by reason of the Requisite Number being reduced from 4 to 2), the Purchaser Board of Directors shall have appoint a person designated by the right Shareholders to designate one individual fill such vacancy, and such person shall be a Shareholder Designee for purposes of this Agreement. (the “Purchaser Designee”4) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer The Shareholders shall be entitled to attend meetings have at least one Shareholder Designee serve on each committee of the BoardBoard of Directors other than any committee formed solely for the purpose of considering matters relating to the Shareholders (a "Non-Shareholder Committee"). So long as the Requisite Number is 4, and the Shareholders shall be entitled to receive all information provided to have Shareholder Designee's constitute a majority of the members of each committee of the Board of Directors other than a Non-Shareholder Committee. (2) If requested by any party, the provisions of this Section shall be further effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which provisions shall not be further amended during the period in which such person is a Board Observer; providedShareholder Designee Period. (3) Notwithstanding the provisions of this Section, that the Board Observer Shareholders shall not be entitled to vote on designate any matter submitted person to the Board of Directors (or any committee thereof) if the Company receives a written opinion of its committees nor outside counsel that such person would not be qualified under any applicable law, rule or regulation to offer any motions or resolutions to the Board or such committees. In the event serve as a director of the Purchaser Designee’s death, disability or resignation from Company. The Company shall use its reasonable best efforts to notify the Board prior Shareholders of any objection to a Shareholder Designee sufficiently in advance of the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in date on which proxy materials are mailed by the Company in favor of the connection with such election of directors to enable the Purchaser Designee, and Shareholders to propose a replacement Shareholder Designee in accordance with the Purchaser terms of this Agreement. (4) Each Shareholder Designee serving on the Board of Directors shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access all compensation and stock incentives granted to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice directors who are not employees of the Company’s counsel, that Company on the same terms provided to such exclusion is reasonably necessary to preserve directors. (5) The provisions of this Section 2 shall terminate on the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members last day of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyShareholder Designee Period.

Board Representation. Effective As long as DCEO continues to own at least 400,000 shares of the Purchased Shares acquired at the Closing, DCEO shall have an option to designate one nominee (such individual is hereinafter referred to as a "DuPont Designee(s)"), who must be a DCEO or DuPont employee, to the Board of Directors. If Merrimac increases the number of directors to nine or more members, exclusive of any directorships held by a DuPont Designee, then DCEO shall have the option to designate, in its sole discretion, additional nominees, who must be DCEO or DuPont employees, to the Board of Directors so that, at the earliest possible time after such increase, the number of directorships held by DCEO shall be the number determined in accordance with Schedule 5.4 hereto. If DCEO exercises its option to designate a nominee or nominees, as the case may be, to the Board of Directors, then Merrimac shall use its best efforts, as promptly as possible, to have the DCEO nominee(s) elected to the Board of Directors. At each annual meeting of the stockholders of Merrimac and at each special meeting of the stockholders of Merrimac involving the election of directors of Merrimac, and at any other time at which stockholders of Merrimac will have the right to or will vote for or consent in writing regarding the election of directors of Merrimac, Merrimac agrees that, upon the IPO request of DCEO, it will use its best efforts to cause and maintain the election to the Board of Directors of the DuPont Designee(s). Upon disposition in any manner by DCEO of an amount of the Purchased Shares that results in it owning less than 400,000 shares of the Purchased Shares acquired at the Closing, DCEO shall forfeit its right to designate a nominee(s) to the Purchaser Board of Directors of Merrimac and immediately upon such disposition, the DuPont Designee(s), as the case may be, shall resign as a member(s) of the Board of Directors of Merrimac. Until DCEO exercises its option to designate a nominee to the Board of Directors and for as long as DCEO maintains an equity position of 250,000 shares of Common Stock, or if for any reason DCEO's designee has not been elected to the Board of Directors, DCEO shall have the right to designate one individual (the “Purchaser Designee”) to be, have an observer present at Purchaser’s election, either (a) a non-voting observer (a “all Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend Director meetings and any committee meetings of the Board, Board of Directors and to receive all information provided to the members adequate notice of the Board during the period such meetings and a copy of any materials distributed in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyconnection therewith.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) The Corporation and the Stockholders shall take such corporate actions as may be required to ensure that (i) the number of directors constituting the Board is at all times no greater than eight (8) (subject to increase pursuant to the Board Expansion Option), and (ii) the presence of at least two (2) Investor Directors is required to constitute a non-voting observer (a “Board Observer”) quorum of the Company’s board of Board. The Board shall initially be set at five (5) members. (b) The Board shall be comprised as follows: (i) Subject to clause (vi) below, Eos Capital shall be entitled: (A) to nominate two (2) individuals to the Board to serve as directors (the “BoardEos Capital Directors”) until their respective successors are elected and qualified, (B) to nominate each successor to the Eos Capital Directors and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (bB); the Eos Capital Directors shall initially be Xxxxx Xxxxx and Xxxx X. First; (ii) Subject to clause (vi) below, Eos SBIC III shall be entitled: (A) to nominate one (1) individual to the Board to serve as director (the “Eos SBIC Director”) until his respective successor is elected as and qualified, (B) to nominate each successor to the Eos SBIC Director and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (B); the Eos SBIC Director shall initially be Xxxxx Xxxxxxxx; (iii) Subject to Section 2.1(d), a member Majority in Interest of the Board. Any Management Stockholders, so long as they continue to own, directly or indirectly, at least fifty percent (50%) of the Management Stockholder Shares owned by them in the aggregate on the date hereof, shall be entitled: (A) to nominate two (2) individuals to the Board Observer to serve as directors (each, a “Management Director”, and together the “Management Directors”) until their respective successors are elected and qualified, (B) to nominate each successor to the Management Directors and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (B); provided, however, that if the Management Stockholders continue to own, directly or indirectly, less than fifty percent (50%) but at least twenty-five percent (25%) of the Management Stockholder Shares owned by them in the aggregate on the date hereof, a Majority in Interest of the Management Stockholders shall be entitled to attend meetings nominate only one (1) Management Director to the Board. For purposes of clarification, if the Management Stockholders own, directly or indirectly, less than twenty-five percent (25%) of the Management Stockholder Shares owned by them in the aggregate on the date hereof, they shall no longer be entitled to nominate a Management Director to the Board. The Management Directors shall initially be W. Xxxxxx Xxxxxx, III and Xxxx X. Xxxxxx; (iv) a majority of the Investor Directors and the Management Directors (that includes the vote of at least one (1) Management Director) acting together shall be entitled: (A) to nominate up to three (3) individuals to the Board to serve as directors (the “Independent Directors”) until their respective successors are elected and qualified, (B) to nominate each successor to the Independent Directors and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (B); provided, however, that such nominee and any successor may not be (x) an officer or employee of the Corporation, (y) any Management Stockholder or (z) any Investor, and shall be knowledgeable in the Corporation’s industry; (v) upon the occurrence of the Board Expansion Option in accordance with Section 2.8, a Majority in Interest of the Investors shall be entitled: (A) to nominate up to three (3) individuals to the Board to serve as directors (the “Additional Investor Directors”) until their respective successors are elected and qualified, (B) to nominate each successor to the Additional Investor Directors and (C) to direct the removal from the Board of any Additional Investor Director nominated under the foregoing clauses (A) or (B); and (vi) For so long as the Eos Entities have not received their aggregate Series A Preference Amount, the Eos Entities shall continue to retain the rights set forth in Section 2.1(b)(i), Section 2.1(b)(ii), Section 2.1(b)(v) and Section 2.8. At such time as the Eos Entities have been paid their aggregate Series A Preference Amount in full, the following provisions shall apply: (A) so long as the Investors continue to own, directly or indirectly, at least twenty-five percent (25%) of the Investor Shares owned by them in the aggregate on the date hereof, Section 2.1(b)(i), Section 2.1(b)(ii), Section 2.1(b)(v) and Section 2.8 shall remain in full force and effect; (B) so long as the Investors continue to own, directly or indirectly, at least five percent (5%) but less than twenty-five percent (25%) of the Investor Shares owned by them in the aggregate on the date hereof, (x) Section 2.1(b)(ii) shall remain in full force and effect, (y) Section 2.1(b)(i)(A) shall be amended such that Eos Capital shall only be entitled to nominate (and remove) one (1) individual to the Board to serve as a director and (z) Section 2.1(b)(v) and the Board Expansion Option set forth in Section 2.8 shall terminate and be of no further force and effect; and (C) if the Investors own, directly or indirectly, less than five percent (5%) of the Investor Shares owned by them in the aggregate on the date hereof, the Eos Entities shall no longer be entitled to nominate any individuals to the Board. (c) Each nomination or any proposal to remove from the Board any director shall be made by delivering to the Corporation a notice signed by the party or parties entitled to such nomination or proposal. As promptly as practicable, but in any event within ten (10) days, after delivery of such notice, the Corporation shall take or cause to be taken such corporate actions as may be reasonably required to cause the election or removal proposed in such notice. Such corporate actions may include calling a meeting or soliciting a written consent of the Board, and to receive all information provided or calling a meeting or soliciting a written consent of the Stockholders. (d) Notwithstanding anything to the members contrary contained herein, the Management Stockholders may not appoint an individual other than (i) W. Xxxxxx Xxxxxx, III, (ii) Xxxx X. Xxxxxx or (iii) any individual set forth on Annex III hereto, as a Management Director without the prior written consent of the Board during the period in Eos Capital, which such person is a Board Observer; provided, that the Board Observer consent shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyunreasonably withheld.

Board Representation. Effective upon (a) At the IPO Closing, the Purchaser Company shall appoint two Directors designated by the Investor Shareholders for election by the Board and obtain resignations from two of the Directors that are not Independent Directors serving on the Board such that the Board shall consist initially of seven Directors. During the Term of this Agreement, (i) the Investor Shareholders, acting as a group (by majority vote based on number of shares of Common Stock held), shall have the right to designate one individual nominate for election to the Board two Directors to the Board for so long as the Investor Shareholder Group collectively owns of record a number of shares of Common Stock equal to at least 10% of the then outstanding Common Stock (the “Purchaser DesigneeInvestor Directors”), (ii) the Existing Shareholders, acting as a group (by majority vote based on number of shares of Common Stock held), shall have the right to be, nominate for election to the Board two Directors to the Board for so long as the Existing Shareholder Group collectively owns of record a number of shares of Common Stock equal to at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) least 10% of the Company’s board of directors then outstanding Common Stock (the “BoardExisting Shareholder Directors”) and (iii) the Investor Directors and the Existing Shareholder Directors shall jointly nominate three Independent Directors. In addition, in the event that the Board (including at least one Investor Director and one Existing Shareholder Director) determines to increase the number of directors above seven, such additional directors shall be Independent Directors and shall be jointly nominated by the Investor Directors and the Existing Shareholder Directors. Any nomination for the replacement of (x) a Investor Director prior to the expiration of his or her respective term shall be made by the remaining Investor Director or, if no Investor Directors remain, by the Investor Shareholders, (y) an Existing Shareholder Director prior to the expiration of his or her respective term shall be made by the remaining Existing Shareholder Director or, if no Existing Shareholder Directors remain, by the Existing Shareholders or (bz) elected as a member an Independent Director prior to the expiration of his or her respective term shall be made jointly by the Board. Any Board Observer Investor Directors and the Existing Shareholder Directors; provided, however, that the current independent Directors shall be entitled to attend meetings serve through the earlier to occur of their resignation or the Board, and to receive all information provided to the members expiration of the Board during the period in which such person is a Board Observertheir respective current terms and; provided, further that to the extent that the Board Observer shall not or any member thereof reasonably believes that it would be entitled contrary to vote on his, her or its fiduciary duties to the Company and its shareholders to nominate any matter submitted Investor Director or Existing Shareholder Director to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s deathCommittee thereof, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counselor any member thereof, as the Board may designate, refuse to make such nomination and the Board Observer (assuming the Board Observer were such refusal shall not be deemed a member breach of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companythis Agreement.

Board Representation. Effective upon (i) At and immediately after the IPO Closing, the Purchaser Board shall have ten directors, divided into three classes. One member of the Board shall initially be designated by the Shareholder to be a Class II director with a three year term from the date of the Company’s most recent annual meeting of stockholders (the “Shareholder Nominee”). Unless the Shareholder expressly agrees in writing, the Company shall use its best efforts to ensure that the Shareholder Nominee is not removed without cause. (ii) The Shareholder acknowledges that pursuant to a separate agreement between the Company and FIS, up to four directors shall be designated by FIS and that pursuant to a separate agreement between the Company and Xxxxxxxx X. Xxxxxxxxx, two directors shall be designated by Xxxxxxxx X. Xxxxxxxxx. (iii) If, at any time following the election of the Shareholder Nominee and prior to the third anniversary of the Closing Date, a vacancy exists in the office of the Shareholder Nominee, the Shareholder will be entitled to designate a successor and, in connection with any subsequent meeting of the shareholders of the Company or the Board at which such vacancy is to be filled, the Company will use its best efforts to cause the successor to be so elected. Notwithstanding anything to the contrary contained herein, upon the earlier to occur of the following: (x) the date on which the Shareholder and its affiliates own less than one million shares of Common Stock; and (y) the date that is three years from the anniversary of the Closing Date, the Shareholder’s right to designate the Shareholder Nominee shall cease and, upon notice from the Company to the Shareholder, the Shareholder shall cause the Shareholder Nominee to immediately resign. The Shareholder Nominee, upon election as a director, will receive standard board fees, perquisites, expense reimbursements and option grants, in accordance with the Company’s policy of paying directors, as such policy may be in effect from time to time. (iv) For so long as Shareholder and its affiliates own directly or indirectly at least one million shares of Common Stock, and there is no nominee of the Shareholder or its affiliates then serving as a director of the Company, the Shareholder will have the right to designate one individual (person to attend meetings of the “Purchaser Designee”) to be, at Purchaser’s election, either (a) Board as a non-voting observer (a the “Board Shareholder Observer”). Such Shareholder Observer will have the right to receive notice of and attend and participate in discussions at each regular and special meeting of the Board and will be entitled to receive at the same time they are provided to the Board copies of any information concerning the Company that is provided to the Company’s directors. Such Shareholder Observer will be bound by the same duties and obligations of loyalty and confidentiality with respect to such information as the directors of the Company. (v) From the Closing and continuing until the earliest of (x) the date that is five years after the Closing Date, (y) the date FIS and its affiliates no longer beneficially own (as defined in Rule 13d-3 and 13d-5 under the Exchange Act) more than 10% of the outstanding shares of any class of capital stock of the Company which are entitled to vote generally in the election of directors, and (z) the Shareholder and its affiliates do not own at least one million shares of Common Stock, the Shareholder agrees that it and its affiliates: (a) with respect to any proposal submitted to the Company’s shareholders regarding the election of directors, will vote all Common Stock which they have the right to vote in favor of the nominees designated by the Company’s directors other than the directors designated by FIS and its affiliates, Xxxxxxxx X. Xxxxxxxxx and his affiliates, and the Shareholder and its affiliates (the “Public Directors”); (b) with respect to any proposal to amend the Company’s Articles of Incorporation or Bylaws, will vote all Common Stock which they have the right to vote against any such proposal that has not been approved by a majority of the Public Directors; (c) will not, and will cause its affiliates not to, call, or support (by way of giving a proxy or written consent) any person in seeking to call, any special meeting of the Company’s board of directors shareholders; (the “Board”d) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Boardwill not, and will cause its affiliates not to, seek or vote to receive all information provided remove or support (by way of giving a proxy or written consent) any person in seeking to the members of the Board during the period in which such person is a Board Observer; providedremove, that the Board Observer shall not be entitled to vote on without cause, any matter submitted to the Board member or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board; (e) will not solicit, independent auditors and/or legal counselobtain, as hold or vote the Board may designate, and the Board Observer (assuming the Board Observer were a member written proxies of any other shareholders of the BoardCompany; (f) would will not meet the then-applicable standards for independence adopted enter into any binding agreement, arrangement or understanding with any other person jointly to take or cause such other person to take any action which would, if done by the NASDAQ Capital MarketShareholder or its affiliates, result in a violation of clauses (c), (d) or such other exchange on which (e) of this Section 5(i)(v); and (g) will not publicly announce that it is seeking a waiver of any of the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyprovisions of this Section 5(i)(v).

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer Not later than fifteen (a “Board Observer”15) days after the Closing Date, the Trust shall: (i) take all necessary action, if any, to increase the number of trustees of the Company’s Trust by two, and (ii), subject to the Nevada Gaming Approvals, nominate and support for election to the board of directors (trustees of the “Board”) or Trust Gary X. Xxxxxxx xxx Rogex X. Xxxxx. (b) elected For so long as a member of PRISA II shall maintain the Board. Any Board Observer Minimum Share Ownership, PRISA II shall continue to be entitled to attend meetings designate, subject to the Nevada Gaming Approvals, one representative to be nominated for election to the board of trustees of the BoardTrust, and the Trust shall cause the board of trustees of the Trust to so nominate such designee, and to receive all information provided support such nomination along with the other nominees of management and the board of directors, for election to the members board of trustees of the Board during Trust at any annual or special meeting of the period in which such person is a Board Observer; provided, that shareholders of the Board Observer Trust called for the purpose of electing trustees. Rogex Xxxxx xx the individual so designated by PRISA II as of the date of this Agreement. If the representative designated by PRISA II shall not be entitled to vote on any matter submitted elected to the Board or any board of its committees nor to offer any motions or resolutions to the Board or such committees. In the event trustees of the Purchaser Designee’s Trust, such right of PRISA II shall be suspended until such representative is up for re-election or the seat occupied thereby otherwise becomes vacant. Upon the death, disability disability, retirement, removal (with or without cause) or resignation from the Board prior to the Business Combination Closingof any such trustee designated by PRISA II, the Purchaser PRISA II shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates for such individual to fill such capacity and serve as a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor trustee of the election Trust for the remainder of the Purchaser Designeedeparting trustee's term, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice trustees of the Company’s counsel, that Trust shall appoint such exclusion is reasonably necessary replacement individual to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion board of a meeting is an executive session limited solely to independent director members trustees of the BoardTrust to fill such vacancy. If PRISA II shall at any time fail to maintain the Minimum Share Ownership, independent auditors and/or legal counsel, as then the Board may designate, rights granted to PRISA II by this Section 18.01 shall immediately terminate and the Board Observer (assuming the Board Observer were party designated by PRISA II, if then a member Trustee of the BoardTrust, shall promptly resign such trusteeship. (c) would not meet The election and removal of trustees of the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer Trust shall have no duties, fiduciary or otherwise, at all times remain subject to the Companyterms and conditions of the Trust's Constituent Documents. The provisions of this Section 18.01 shall survive Closing.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of The Corporation and each Stockholder shall take such corporate actions as may be reasonably required to ensure that the Company’s board number of directors (constituting the “Board”) or Board is at all times six. (b) elected as Subject to the terms of this Agreement: (i) The holders of a member majority of all the Board. Any Board Observer Series A Preferred Stock shall be entitled to attend meetings (A) nominate one individual for election to the Board to serve as director until his or her successor is elected and qualified, (B) propose the removal from the Board of any director nominated under the foregoing clause, and (C) nominate each successor to any director removed in accordance herewith; (ii) The holders of a majority of all the Series B Preferred Stock shall be entitled to (A) nominate one individual for election to the Board to serve as director until his or her successor is elected and qualified, (B) propose the removal from the Board of any director nominated under the foregoing clause, and (C) nominate each successor to any director removed in accordance herewith; (iii) the holders of a majority of all Common Stock shall be entitled (A) to nominate two individuals for election to the Board to serve as directors until their successors are elected and qualify; provided, however, that one such nominee shall at all times be the Chief Executive Officer of the Company, (B) to propose the removal from the Board of any director nominated under the foregoing clause, and (C) to nominate each successor to any director removed in accordance herewith; (iv) Two nominees shall be Independent Individuals, who shall be mutually acceptable to both (i) a majority in interest of the holders of the Common Stock, voting separately, and (ii) a majority in interest to the holders of the Investor Shares, voting separately; (v) If at any time there is no Independent Individual currently serving on the Board, and to receive all information provided to the members of the Board during the period in which such person then until as at least one Independent Individual is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause Section 2. 1 (bb)(iv) aboveherein, the Sponsor hereby agrees to vote all holders of its shares in the Company in favor a majority of the election of the Purchaser Designee, and the Purchaser Designee Investor Shares shall be entitled to (A) nominate an indemnification agreement individual, in addition to the form attached hereto right of such holders to nominate directors under Section 2.1(b)(i) and 2.1(b)(ii) herein, for election to the Board to serve as Exhibit D. The Company may exclude a director, (B) to propose the removal from the Board of any Board Observer from access director nominated under the foregoing clause, and (C) to nominate each successor to any material director removed in accordance herewith; (c) Each nomination or any proposal to remove from the Board any director pursuant to paragraph (b) above shall be made by delivering to the Corporation a notice signed by the party or parties entitled to such nomination or proposal. As promptly as practicable after delivery of such notice, the Corporation shall take or cause to be taken such corporate actions as may be reasonably required to cause the election or removal proposed in such notice. Such corporate actions may include calling a meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of soliciting a meeting is an executive session limited solely to independent director members written consent of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were or calling a member meeting or soliciting a written consent of the Board) would not meet stockholders of the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyCorporation.

Board Representation. Effective upon Each Party, severally and not jointly, agrees with the IPO ClosingCompany to take all Necessary Action to cause those individuals to be nominated in accordance with this Article 3, initially: i. one of whom (the “SBE Designee”) has been nominated by the SBE Stockholder, who shall initially be Xxxx Xxxxxxxx, and thereafter designated pursuant to this Section 3.a.i or Section 3.d.ii, as applicable; provided, further, that only for so long as the SBE Stockholder Beneficially Own a number of Voting Shares representing at least five percent (5%) of the total outstanding Voting Shares, the Purchaser shall have Company shall, and the Parties shall, take all Necessary Action to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders of the Company, including at every adjournment or postponement thereof, at which directors are to be elected, the SBE Designee; provided, further, that, notwithstanding anything in this Agreement to the contrary, after the SBE Stockholder is no longer entitled to designate the SBE Designee as a result of a reduction in the percentage of Voting Shares Beneficially Owned by the SBE Stockholder below five percent (5%), the SBE Stockholder cannot subsequently re-gain the right to designate an SBE Designee as a result of the acquisition of Beneficial Ownership of additional Voting Shares by the SBE Stockholder; and ii. one individual of whom (the “Purchaser XXX Designee”) has been nominated by the XXX Stockholder, who shall initially be Xxxx Xxxxxx, and thereafter designated pursuant to bethis Section 3.a.ii or Section 3.d.iii, as applicable; provided that only for so long as the XXX Stockholder Beneficially Own a number of Voting Shares representing at Purchaser’s election, either least five percent (a) a non-voting observer (a “Board Observer”5%) of the Company’s board total outstanding Voting Shares, the Company shall, and the Parties shall, take all Necessary Action to include in the slate of nominees recommended by the Board for election as directors (the “Board”) at each applicable annual or (b) elected as a member special meeting of stockholders of the Board. Any Board Observer shall Company, including at every adjournment or postponement thereof, at which directors are to be entitled to attend meetings of elected, the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board ObserverXXX Designee; provided, that further, that, notwithstanding anything in this Agreement to the Board Observer shall not be contrary, after the XXX Stockholder is no longer entitled to vote on any matter submitted to designate the Board or any XXX Designee as a result of its committees nor to offer any motions or resolutions to a reduction in the Board or such committees. In percentage of Voting Shares Beneficially Owned by the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination ClosingXXX Stockholder below five percent (5%), the Purchaser shall have XXX Stockholder cannot subsequently re-gain the right to designate a replacement Purchaser Designee. In the event the Purchaser designates XXX Designee as a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor result of the election acquisition of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice Beneficial Ownership of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted additional Voting Shares by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyXXX Stockholder.

Board Representation. Effective upon (a) The Company shall take all requisite action such that on the IPO Closingdate hereof, the size of the Board shall be set at nine (9) members and five (5) individuals designated by the WP Purchasers (each director designated by the WP Purchasers under this Agreement, a “WP Purchaser Designee”, and collectively, the “WP Purchaser Designees”) as Board nominees shall be appointed to the Board, and on the date hereof, the Resigning Directors shall resign; provided, however, the WP Purchasers shall be permitted, in their discretion, to defer appointment of one or more of the WP Purchaser Designees to one or more subsequent dates. (b) (i) From and after the date hereof, the Company shall cause five (5) WP Purchaser Designees to be nominated by the Company to serve on the Board and the total number of members of the Board shall be nine (9) or fewer to the extent certain of the WP Purchaser Designees have not been appointed to the Board (as permitted above). Any WP Purchaser Designees shall be appointed to the Board on the date hereof or to the extent designated following the First Closing Date, shall be appointed to the Board promptly following notice from the WP Purchasers and in any event, within one (1) Business Day. From and after the date hereof, the Company shall not change the size of the Board without the prior written consent of the WP Purchasers; provided that, unless waived by the WP Purchasers, in the event the size of the Board is changed, the WP Purchasers shall have the right to designate one individual that number of WP Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less that set forth in the previous sentence. For so long as such membership does not conflict with any applicable law or regulation or listing requirement of any Approved Market on which the Common Stock is listed for trading (as determined in good faith by the “Board), the WP Purchaser Designees shall be entitled to serve as a member of, or observer to, at the WP Purchaser Designee”) to be, at Purchaser’s election, either each of the committees of the Board, except for any committee formed to consider a transaction between the Company and a member of the WP Purchaser Group. The Company acknowledges that the WP Purchaser Designees intend to hold positions on the Board committees and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of the WP Purchaser Designees to any such committees (asubject to the limitations in the immediately preceding sentence). The Company shall consult with the WP Purchasers, and the WP Purchasers shall have the right to participate (including in any interviews), in the selection of other directors that will serve on the Board. The WP Purchasers’ rights set forth in this Section 5.16(b) shall terminate on the first date on which the WP Purchasers collectively do not own at least 75% of the shares of Series A Preferred actually issued to, and purchased by, the WP Purchasers hereunder (including Conversion Shares issued on conversion thereof and any other securities of the Company or any successor thereto into which such Shares are converted or exchanged). (c) Solely with respect to those WP Purchaser Designees that the WP Purchasers are entitled to designate pursuant to Sections 5.16(a) and/or 5.16(b) (and solely as long as the WP Purchasers remain entitled to so designate such WP Purchaser Designees): (i) The Company shall use its reasonable best efforts to have such WP Purchaser Designees elected as directors of the Company, including, without limitation, including such WP Purchaser Designees in the Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for such WP Purchaser Designees to the same extent as it does for any of its nominees to the Board, and including the recommendation of the Board in favor of election of the WP Purchaser Designees. In the event a non-voting observer WP Purchaser Designee is not elected at a stockholders meeting at which such designee is up for election, the Company shall cause such WP Purchase Designee to be appointed to the Board. (ii) The WP Purchasers may remove any WP Purchaser Designee at any time, with or without cause. Any vacancy in the position of such a “WP Purchaser Designee shall only be filled with another WP Purchaser Designee. Any vacancy created by any removal of a WP Purchaser Designee or an election of the WP Purchasers to defer appointing one or more WP Purchaser Designees shall also only be filled with another WP Purchaser Designee. The Company shall not take any action to remove any WP Purchaser Designee without the consent of the WP Purchasers or fill a vacancy reserved for a WP Purchaser Designee. Any replacement WP Purchaser Designees shall be appointed to the Board Observer”promptly following notice from the WP Purchasers and in any event, within two (2) Business Days. (iii) Each WP Purchaser Designee shall be given notice of (in the same manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Company’s board Board, including all committee meetings with respect to committees on which such WP Purchaser Designee serves. Each WP Purchaser Designee shall receive a copy of all notices, agendas and other materials distributed to the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such WP Purchaser Designee will be in attendance at the meeting. (d) In addition to any other indemnification rights the “WP Purchaser Designees have pursuant to this Agreement, the Certificate of Incorporation and the Bylaws, each such WP Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an Indemnification Agreement and a side letter contemplated by Section 6.1(n). The Company shall maintain director and officer insurance covering the WP Purchaser Designees on the same terms and with the same amount of coverage as is provided to other members of the Board”. The Company shall reimburse the reasonable expenses incurred by the WP Purchaser Designees in connection with attending (whether in person or telephonically) all meetings of the Board or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (bor, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The WP Purchaser Designees shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, restricted stock and other equity awards, as is provided to other non-employee directors. (e) elected The Company and the Purchasers shall take or cause to be taken all lawful action necessary to ensure at all times as of and following the Closing Date that the Organizational Documents of the Company are not inconsistent with the provisions of this Agreement and the Transaction Documents or the transactions contemplated hereby or thereby. (f) Solely during the period from the date hereof until the date that is 185 days after the date hereof, the WP Purchasers shall not take any action to remove Xxxxxx Xxxxx as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. (a) At the Effective upon the IPO ClosingTime, the Purchaser Stockholders shall have the right to designate one individual two (2) directors to serve on the “Purchaser Designee”) Board until the next annual meeting of stockholders to beelect directors; provided, at Purchaserthat each such director nominee must be approved by the Company’s election, either (a) Nominating and Corporate Governance Committee and by a non-voting observer (a “Board Observer”) majority of the Company’s board of directors (the “Board”) or Directors as set forth in Section 2.1(b). (b) elected as a member In connection with the Company’s annual meeting of the Board. Any Board Observer shall stockholders to be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board held during the period in which such person is a Board Observer; providedcalendar years ending December 31, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death2008, disability or resignation from the Board prior to the Business Combination Closing2009 and 2010, the Purchaser Stockholders shall have the right to designate nominate two (2) members to the Board who will be submitted by the Company for election at the annual meeting of stockholders of the Company (each, a replacement Purchaser Designee“ Designee ,” and collectively, the “ Designees ”). In If at any time the event Stockholders collectively own less than 15% of the Purchaser designates aggregate outstanding Company Common Stock (assuming conversion of the Company Preferred Stock), then the Stockholders shall have no further contractual right to nominate any Designees. Before being submitted by the Company to its stockholders for approval at an annual meeting, each Designee shall be subject to the reasonable prior approval of a Purchaser majority of both the Directors (other than any Director nominated or designated by the Stockholders) and the Company’s Nominating and Corporate Governance Committee (excluding any member thereof nominated or designated by the Stockholders). Each Designee to be elected to the Board pursuant to clause this Section 2.1(b) shall hereinafter be referred to as a “Stockholder Director” and collectively all Stockholder Directors shall hereinafter be referred to as the “Stockholder Directors”. (bc) aboveEach Stockholder Director and each Designee must meet the requirements of being an Independent Director. Further, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement conduct reasonable diligence of any proposed Designee or Stockholder Director as necessary to assist in its evaluation of such Designee or Stockholder Director and to determine compliance with applicable rules and regulation of the form attached hereto Commission and Nasdaq. (d) The Designees shall be selected by the Stockholders pursuant to a process established by the Stockholders. Regardless of such process, the Company shall be permitted to rely solely upon the direction of the Stockholder’s Representative with respect to the identity of the Designees. (e) During such time as Exhibit D. The Company may exclude any Board Observer from access the Stockholders have the right to any material or meeting or portion thereof if: appoint Designees, there shall not be more than six (i6) members on the Board concludes in good faithof Directors; provided, upon advice that the size of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or Board of Directors may be increased beyond six (ii6) such portion of members if approved by a meeting is an executive session limited solely to independent director members majority vote of the BoardBoard of Directors, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companymajority must include at least one Stockholder Director.

Board Representation. Effective (a) Until the earlier of (i) the third anniversary of the Initial Closing or (ii) such time as the Purchaser and its Affiliates do not hold, directly or indirectly, at least a majority of the Shares purchased at the Closings (or the Common Stock received upon the IPO Closingconversion of such Shares) (as adjusted for stock splits, stock dividends, stock combinations and the like) (the “Requisite Shares”), the Purchaser shall have be entitled to, at each annual or special meeting of the right to designate Company’s shareholders during such period, nominate one individual (1) director (such Person, the “Purchaser Designee”) to beserve on the Board of Directors; provided, however, that such nomination is subject to such Purchaser Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable Law or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to all directors of the Company and in effect from time to time. In the event that a Purchaser Designee is nominated, the Company shall (i) include such Purchaser Designee in its slate of nominees for election to the Board of Directors at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) each annual or special meeting of the Company’s board of directors shareholders, (the “Board”ii) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, recommend that the Board Observer shall not be entitled to Company’s shareholders vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser DesigneeDesignee and (iii) support the Purchaser Designee in a manner generally no less rigorous and favorable than the manner in which the Company supports its other nominees. The Company shall take all reasonably necessary actions to ensure that, at all times when a Purchaser Designee is eligible to be appointed or nominated, there are sufficient vacancies on the Board of Directors to permit such designation. Notwithstanding the foregoing, the rights of the Purchaser under this Section 5.5(a) to nominate one (1) director shall terminate immediately on the earlier of (A) the third anniversary of the Initial Closing or (B) such time as the Purchaser and its Affiliates ceases to own, directly or indirectly, at least a majority of the Requisite Shares. (b) If any Purchaser Designee ceases to serve on the Board of Directors for any reason during his or her term, the vacancy created thereby shall be filled, and the Company shall cause the Board of Directors to fill such vacancy, with a new Purchaser Designee eligible to serve on the Board of Directors in accordance with Section 5.5(a); provided, however, notwithstanding anything to the contrary in this Agreement, in the event that the Purchaser’s rights under Section 5.5(a) are terminated, any Purchaser Designee serving on the Board of Directors shall immediately tender his or her resignation; provided further that (i) such requirement may be waived in advance by the Company’s Compensation, Nominating & Governance Committee and (ii) such resignation shall be subject to the acceptance by the Board of Directors. (c) For the avoidance of doubt, a Purchaser Designee shall be entitled (i) to the same retainer, equity compensation and other fees or compensation, including travel and expense reimbursement, paid to the non-executive directors of the Company for his or her service as a director and (ii) to the same indemnification rights as other non-executive directors of the Company, and the Company shall maintain, in full force and effect, directors’ and officers’ liability insurance in reasonable amounts to the same extent it now indemnifies and provides insurance for the non-executive directors on the Board of Directors. A Purchaser Designee shall be bound by the same confidentiality restrictions as the other non-executive directors. Any director minimum ownership requirements shall be deemed satisfied in respect of the Purchaser Designee by the Shares, PIK Shares and Conversion Shares, as applicable, held by the Purchaser or one or more of its Affiliates. The Company acknowledges and agrees that it is the indemnitor of first resort (for the Purchase Designee in connection with matters arising from Purchaser Designee’s service as a director of the Company). For the avoidance of doubt, the Purchaser Designee shall be entitled to an indemnification agreement customary access and information rights in the same manner as received by the other directors on the Board of Directors. (d) Following the third anniversary of the Initial Closing, for so long as the Purchaser holds, directly or indirectly, at least a majority of the Requisite Shares, whenever dividends on any Series C Preferred Stock of the Purchaser shall be in arrears for six (6) or more consecutive or non-consecutive Dividend Periods (a “Preferred Dividend Default”), the Purchaser shall be entitled to nominate one (1) additional director of the Company (the “Preferred Director”) for election at the next annual meeting of stockholders and at each subsequent meeting, until all dividends accumulated on such Series C Preferred Stock for the past Dividend Periods and the then current Dividend Period shall have been fully paid or declared in the form attached hereto of PIK Shares or Additional Liquidation Preference. In such case, should a Preferred Director be subsequently elected, the entire Board shall be increased by one (1) director. Notwithstanding the foregoing, if, prior to the election of any additional director in the manner set forth herein, all accumulated dividends are paid or issued on the Series C Preferred Stock, no such additional director shall be so elected. If and when all accumulated dividends shall have been paid or issued on such Series C Preferred Stock, the right of the Purchaser to nominate the Preferred Director shall immediately cease (subject to revesting in the event of each and every Preferred Dividend Default), and the term of office of any Preferred Director so elected shall immediately terminate and the entire Board shall be reduced accordingly. So long as Exhibit D. The Company may exclude a Preferred Dividend Default shall continue, the Purchaser shall be entitled to nominate a director to fill any Board Observer from access vacancy in the office of a Preferred Director. For purposes of the foregoing paragraph, dividends shall be considered to any material or meeting or portion thereof if: be in arrears with respect to a Dividend Period if (i) the Board concludes in good faith, upon advice of the Company’s counsel, that Company has not issued PIK Shares for such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company Dividend Period and such counsel; or (ii) the Liquidation Preference of such portion Shares has not been increased by the Additional Liquidation Preference, in each case, in accordance with and within the times set forth in the Series C Certificate of a meeting is an executive session limited solely to independent director members Amendment. (e) For the avoidance of doubt, the rights of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would Purchaser provided for in this Section 5.5 shall not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such be transferrable to any other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Person other than Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyAffiliates.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer As long as Benchmark Capital Partners, L.P. or any affiliate thereof (a “Board Observer”"Benchmark") owns not less than fifty percent (50%) of the Company’s board shares of directors Series A and Series B Preferred Stock it holds immediately after the Closing (as defined in the “Board”Series BB Agreement) (or (b) elected as a member an equivalent amount of the Board. Any Board Observer Common Stock issued upon conversion thereof), it shall be entitled to attend meetings designate one (1) of the Boardtwo (2) representatives which the holders of the Series A and Series B Preferred Stock, voting separately as a single class and not as separate series, are entitled to receive all information provided elect to the members Company's Board of Directors ("Board") pursuant to the Company's Amended and Restated Certificate of Incorporation ("Restated Certificate"). As long as Crosspoint Venture Partners 1996 or any affiliate thereof owns not less than fifty percent (50%) of the Board during shares of Series A and Series B Preferred Stock they hold immediately after the period in which such person is a Board Observer; providedClosing (or an equivalent amount of Common Stock issued upon conversion thereof), that the Board Observer they shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event designate one (1) of the Purchaser Designee’s deathtwo (2) such representatives which the holders of the Series A and Series B Preferred Stock, disability or resignation from the Board prior voting separately as a single class and not as separate series, are entitled to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected elect to the Board pursuant to clause the Restated Certificate. Each Investor (including any successor and assign of the rights and obligations of such Investor under this Agreement) shall vote a sufficient number of shares of Series A and Series B Preferred Stock (or shares of Common Stock issued upon conversion thereof), to elect to the Board the representatives designated pursuant to this Section 2.6. (b) above, Each Founder agrees that he shall not vote to elect to the Sponsor hereby agrees to vote all of its shares in the Company in favor Board any of the election three (3) representatives that holders of Common Stock, voting separately as a class, are entitled to elect to the Board pursuant to the Restated Certificate without obtaining the prior approval of the Purchaser Designeeholders of a majority of the Series A and Series B Preferred Stock and Common Stock issued upon conversion thereof (calculated on an as converted basis), and which approval shall not be unreasonably withheld. The foregoing shall not apply to the Purchaser Designee shall be entitled election to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an 's chief executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyofficer.

Board Representation. Effective upon (a) From and after the IPO ClosingClosing Date, the Purchaser FS Investors shall have the right to designate one individual the following individuals (the “Purchaser DesigneeFS Designees”) for nomination for election at each annual or special meeting of the shareholders of the Surviving Company in which directors are to bebe elected by the shareholders of the Surviving Company and the Surviving Company Board shall ensure the FS Designees are so nominated (provided, at Purchaserthat each FS Designee shall meet the qualifications for being a director set forth in the Surviving Company’s election, either (a) a nonby-voting observer (a “Board Observer”) laws and applicable corporate statutes and under the rules and regulations of the securities exchange upon which the Company’s board shares shall be traded and shall otherwise be reasonably satisfactory to the Surviving Company’s Board, acting in good faith): (i) two (2) FS Designees, so long as FS Investors, the Sponsor and their respective affiliates (collectively, the “FS Equityholders”) in the aggregate, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act) (“Beneficially Own”) at least 20% of directors the outstanding Surviving Company Common Shares (including, for purposes of counting the shares Beneficially Owned, taking into account all securities of the Surviving Company Beneficially Owned by the FS Equityholders convertible into Surviving Company Common Shares (other than Surviving Company Warrants) and, for purposes of counting the outstanding shares of the Surviving Company, taking into account all such securities and all securities issued in connection with the Financing and convertible into Surviving Company Common Shares); and (ii) thereafter until the date the FS Equityholders, in the aggregate, Beneficially Own less than 10% of the outstanding Surviving Company Shares (including, for purposes of counting the shares Beneficially Owned, taking into account all securities of the Surviving Company Beneficially Owned by the FS Equityholders convertible into Surviving Company Common Shares (other than Surviving Company Warrants) and, for purposes of counting the outstanding shares of the Surviving Company, taking into account all such securities and all securities issued in connection with the Financing and convertible into Surviving Company Common Shares) (the “FS Sunset Date”), one (1) FS Designee; provided that, no reduction in the number of FS Designees that FS Investors is entitled to designate pursuant to this Section 7 shall shorten the term of any FS Designee then-serving on the Surviving Company Board”) , and provided further that, from and after the FS Sunset Date, FS Investors shall have no further rights to nominate any directors hereunder, it being understood that the expiry of such rights hereunder shall in no way preclude or limit the FS Designees from otherwise being elected or nominated to the Surviving Company’s Board. (b) elected So long as a member FS Investors shall continue to have the right pursuant to Section 7(a)(i) hereof to nominate two FS Designees, the size of the Board. Any Surviving Company Board Observer shall not be entitled increased (but it may be decreased, subject to attend this Section 7(b)) during any period between the annual meetings of the Board, and to receive all information provided to the members shareholders of the Board during Surviving Company for any reason without the period in which such person is a Board Observeraffirmative vote of at least one (1) FS Designee; provided, that the size of the Surviving Company Board Observer may be increased in connection with any annual meeting of the shareholders of the Surviving Company in which directors are to be elected by the shareholders of the Surviving Company. Notwithstanding the foregoing or anything to the contrary contained herein, the size of the Surviving Company Board shall not be entitled decreased if such decrease directly or indirectly results in the removal of an FS Designee from the Surviving Company Board or in any way reduces or limits the right of FS Investors to vote on any matter submitted nominate FS Designees to the Surviving Company Board pursuant to Section 7(a) hereof. (c) From the date of this Agreement until the FS Sunset Date, the Surviving Company shall include the requisite number of FS Designees in the slate of nominees recommended by the Surviving Company Board for election as directors at each applicable annual or special meeting of the shareholders of the Surviving Company, including at every adjournment or postponement thereof, at which directors are to be elected. (d) Any FS Designee may resign at any of its committees nor to offer any motions or resolutions time upon written notice to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser Surviving Company Board. (e) FS Investors shall have the exclusive right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected directors for election to the Surviving Company Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor fill any vacancies created by reason of the election death, removal or resignation of the Purchaser an FS Designee, and the Purchaser Designee Surviving Company shall take all necessary action to cause any such vacancies to be entitled to an indemnification agreement in the form attached hereto filled by replacement FS Designees as Exhibit D. promptly as reasonably practicable. (f) The Surviving Company may exclude any Board Observer from access to any material or meeting or portion thereof if: shall (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is take any and all action reasonably necessary to preserve effect the attorney-client privilege between provisions of this Agreement and the Company intention of the parties with respect to the terms of this Agreement and such counsel; or (ii) such portion of not take any action (including removing directors in a meeting is an executive session limited solely manner inconsistent with this Agreement) that would reasonably be expected to independent director members adversely frustrate, obstruct or otherwise affect the rights of the FS Equityholders under this Agreement (including with respect to the composition of the Surviving Company Board), without the prior written consent of the FS Equityholders. The Surviving Company shall recommend that shareholders vote in favor of each FS Designee who shall have met the criteria for directors specified in Section 7(a) above and in the same manner as the Surviving Company shall recommend other directors nominated by the Surviving Company. (g) The Surviving Company shall (i) purchase and maintain in effect at all times directors’ liability insurance in an amount and pursuant to terms determined by the Surviving Company Board to be reasonable and customary, (ii) for so long as any FS Designee nominated pursuant to this Agreement serves as a director on the Surviving Company Board, independent auditors and/or legal counsel, as the Board may designatemaintain such coverage with respect to such FS Designee, and (iii) cause the Board Observer (assuming the Board Observer were a member organizational documents of the BoardSurviving Company to at all times provide for the indemnification, exculpation and advancement of expenses of all directors of the Surviving Company to the fullest extent permitted under applicable law. (h) would not meet the thenThe Surviving Company shall pay all reasonable out-applicable standards for independence adopted of-pocket expenses incurred by the NASDAQ Capital Market, FS Designees in connection with the performance of his or such other exchange on which her duties as a director and in connection with his or her attendance at any meeting of the Company’s securities are then tradedSurviving Company Board. In the event the Purchaser designates a Board Observer pursuant The Surviving Company shall enter into customary indemnification agreements with each FS Designee from time to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companytime.

Board Representation. (a) Effective upon as of the IPO First Closing, the Purchaser Board shall be comprised of 7 members of whom four shall be the Directors immediately prior to the First Closing, two shall be designees of the Investor Stockholders and one shall be an Independent Director. The designees of the Investor Stockholders shall have been designated by the right Investor Stockholders prior to designate one individual the First Closing and each such Person shall continue to be an Investor Director until at least the earlier of (i) the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) first anniversary of the Company’s board First Closing and (ii) the date such Person ceases to be an Affiliate of directors any Investor Stockholder (whether as a result of death, termination of employment or otherwise). Within three months of the “Board”) or First Closing, the Dedman Stockholders shall desxxxxxx an Independent Director who shall fill the vacancy existing at the First Closing. (b) elected as a member After the First Closing, the Board shall be comprised of 7 members (or the Board. Any Board Observer may be reduced to 6 members, if the Investor Stockholders (and their assigns) shall be entitled to attend meetings designate less than two Directors), of whom (i) one shall be an Independent Director, selected as described below, and (ii) (A) two shall be designees of the Board, and to receive all information Investor Stockholders so long as the Investor Stockholders (together with their Permitted Transferees) beneficially own at least 50% of their Initial Interest or (B) one shall be a designee of the Investor Stockholders so long as the Investor Stockholders (together with their Permitted Transferees) beneficially own less than 50% of their Initial Interest but at least 25% of their Initial Interest; provided to that the members size of the Board during may be increased at any time to up to 9 members (and thereafter reduced to not less than 7 members (or 6 members, if the period in which such person is a Board ObserverInvestor Stockholders (and their assigns) shall be entitled to designate less than two Directors)); provided, provided that if the Board Observer consists of more than 7 members, at least one of the additional member(s) must be an Independent Director who shall be designated by the Dedman Stockholders. If the Xxxxxtor Stockholders (together with their Permitted Transferees) beneficially own less than 25% of their Initial Interest, then the Investor Stockholders shall not be entitled to designate any Directors. Each Independent Director shall be selected by the Dedman Stockholders. Each of xxx Xxdman Stockholders, the Invxxxxx Stockholders and the Company shall take such action as may be required under applicable law to include in the slate of nominees recommended by the Board the designees of the Investor Stockholders and each Independent Director designated by the Dedman Stockholders. Each of xxx Xxvestor Stockholders agrees that so long as the Dedman Stockholder Group has txx xxght to vote an aggregate of 50% or more of the outstanding Voting Securities, the Investor Stockholders shall take such action as may be required under applicable law to include in the slate of nominees recommended by the Board the Persons designated by the Dedman Stockholder Group to xxxx xhe positions on the Board not required to be filled by an Independent Director or a designee of the Investor Stockholders (such Persons, the "Dedman Designees"). (x) Each of the Dedman Stockholders and the Ixxxxxxr Stockholders agrees to vote (and use its best efforts to cause each of its Permitted Transferees to vote, if applicable), or act by written consent with respect to, any matter submitted Voting Securities beneficially owned by it, at each annual or special meeting of stockholders of the Company at which Directors are to be elected or to take all actions by written consent in lieu of any such meeting as are necessary, to cause the designees of the Investor Stockholders, the Dedman Designees and each Indexxxxxxt Director designated by the Dedman Stockholders to be elexxxx xo the Board and to otherwise effect the intent of the provisions of Section 5.1(a) and (b). The Company agrees to use its best efforts to cause the election of each such designee to the Board, including nominating such individuals to be elected as members of the Board as provided herein. (d) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Investor Director or Independent Director, the remaining Directors and the Company shall cause the vacancy created thereby to be filled by a new designee as soon as possible, who is designated in the manner and by the persons specified in Section 5.1(b), and the Company, each Investor Stockholder and each Dedman Stockholder hereby agrexx xx take, at any time and from time to time, all actions necessary to accomplish the same. Upon the written request of the Investor Stockholders, each Dedman Stockholder shall votx (xxx use its best efforts to cause each of its Permitted Transferees to vote, if applicable), or act by written consent with respect to, all Voting Securities beneficially owned by it and otherwise take or cause to be taken all actions necessary to remove any Investor Director and to elect any replacement Director designated as provided in the first sentence of this Section 5.1(d). Unless an Investor Stockholder shall otherwise request in writing, no Dedman Stockholder or any of its committees nor ixx Xxrmitted Transferees shall take any action to offer cause the removal of any motions or resolutions to Investor Directors. At the Board or such committees. In the event written request of the Purchaser Dedman Stockholders, each Invexxxx Stockholder shall take the actions described in the second preceding sentence with respect to any Independent Director designated by the Dedman Stockholders or to axx Xxdman Designee’s death, disability or resignation from . (x) Xxthout the Board prior to written consent of the Business Combination ClosingInvestor Stockholders, the Purchaser shall have Company agrees not to take any action that would cause the right to designate a replacement Purchaser Designee. In number of Directors constituting the event the Purchaser designates a Purchaser Designee entire Board to be elected to less than 7 (unless the Board pursuant to clause Investor Stockholders (band their assigns) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement designate less than two Directors, in which case, less than 6) or greater than 9 and each Dedman Stockholder and Investox Xxxxkholder agrees to use its best efforts to cause the form attached hereto as Exhibit D. The Company number of Directors constituting the entire Board to be no less than 7 (or 6, under the circumstances described above) or greater than 9. (f) Except to the extent specifically provided for pursuant to Section 2.4, the rights of the Investor Stockholders and its Permitted Transferees granted under this Section 5.1 may exclude be exercised only by the Investor Stockholders or any Board Observer from access Permitted Transferee that is controlled by any of the Investor Stockholders, notwithstanding any Transfer to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice Permitted Transferee of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyInvestor Stockholders.

Board Representation. Effective upon (a) At the IPO Closing, unless the Purchaser Purchase Price is, at the election of the Buyer, paid all in cash, as provided in Section 1.04(b)(2)(iii), Seller shall have the right to designate one individual (Board representation proportionate to the “Purchaser Designee”) ownership percentage represented by its holdings relative to bethe total outstanding shares of 2d Stock, at Purchaser’s election, either (a) calculated on a non-voting observer diluted basis (a “Board Observer”as hereinabove defined) and rounded downward to the nearest whole number but not less than one ("Proportionate Representation"); provided, however, such representation shall be by Mark Xxxx ("Xyne") or Kevix Xxxxxxxxxx ("Xermeister") or any other person designated by the Seller and approved by 2d each in its complete discretion. Thereafter, so long as the Seller continues to hold not less than one-half of the Company’s board 2d Stock issued to the Seller pursuant hereto, the Seller will be entitled to at least one seat on the Board of directors (Directors of 2d, and at the “Board”) request of the Seller, 2d shall hold meetings of its Board of Directors not less frequently than four times a year, at which management of 2d shall discuss 2d's performance, prospects and strategies. Until the Disposition Date, 2d shall also cause Dyne, Bermeister or (b) elected a designee of the Seller approved by 2d to be nominated as a member of the BoardBoard of Directors of 2d as one of the nominees nominated by 2d's Board of Directors, and shall use its reasonable best efforts to cause Dyne, Bermeister or a designee of the Seller approved by 2d to be elected as such. Any So long as the Seller is entitled to Board Observer representation, Seller shall also be entitled to attend meetings proportionate representation, as determined by the first sentence of the Boardthis Section 4.07(a), and to receive all information provided to the members on each committee of the Board during of Directors and on the period in which such person is Board of Directors and each committee of each subsidiary of 2d. At least one of Dyne, Bermeister or the designee of the Seller approved by 2d shall initially hold a Board Observer; provided, that seat with the Board Observer shall not be entitled to vote on any matter submitted longest remaining term prior to the next election of Directors, if the 2d Board or any of its committees nor to offer any motions or resolutions to Directors is divided into classes of Directors having multiple-year terms expiring in successive years. Notwithstanding the Board or such committees. In foregoing, in the event of the Purchaser Designee’s death, disability or resignation from the Board prior a transfer of shares of 2d Stock issued to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board Seller pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor hereto and of the election rights of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.Seller granted hereunder

Board Representation. Effective upon (a) Within 15 days following the IPO Closingclosing of the Credit Agreement, the Purchaser Board shall have the right to designate appoint one individual designated by Delaware Life to serve on the Board (the “Purchaser Holder Designee”); provided, that such Holder Designee shall satisfy the applicable requirements set forth in Section 2.01(b); provided, further, that upon the occurrence of the Board Right Termination Event, Delaware Life shall promptly cause the Holder Designee, if then serving on the Board, to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which such Holder Designee is then appointed or on which he or she is then serving, and the right of Delaware Life to designate such Holder Designee shall terminate. (b) Notwithstanding anything to bethe contrary set forth in this Agreement, at Purchasera Holder Designee designated by Delaware Life pursuant to Section 2.01 (i) shall not be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or securities exchange on which the Company’s electionEquity Interests are listed or pursuant to applicable Law, either (aii) a non-voting observer shall, prior to his or her appointment or election to the Board, provide an executed resignation letter, in substantially the form attached hereto as Exhibit A, resigning from the Board and from any committees or subcommittees thereof to which he or she is then appointed or on which he or she is then serving upon the occurrence of the Board Right Termination Event and (a “Board Observer”iii) shall, in the good faith reasonable judgement of the Nominating, Corporate Governance and Conflicts Committee of the Board, satisfy the requirements set forth in the Company’s Organizational Documents and the Corporate Governance Guidelines and Code of Business Conduct and Ethics included in the corporate governance section of the Company’s board of directors website, in each case, as in effect from time to time. The initial designee to serve as the Holder Designee shall be Xxxxxxx Xxxxxxxxxxx, who has been approved pursuant to Section 2.01(b)(iii). (c) During the “Board”) or (b) elected as a member Board Right Period, the Company shall use commercially reasonable efforts to procure, at each annual general meeting of the Board. Any stockholders of the Company occurring during the Board Observer shall be entitled Right Period at which the term of the Holder Designee will expire in accordance with the Company’s Organization Documents, the election or re-election, as the case may be, of the applicable Holder Designee to attend meetings of the Board, including by (i) nominating such Holder Designee for election to serve as a Director as provided in this Agreement, (ii) subject to compliance by Delaware Life with Section 2.01(f), including such nomination and to receive all other required information provided to regarding such Holder Designee in the Company’s proxy materials for such meeting of stockholders and (iii) soliciting or causing the solicitation of proxies in favor of the election of such Holder Designee as a Director, for a term expiring at the next annual general meeting of stockholders at which members of the Board during class of Directors to which the period in which Holder Designee belongs are to be elected or re-elected, as the case may be, or until such person is Holder Designee’s successors shall have been elected and qualified, or at such earlier time, if any, as such Holder Designee may resign, retire, die or pursuant to this Agreement be removed as a Director, including upon the occurrence of a Board Observer; providedRight Termination Event in accordance with the terms of this Agreement. (d) Notwithstanding anything to the contrary contained herein, that the Board Observer Company shall not be entitled obligated to procure the election or re-election of any individual pursuant to Section 2.01(c) if such individual shall have previously been designated by Delaware Life pursuant to Section 2.01(a) or Section 2.01(c) and nominated by the Company for election or re-election, as the case may be, as a Director as provided in Section 2.01(c), and, following the vote on any matter submitted to of stockholders at the Board or any annual general meeting of its committees nor to offer any motions or resolutions to the Board or such committees. In the event stockholders of the Purchaser DesigneeCompany, shall have failed to be elected or re-elected, as the case may be, as a Director by the requisite vote of the Company’s deathstockholders. For the avoidance of doubt, disability or resignation from the Board prior to the Business Combination Closingin such event, the Purchaser Delaware Life shall have the right to designate a different Holder Designee and the provisions of Section 2.01(c) and 2.01(d) shall apply to such replacement Purchaser Holder Designee. In . (e) During the event Board Right Period, (i) Delaware Life shall have the Purchaser designates right (but not the obligation), upon written notice to the Company, to designate a Purchaser Holder Designee to replace a Holder Designee who shall have resigned, retired, died or been removed from office (for any reason), (ii) the provisions of Section 2.01(c) and Section 2.01(d) shall apply to any such replacement Holder Designee and (iii) promptly following the receipt of written notice from Delaware Life as contemplated above following the resignation, retirement, death or removal from office of such Holder Designee, the Board shall appoint such replacement Holder Designee to serve on the Board in place of such former Holder Designee who has resigned, retired, died or been removed from office, in the class of Directors previously including such former Holder Designee. (f) Not less than ninety (90) nor more than one hundred twenty (120) days prior to the anniversary of the prior year’s annual meeting of stockholders of the Company occurring during the Board Right Period at which members of the class of Directors to which the Holder Designee belongs are to be elected, Delaware Life shall (i) notify the Company in writing of the name of the Holder Designee to be elected nominated for election at such meeting and (ii) provide, or cause such Holder Designee to provide, to the Board Company, all information concerning such Holder Designee and his or her nomination to be elected as a Director at such meeting. (g) Notwithstanding anything in this Section 2.01 to the contrary, the Company will not be obligated to take any action in respect of any Holder Designee pursuant to clause Section 2.01(c) if Delaware Life shall have failed, in any material respect, to provide, or cause to be provided, any notice or information required by Section 2.01(f); provided, that the foregoing shall not in any way infringe upon or otherwise limit any remedy the Company may have with respect to such breach. (bh) aboveIf the presence of the Holder Designee on the Board shall, the Sponsor hereby agrees to vote all of its shares in the Company in favor reasonable judgment of the election of the Purchaser DesigneeBoard, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faithviolate, or, upon advice of outside counsel, be reasonably likely to violate, applicable Law or otherwise impair, or be reasonably likely to impair, the Board’s exercise of its fiduciary duties, Delaware Life shall cause the then-serving Holder Designee to resign (subject to Delaware Life’s right to designate a replacement Holder Designee in accordance with Section 2.01(e)) or, if reasonably sufficient, recuse himself or herself. (i) Directors of the Company are subject to removal pursuant to the applicable provisions of the organization documents of the Company’s counsel; provided, that however, for as long as this Agreement remains in effect, subject to applicable law, the Holder Designee may only be removed with the consent of Delaware Life, unless such exclusion removal is reasonably necessary to preserve for cause. (j) At all times, the attorney-client privilege between the Company and such counsel; or Holder Designee (iii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, while serving as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted , shall be entitled to coverage under any “directors’ and officers’” liability insurance maintained by the NASDAQ Capital Market, Company (or such other exchange any person on which behalf of the Company’s securities ) and (ii) shall be entitled to all other rights to indemnification, advancement of expenses and exculpation, in each case, as are then tradedmade available to directors generally. In For the event the Purchaser designates avoidance of doubt, no adverse amendment to such rights will be effective as to a Board Observer pursuant to clause (a) above, PurchaserHolder Designee without such Holder Designee’s Board Observer shall have no duties, fiduciary or otherwise, to the Companywritten consent.

Board Representation. Effective upon Each Stockholder agrees that so long as this Agreement remains in effect, such Stockholder shall vote all shares owned or controlled by such Stockholder, directly or indirectly, to elect and maintain in office: (i) a Board of Directors of the IPO Closing, the Purchaser shall have the right to designate Company consisting of eleven (11) members; (ii) one individual (1) director (the “Purchaser TCV Designee”) elected by the holders of the Series E Preferred, who shall be designated from time to be, at Purchaser’s election, either time in writing by TCV or its assigns; (aiii) a non-voting observer one (a 1) director (the “Board ObserverNEA Designee”) elected by the holders of the Company’s board of Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, who shall be designated from time to time in writing by NEA or its assigns; (iv) two (2) directors (the “BoardCommon Designees”) or elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, both of whom shall be designated by the Common Stockholders; provided, however, one of whom shall be the Company’s Chief Executive Officer as designated by the Board from time to time; (bv) two (2) directors (the “Series H Designees”) elected by the holders of the Series H Preferred, who shall be designated from time to time in writing by the holders of a majority of the outstanding shares of the Series H Preferred; (vi) three (3) independent directors (the “Designated Independent Nominees”) elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a member single class and calculated on an as-converted to Common Stock basis, one of whom shall be designated from time to time in writing by TCV, and the holders of the Board. Any Board Observer Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all shares owned or controlled by such Stockholders in favor of such nominee (the “TCV Independent Nominee”), one of whom shall be entitled designated from time to attend meetings time in writing by NEA, and the holders of the BoardCommon Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all shares owned or controlled by such Stockholders in favor of such nominee (the “NEA Independent Nominee”) and one of whom shall be designated from time to time in writing by the Common Designees, and to receive all information provided to the members holders of the Board during Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all shares owned or controlled by such Stockholders in favor of such nominee (the period in which such person is a Board Observer“Common Independent Nominee”); provided, that the Board Observer each Designated Independent Nominee shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or “independent” as such committees. In the event term is construed in Section 10A(m)(3)(B) of the Purchaser Designee’s deathSecurities Exchange Act of 1934, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designeeas amended, and the Purchaser Designee rules and regulations promulgated thereunder, unless a majority of the Board votes to waive this provision with respect to any particular Designated Independent Nominee; and (vii) two (2) independent directors (each, a “Board Independent Nominee”) elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, each of whom shall be entitled designated from time to an indemnification agreement time in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice writing by a majority of the Company’s counselother eight directors; provided, that each Board Independent Nominee shall be “independent” as such exclusion term is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (iiconstrued in Section 10A(m)(3)(B) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counselSecurities Exchange Act of 1934, as the Board may designateamended, and the Board Observer rules and regulations promulgated thereunder, unless at least five (assuming the Board Observer were a member 5) of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a directors vote to waive this provision with respect to any particular Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyIndependent Nominee.

Board Representation. (a) Effective as of the Completion Date, and thereafter until the Standstill Expiration Date (except as otherwise permitted by Section 2.03(c)), the size of the Board shall be set at eight (8) Directors, provided that, so long as there has been no increase or decrease in the size of the Board pursuant to Section 2.03(c), upon the IPO Closingdeath, resignation, retirement, disqualification, removal from office or earlier termination of the term of office of one Other Director, the Purchaser size of the Board shall be automatically reduced to seven (7) Directors. Upon the Completion Date, and thereafter until the Standstill Expiration Date in connection with any annual or special meeting of shareholders of the Company at which Directors are to be elected, the Investors acting unanimously, shall have the right to (i) designate two (2) nominees for appointment or election to the Board, who shall be Non-U.S. Persons to the extent determined necessary by the Board in order to preserve the Company's status as a Foreign Private Issuer (the "Director Nomination Right"), and (ii) recommend to the Nominating Committee one (1) nominee for appointment or election to the Board, who shall be a Non-U.S. Person to the extent determined necessary by the Board in order to preserve the Company's status as a Foreign Private Issuer, which nominee must qualify as an Independent Director and not be an Affiliate of any of the Investor Parties, and such nominee shall be subject to the approval of the Nominating Committee (the "Director Recommendation Right" and together with the Director Nomination Right, "Governance Rights"); it being understood that (i) only an individual so proposed by the Investors shall be such one (1) nominee, and (ii) in the event that the Nominating Committee rejects such proposed nominee, the Investors may propose alternative nominee(s) in furtherance of its Director Recommendation Right. Until the Standstill Expiration Date, the Shareholders shall not, and shall cause each of their respective Investor Controlled Affiliates not to, nominate any person for appointment or election to the Board other than pursuant to the Governance Rights set forth herein. (b) The Board (or any committee thereof) shall have the right to nominate for election the remaining Directors that the Investors are not entitled to designate or nominate pursuant to Section 2.01(a), in accordance with the Articles of Incorporation and Bylaws. (c) The Investors shall notify the Company of any nominee designated or recommended for appointment or election to the Board (including any nominee so designated or recommended pursuant to the Director Nomination Right or the Director Recommendation Right) in writing no later than sixty (60) days prior to the one year anniversary of the immediately preceding annual meeting of shareholders of the Company, or as otherwise approved by the Company in writing, together with all information concerning such nominee required to be delivered to the Company by the Articles of Incorporation and Bylaws and such other information reasonably requested by the Company. The Board shall, in its sole discretion and in accordance with the Articles of Incorporation and Bylaws, determine the classification assignment of any such Investor Director so appointed or elected. (d) Until the Standstill Expiration Date, upon the death, resignation, retirement, disqualification or removal from office of any Investor Director, the Investors shall have the right to designate one individual (the “Purchaser Designee”) to beany replacement for such Investor Director, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Boardsubject to, and to receive all information in accordance with, the Governance Rights provided to in Section 2.01(a). (e) In the members of the Board during the period in which such person is a Board Observer; provided, event that the Board Observer shall not be entitled (or a committee thereof) relies on Section 2.06 to vote on any matter submitted exclude a nominee selected by the Investors pursuant to the Board Director Nomination Right from management's slate of nominees (or otherwise take adverse action with respect to any of its committees nor such Investor-selected nominee, including failing to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of recommend the election of the Purchaser Designeesuch Investor-selected nominee), and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange committee thereof) shall afford the Investors a reasonable opportunity to select a replacement nominee for inclusion on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companymanagement's slate of nominees.

Board Representation. Effective upon (a) The parties hereto acknowledge and agree that each of the IPO ClosingOriginal Voting Investors (or Affiliates, directors and employees of such Original Voting Investor) shall be entitled to (i) designate, on behalf of the Voting Investors, an individual to serve as a director of the Company (each a "Designated Director"), (ii) remove its Designated Director, and (iii) replace its Designated Director in the event of a vacancy created by such Designated Director. Such rights of designation, removal and replacement shall terminate if the Original Voting Investor (or Affiliates, directors and employees of such Investor) owns less than twenty-five percent (25%) of the Securities that such Investor originally purchased from USOL pursuant to that certain Subscription Agreement dated July 21, 1999, by and between the Investor and USOL. Upon termination of such rights of designation, removal and replacement, the Purchaser director position originally designated by an Original Voting Investor shall become a director position to be filled by the holders of Company common stock. Each of the Original Voting Investors hereby designates the individual identified opposite its name on EXHIBIT C to act as its initial Designated Director. Each Investor entitled to vote its shares of Company Preferred Stock shall vote its shares of Company Preferred Stock at any regular or special meeting of stockholders of the Company or in any written consent executed in lieu of such a meeting of stockholders and shall take all other actions (including using its best efforts to cause the board of directors of the Company to take all actions) necessary to give effect to the agreements contained in this Agreement (including, without limitation, the election of the Designated Directors provided for herein) and to ensure that the certificate of incorporation and bylaws of the Company as in effect at any time hereafter do not conflict in any respect with the provisions of this Agreement. In order to effectuate the provisions of this Agreement, each Investor hereby agrees that when any action or vote is required to be taken by such Investor pursuant to this Agreement, such Investor shall use its best efforts to call, or cause the appropriate officers and directors of the Company to call, a special or annual meeting of stockholders of the Company, as the case may be, or execute or cause to be executed, a consent in writing in lieu of any such meetings pursuant to applicable corporate law. To the extent this Section 4.4(a) does not apply to the election of directors of the Company, Sections 4.1 and 4.2 USOL HOLDINGS, INC. AGREEMENT AMONG INVESTORS shall govern the Investors' vote. If any Original Voting Investor transfers less than all of its Company Preferred Stock to one or more Affiliates, directors or employees of such Original Voting Investor, then the right to designate, remove and replace a Designated Director shall be determined, as among the Original Voting Investor and such Affiliates, directors or employees, by agreement of such parties. (b) Notwithstanding anything contained in this Agreement to the contrary, insofar as a Regulated Investor owns no Series A Company Preferred Stock, such Regulated Investor shall have no right to designate, remove or replace any Company directors or otherwise participate in the election of Company directors; except, however, so long as such Regulated Investor is an owner of any Company Preferred Stock, that Regulated Investor shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) appoint a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled representative to attend and observe Company board meetings of the Board, and to receive all documents and other information provided distributed to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companydirectors.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either Arch hereby covenants that: (a) on or prior to the Effective Date, Arch will cause a non-voting observer vacancy to be created on its Board of Directors (a “by increasing the number of members of such Board Observer”or otherwise) of and effective no later than the Company’s board of directors Effective Date will cause one person designated by the Standby Purchaser (the “Board”"Designee") to be elected or appointed to such Board with an initial term expiring at Arch's Annual Meeting of Stockholders to be held in the year 2000; and (b) elected so long as the Standby Purchaser beneficially owns (as a member result of its discretionary control of accounts, management discretion over investment funds or otherwise) capital stock of Arch representing at least (x) with respect to Arch's Meeting of Stockholders to be held in the year 2003 and meetings of Arch's stockholders held prior thereto, 5.0% and (y) with respect to meetings of Arch's stockholders held thereafter 10.0%, of the Board. Any Board Observer shall be entitled to attend meetings outstanding voting power, Arch will (i) nominate and recommend the Designee (or another person designated by the Standby Purchaser as the Designee's successor) for election at any meeting of Arch's stockholders at which the term of the BoardDesignee or any successor thereto would otherwise expire and (ii) fill any vacancy on Arch's Board of Directors created by the death, and to receive all information provided to the members resignation or removal of the Board during Designee or any successor thereto with another person designated by the period in which such person is a Board Observer; provided, Standby Purchaser as the Designee's successor. The Standby Purchaser hereby acknowledges that the Board Observer shall not Designee will be entitled required to vote on any matter submitted execute and deliver to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate Arch a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification confidentiality agreement in the form attached hereto as Exhibit D. executed by the existing members of Arch's Board of Directors. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice commitment of the Company’s counsel, Standby Purchaser hereunder is subject to the additional condition that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to Arch shall have performed its covenant set forth in clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to of the Companyfirst sentence of this Section 16.

Board Representation. (a) Effective upon as of the IPO Closing, the Purchaser Company shall have cause one person designated by Cypress, by written notice to the right Company not less than 10 Business Days prior to designate one individual the Closing Date, to be appointed by the Board of Directors by resolution to the Board as a director (the “Purchaser Designee”"Cypress Director") and one person designated by Cypress to be, at Purchaser’s election, either (a) be appointed as a non-voting observer to the Board (a “Board the "Cypress Observer”"). Thereafter, and for such period of time as Cypress (including for purposes of this Article III any Cypress Vehicles and Cypress Co-investors) continues to Beneficially Own in the aggregate the lesser of (i) Ordinary Shares and Ordinary Share Equivalents representing, on an as-converted basis, not less than 9.9% of the total voting power of the Company’s 's then-outstanding Voting Securities or (ii) Equity Securities of the Company that constitute not less than 35% of the Purchased Securities (on an as-converted basis) acquired by Cypress on the Closing Date, the Company shall cause (A) one person designated by Cypress in a written notice delivered to the Company not less than 60 days prior to the annual meeting of the shareholders of the Company to be nominated by the Nominating Committee for election or reelection to the Board at the next annual meeting of the shareholders of the Company as the Cypress Director and (B) one person designated by Cypress in a written notice delivered to the Company at any time to be appointed as a non-voting observer to the Board as the Cypress Observer. Any Cypress Director shall meet all applicable requirements for the qualification of membership in the board of directors as specified in the Sarbanes-Oxley Act of 2002 (the “Board”"Sarbanes-Oxley Act") or and The New Xxxx Xxxxx Xxxhange, Inc.'s Listex Xxxxxxx Xxxxal (the "NYSE Listing Rules"). (b) elected At all times during which Cypress is entitled to designate a Cypress Director, the Company shall take all action as may be necessary or appropriate under applicable law and the Company's Memorandum and Articles of Association, and use all other reasonable best efforts, to (i) include the Cypress Director in the slate of nominees for election to the Board at each annual or special meeting of shareholders at which the Cypress Director's term of office is to expire or in which a member Cypress Director is otherwise nominated for election, and (ii) solicit the vote of such shareholders in favor of the Board. Any Board Observer election, and against the removal from office, of the Cypress Director. (c) Cypress shall be entitled at any time (with or without cause) to attend meetings of cause any Cypress Director or Cypress Observer nominated pursuant to Section 3.1(a) to be removed from the Board, and in such event the Company will take such action as is reasonably required to receive all information provided to the members of the Board during the period in which effectuate such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committeesremoval. In the event of that a vacancy is created at any time by the Purchaser Designee’s death, disability disability, retirement, resignation or resignation from the Board prior to the Business Combination Closingremoval (with or without cause) of any director or observer specified in Section 3.1(a), the Purchaser Company shall have cause the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee vacancy created thereby to be elected to filled by an appropriate individual designated by Cypress by written notice as soon as reasonably practicable thereafter. (d) The Company shall reimburse each Cypress Director and Cypress Observer for all reasonable out-of-pocket expenses of such director in connection with the Board pursuant to clause performance of his or her duties as director or observer (b) above, as the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designeecase may be), and the Purchaser Designee each such Cypress Director shall also be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access receive compensation and indemnity arrangements equivalent to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice that received by all other outside directors of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon (a) The Company shall take all requisite action such that on the IPO ClosingClosing Date hereof, the size of the Board shall be set at seven (7) members and two (2) individuals designated by the Purchasers (each director designated by the Purchasers under this Agreement, a “TMP Purchaser Designee”, and collectively, the “TMP Purchaser Designees”) as Board nominees shall be appointed to the Board, and on the Closing Date, the Resigning Directors shall resign; provided, however, the Purchasers shall be permitted, in their discretion, to defer appointment of one or more of the TMP Purchaser Designees to one or more subsequent dates. The rights of the Purchasers under this Section 5.13 shall be exercised by a majority in interest of the Purchasers. (i) From and after the date hereof, the Company shall cause two (2) TMP Purchaser Designees to be nominated by the Company to serve on the Board and the total number of members of the Board shall be seven (7) or fewer to the extent certain of the TMP Purchaser Designees have not been appointed to the Board (as permitted above). Any TMP Purchaser Designees shall be appointed to the Board on the Closing Date or to the extent designated following the Closing Date, shall be appointed to the Board promptly following notice from the Purchasers and in any event, within one (1) Business Day. From and after the date hereof, the Company shall not change the size of the Board without the prior written consent of the Purchasers; provided that, unless waived by the Purchasers, in the event the size of the Board is changed, the Purchasers shall have the right to designate one individual that number of TMP Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less than as set forth in the previous sentence. For so long as such membership does not conflict with any applicable law or regulation or listing requirement of any Approved Market on which the Common Stock is listed for trading (as determined in good faith by the “Board), the TMP Purchaser Designees shall be entitled to serve as a member of, or observer to (provided that a majority of the Board or Board committee shall have the authority to dismiss any such observer from any meeting), at the TMP Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) each of the Company’s board committees of directors (the “Board”) or (b) elected as , except for any committee formed to consider a transaction between the Company and a member of the BoardPurchaser Group. Any The Company acknowledges that one TMP Purchaser Designee intends to hold a position on each Board Observer committee and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of one TMP Purchaser Designee to each such committee (subject to the limitations in the immediately preceding sentence). The Purchasers’ rights set forth in this Section 5.13(b) shall terminate on the first date on which the Purchasers collectively do not own at least 75% of the shares of Series A Preferred Stock and Series A Exchangeable Preferred Stock actually issued to, and purchased by, the Purchasers hereunder (including Series A Conversion Shares issued on conversion of the Series A Preferred Stock and the Series A Exchangeable Preferred Stock and any other securities of the Company or any successor thereto into which such shares are converted or exchanged) and the Purchasers shall promptly cooperate with the Company to determine whether such threshold has been met. Notwithstanding the foregoing, the rights of the Purchasers to nominate the TMP Purchaser Designees shall at no time be in excess of the level considered proportionate for purposes of the applicable Approved Market listing rules (in the case of Nasdaq, currently Rule 5640). As an example, if the Purchasers’ ownership is below the level set by Nasdaq required for having rights to nominate 2 out of 7 directors, but above the level set by Nasdaq required for having rights to nominate 1 out of 7 directors, the Purchasers shall be entitled to attend have 1 out of 7 directors nominated for election in accordance with this Section 5.13(b). (c) Solely with respect to those TMP Purchaser Designees that the Purchasers are entitled to designate pursuant to Sections 5.13(a) and/or 5.13(b) (and solely as long as the Purchasers remain entitled to so designate such TMP Purchaser Designees): (i) The Company shall use its reasonable best efforts to have such TMP Purchaser Designees elected as directors of the Company, including, without limitation, including such TMP Purchaser Designees in the Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for such TMP Purchaser Designees to the same extent as it does for any of its nominees to the Board, and including the recommendation of the Board in favor of election of the TMP Purchaser Designees. In the event a TMP Purchaser Designee is not elected at a stockholders meeting at which such designee is up for election, the Company shall cause such TMP Purchaser Designee to be appointed to the Board. (ii) Any vacancy in the position of a TMP Purchaser Designee shall only be filled with another TMP Purchaser Designee. Any vacancy created by any removal of a TMP Purchaser Designee or an election of the Purchasers to defer appointing one or more TMP Purchaser Designees shall also only be filled with another TMP Purchaser Designee. The Company shall not take any action to remove any TMP Purchaser Designee or fill a vacancy reserved for a TMP Purchaser Designee without the consent of the Purchasers. Any replacement TMP Purchaser Designees shall be appointed to the Board promptly following notice from the Purchasers and in any event, within two (2) Business Days. (iii) Each TMP Purchaser Designee shall be given notice of (in the same manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such TMP Purchaser Designee serves. Each TMP Purchaser Designee shall receive a copy of all notices, agendas and other materials distributed to receive all information the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such TMP Purchaser Designee will be in attendance at the members meeting. (d) In addition to any other indemnification rights the TMP Purchaser Designees have pursuant to this Agreement, the Certificate of Incorporation and the Bylaws, each such TMP Purchaser Designee that serves on the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designeeenter into, and the Company agrees to enter into, an Indemnification Agreement and a side letter contemplated by Section 6.1(j). The Company shall maintain director and officer insurance covering the TMP Purchaser Designee Designees on the same terms and with the same amount of coverage as is provided to other members of the Board. The Company shall reimburse the reasonable expenses incurred by the TMP Purchaser Designees in connection with attending (whether in person or telephonically) all meetings of the Board or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The TMP Purchaser Designees shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of same compensation for service on the Board, independent auditors and/or legal counselincluding, without limitation, cash fees, stock options, restricted stock and other equity awards, as the Board may designate, is provided to other non-employee directors. (e) The Company and the Board Observer (assuming Purchasers shall take or cause to be taken all lawful action necessary to ensure at all times as of and following the Board Observer were a member Closing Date that the Organizational Documents of the Board) would Company are not meet inconsistent with the then-applicable standards for independence adopted by provisions of this Agreement and the NASDAQ Capital Market, Transaction Documents or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary transactions contemplated hereby or otherwise, to the Companythereby.

Board Representation. Effective (i) So long as any Series A Preferred Stock remains outstanding, the Requisite Preferred Holders shall be entitled to elect one individual to the Board to serve as a director, which individual initially shall be Exxx Xxxxx; provided, however, that upon the IPO Closingoccurrence or the continuance of any Event of Default, the Purchaser Requisite Preferred Holders shall be entitled to elect one additional individual to the Board to serve as a director (a "Default Director"). (ii) Notwithstanding any other sections of the Certificate of Incorporation, so long as any Series A Preferred Stock remains outstanding, the Requisite Preferred Holders shall be entitled to (A) remove from the Board any Preferred Director elected under the foregoing subsection (i), (B) elect each successor to any such Preferred Director removed in accordance herewith or who otherwise vacates such office, and (C) remove any other director necessary to create sufficient vacancies on the Board to permit the Requisite Preferred Holders to elect additional individuals to the Board upon an occurrence or continuance of an Event of Default, or an Event of Option, pursuant to the foregoing clause (i) above. (iii) The right of the Preferred Holders to elect directors may be exercised at the special meeting called pursuant to this Section, at any annual or other special meeting of shareholders and, to the extent and in the manner permitted by Applicable Law, pursuant to a written consent in lieu of a shareholders meeting. A proper officer of the Corporation shall, upon the written request of the Requisite Preferred Holders, addressed to any officer of the Corporation, call a special meeting of the holders of Preferred Stock for the purpose of electing directors pursuant to this Section. Such meeting shall be held at the earliest legally permissible date at the principal office of the Corporation, or at such other place designated by the Requisite Preferred Holders. If such meeting has not been called by a proper officer of the Corporation within 2 days after personal delivery, by hand or by a nationally recognized, overnight courier guaranteeing next business day delivery, of such written request upon any officer of the Corporation or within 5 days after mailing the same to the secretary of the Corporation at its principal office, then the Requisite Preferred Holders may call such meeting at the expense of the Corporation, and such meeting may be called upon the notice required for annual meetings of shareholders and shall be held at the Corporation's principal office, or at such other place designated by the Requisite Preferred Holders. The Preferred Holders shall be given access to the stock record books of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to this Section. (iv) At any meeting or at any adjournment thereof at which the Preferred Holders have the right to designate one individual (elect directors, the “Purchaser Designee”) to bepresence, at Purchaser’s electionin person or by proxy, either (a) a non-voting observer (a “Board Observer”) of the Company’s board Preferred Holders shall be required to constitute a quorum for the election or removal of directors (any director by the “Board”) or (b) elected as a member Requisite Preferred Holders. The affirmative vote of the Board. Any Board Observer Requisite Preferred Holders shall be required to elect or remove any Preferred Director. (v) If any Event of Default shall occur and be continuing, the Preferred Holders shall also have any other rights which such holder is entitled to attend under any Document at any time and any other rights which such holder may have pursuant to Applicable Law. (vi) The Corporation shall pay or reimburse each Preferred Director for the reasonable out-of-pocket expenses incurred by such Person in connection with attending formal meetings of the Board, Board and any committee thereof. The Corporation shall use its best efforts to receive maintain video teleconferencing capabilities for all information provided to the members formal meetings of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on and any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companycommittee thereof.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either Arch hereby covenants that: (a) on or prior to -------------------- the Effective Date, Arch will cause a non-voting observer vacancy to be created on its Board of Directors (a “by increasing the number of members of such Board Observer”or otherwise) of and effective no later than the Company’s board of directors Effective Date will cause one person designated by the Standby Purchaser (the “Board”"Designee") to be elected or appointed to such Board with an initial term expiring at Arch's Annual Meeting of Stockholders to be held in the year 2000; and (b) elected so long as the Standby Purchaser beneficially owns (as a member result of its discretionary control of accounts, management discretion over investment funds or otherwise) capital stock of Arch representing at least (x) with respect to Arch's Meeting of Stockholders to be held in the year 2003 and meetings of Arch's stockholders held prior thereto, 5.0% and (y) with respect to meetings of Arch's stockholders held thereafter 10.0%, of the Board. Any Board Observer shall be entitled to attend meetings outstanding voting power, Arch will (i) nominate and recommend the Designee (or another person designated by the Standby Purchaser as the Designee's successor) for election at any meeting of Arch's stockholders at which the term of the BoardDesignee or any successor thereto would otherwise expire and (ii) fill any vacancy on Arch's Board of Directors created by the death, and to receive all information provided to the members resignation or removal of the Board during Designee or any successor thereto with another person designated by the period in which such person is a Board Observer; provided, Standby Purchaser as the Designee's successor. The Standby Purchaser hereby acknowledges that the Board Observer shall not Designee will be entitled required to vote on any matter submitted execute and deliver to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate Arch a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification confidentiality agreement in the form attached hereto as Exhibit D. executed by the existing members of Arch's Board of Directors. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice commitment of the Company’s counsel, Standby Purchaser hereunder is subject to the additional condition that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to Arch shall have performed its covenant set forth in clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to of the Companyfirst sentence of this Section 16.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Until the earlier to occur of the Company’s board tenth anniversary of directors the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement and the date on which the Apollo/Blackstone Shareholders own, collectively, less than 20% of the Apollo/Blackstone Shares (the “Board”"Shareholder Designee Period"), the Board of Directors shall consist of no more than thirteen (13) or (b) elected directors during the Shareholder Designee Period. For so long as a member of the Board. Any Board Observer Apollo/Blackstone Shareholders are entitled to at least two Shareholder Designees under this Agreement, the Apollo/Blackstone Shareholders shall be entitled to attend meetings of the Board, and to receive all information provided to the members have one Shareholder Designee serve on each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as set forth below with respect to the Nominating Committee. (b) Immediately following the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, the Company will cause Xxxxx Xxxxxxx to be elected or appointed to the Board of Directors. At all times during the period Shareholder Designee Period, the Company agrees, subject to Section 3.1(d), to support the nomination of, and the Company's Nominating Committee (as defined herein) shall recommend to the Board of Directors the inclusion in which such person is the slate of nominees recommended by the Board of Directors to shareholders for election as directors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company ("Management Directors"), (ii) (A) five Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 80% or more of the Apollo/Blackstone Shares, (B) four Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 60% or more but less than 80% of the Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of the Apollo/Blackstone Shares, (D) two Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 20% or more but less than 40% of the Apollo/Blackstone Shares, and (E) one Shareholder Designee, so long as the Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of the Apollo/Blackstone Shares (each a Board Observer"Beneficial Ownership Threshold"); provided, however, that if at any time as a result of the Company's issuance of Voting Securities the Shareholders beneficially own 9% or less of the Actual Voting Power (the "Actual Voting Power Threshold"), the Apollo/Blackstone Shareholders shall be entitled to no more than three Shareholder Designees (even if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater number of Shareholder Designees pursuant to clauses (A) through (E) above), and (iii) such other persons, each of whom is (A) recommended by the Nominating Committee and (B) not an employee or officer of or outside counsel to the Company or a partner, employee, director, officer, affiliate or associate (as defined in Rule 12b-2 under the Exchange Act) of any Shareholder or any affiliate of a Shareholder or as to which the Shareholders or their affiliates own at least ten percent of the voting equity securities ("Unaffiliated Directors"). If any vacancy (whether by death, retirement, disqualification, removal from office or other cause, or by increase in number of directors) occurs prior to a meeting of the Company's stockholders, the Board (i) may appoint a member of management to fill a vacancy caused by a Management Director ceasing to serve as a director, (ii) shall appoint, subject to Section 3.1(d), a person designated by the Apollo/Blackstone Shareholders to fill a vacancy created by a Shareholder Designee ceasing to serve as a director (except as a result of the reduction of the number of Shareholder Designees entitled to be included on the Board of Directors by reason of a decrease in the Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or by reasons of a decrease in the Shareholders' beneficial ownership of Voting Securities below the Actual Voting Power Threshold), and (iii) may appoint a person who qualifies as an Unaffiliated Director and is recommended by the Nominating Committee pursuant to the procedures set forth in the following paragraph to fill a vacancy created by an Unaffiliated Director ceasing to serve as a director (provided, however, that in the case of a vacancy relating to an Unaffiliated Director, if a majority of the Nominating Committee is unable to recommend a replacement, then the Board seat with respect to this vacancy shall remain vacant), and each such person shall be a Management Designee, Shareholder Designee or Unaffiliated Director, as the case may be, for purposes of this Agreement. At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one or more persons to serve as Unaffiliated Directors (except with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Apollo/Blackstone Shareholders beneficially own less than 50% of the Apollo/Blackstone Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not be further amended by the Board of Directors during the Shareholder Designee Period. Notwithstanding the foregoing, the Company shall have no obligation to support the nomination, recommendation or election of any Shareholder Designee pursuant to this Section 3.1(b) or any other obligation under this Section 3.1 if the Apollo/Blackstone Shareholders are in breach of any material provision of this Agreement. (c) Upon any decrease in Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or any decrease in the Shareholders beneficial ownership of Voting Securities below the Actual Voting Power Threshold, the Apollo/Blackstone Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board Observer of Directors immediately thereafter will be equal to the number of Shareholder Designees which the Apollo/Blackstone Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, the Apollo/Blackstone Shareholders shall promptly cause all of the Shareholder Designees to offer to resign immediately from the Board of Directors and any committees thereof and the Company's obligations under this Section 3.1 shall terminate. (d) Notwithstanding the provisions of this Section 3.1, the Apollo/Blackstone Shareholders shall not be entitled to vote on designate any matter submitted person to the Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its committees nor outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to offer serve as a director of the Company or if the Company objects to a Shareholder Designee because such Shareholder Designee has been involved in any motions of the events enumerated in Item 2(d) or resolutions to the Board (e) of Schedule 13D or such committees. In person is currently the event target of the Purchaser Designee’s deathan investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, disability decree, or resignation from the Board prior to the Business Combination Closingjudgment of any court or agency prohibiting service as a director of any public company or providing investment or financial advisory services and, in any such event, the Purchaser Apollo/Blackstone Shareholders shall have withdraw the right to designation of such proposed Shareholder Designee and designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser therefor (which replacement Shareholder Designee to shall also be elected subject to the Board pursuant requirements of this Section). The Company shall use its reasonable best efforts to clause (b) above, notify the Sponsor hereby agrees Apollo/Blackstone Shareholders of any objection to vote all a Shareholder Designee sufficiently in advance of its shares in the date on which proxy materials are mailed by the Company in favor of the connection with such election of directors to enable the Purchaser Designee, and Apollo/Blackstone Shareholders to propose a replacement Shareholder Designee in accordance with the Purchaser terms of this Agreement. (e) Each Shareholder Designee serving on the Board of Directors shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access all compensation and stock incentives granted to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice directors who are not employees of the Company’s counsel, that such exclusion is reasonably necessary to preserve Company on the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designatesame terms provided to, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, subject to the Companysame limitations applicable to, such directors.

Board Representation. Effective (a) At such time beginning 60 days after Investor, together with its Affiliates, beneficially owns more than 10% of the outstanding Common Stock of the Company, and ending at such time as Investor, together with its Affiliates, beneficially owns less than 65% of the number of Pre-Funded Warrants purchased by the Investor under the Purchase Agreement (as adjusted for stock splits, recapitalizations and other similar events and including all shares of Common Stock issued upon the IPO Closingconversion of the Pre-Funded Warrants to the extent still beneficially owned by the Investor and/or its Affiliates) (such period, the Purchaser “Board Designation Period”), Investor shall have the right be entitled to designate one individual (the “Purchaser Investor Designee”) to beserve on the Board of Directors. Following any exercise of such right by the Investor, and the appointment of the Investor Designee to the Board of Directors, which appointment the Company agrees to do as soon as reasonably practicable after such exercise, the Company shall include the Investor Designee in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) each annual or special meeting of the Company’s board stockholders at which directors of the same class as the Investor Designee are to be elected and every adjournment or postponement thereof (an “Election Meeting”). The Company will support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable law, to recommend and include, the Investor Designee in the slate of nominees recommended to the Company’s stockholders for election as directors (of the “Board”) Company at each Election Meeting; provided that, the Company shall have no obligation to support the nomination of or cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company an Investor Designee if the Investor already has an Investor Designee serving as a director on the Board of Directors at the time of the Election Meeting and the term of such Investor Designee as a director on the Board of Directors does not expire at such Election Meeting. In the event that an Investor Designee resigns from his or her seat on the Board of Directors or is removed or otherwise fails to become or ceases to be a director for any reason, the Company shall cause the vacancy to be filled by the election or appointment of another Investor Designee designated by the Investor as soon as reasonably practicable in compliance with applicable laws, rules and regulations. The Investor will provide the Company, in writing, the information about any Investor Designee that is reasonably required by applicable law for inclusion in the Company’s proxy materials for meetings of stockholders promptly after the Company requests such information from the Investor, and will cause any Investor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally. (b) elected as a member Notwithstanding the provisions of Section 2(a), the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer Investor shall not be entitled to vote on designate any matter submitted person as a nominee to the Board or any of its committees nor to offer any motions or resolutions to Directors if a majority of the disinterested members of the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes Directors reasonably determines in good faith, upon advice of the Company’s after consultation with outside legal counsel, that such exclusion is reasonably necessary person would not be qualified to preserve the attorney-client privilege between serve as a director of the Company and such counsel; under any applicable law (including requirements of fiduciary duties under applicable law), rule or (ii) such portion of a meeting is an executive session limited solely to independent director members regulation, rule of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other stock exchange on which the Company’s securities shares are then tradedlisted, the Bylaws or any policy or guidelines previously approved by the Board of Directors, provided that the direct or indirect purpose of any such policy or guideline is not to obstruct the Investor’s right to designate an individual as a nominee to the Board of Directors or its rights under this Agreement. In The Company shall notify the event the Purchaser designates a Board Observer Investor of any objection to an Investor Designee pursuant to clause this Section 2(b) sufficiently in advance of the date on which the proxy materials related to any such designee are to be mailed by the Company in connection with such election of directors, and in no event less than the first business day after such determination by the Board of Directors, so as to enable the Investor to propose a replacement Investor Designee in accordance with the terms of this Agreement. (ac) aboveFor the sake of clarity, Purchaser’s this Section 2 shall terminate and be of no further force or effect upon the expiration of the Board Observer shall have no duties, fiduciary or otherwise, to the CompanyDesignation Period.

Board Representation. Effective upon (a) Upon the IPO occurrence of the Second Closing, (i) the Purchaser Company shall increase the size of the Board by two directors and (ii) the Board shall fill these vacancies with two persons designated by the Investor who shall be reasonably acceptable to the Board (including that each such person shall have had at least five years of private industry experience, generally confirm the Company’s mission and strategy and qualify as “independent” in accordance with Nasdaq and the Exchange Act) and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”), all as set forth under “Corporate Governance” on the Company’s website at wxx.xxxxxxx.xxx. In addition, the applicable definitions of “independent” as currently in effect are set forth on Exhibit C attached hereto. (b) Following the Second Closing and until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election two Qualified Nominees designated by the Investor to serve as directors on the Board (each a “Board Representative”) and shall use its reasonable best efforts to cause such persons to be elected to serve as directors on the Board (it being understood that such Qualified Nominees shall not be in addition to the persons designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate one individual two Qualified Nominees to serve on the Board at any given time shall be limited to two persons); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominees as directors and (ii) upon the “Purchaser Designee”death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Each of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer Representatives, if any, shall be entitled to attend meetings the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to receive reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify each Board Representative of all information regular and special meetings of the Board and shall notify each Board Representative of all regular and special meetings of any committee of the Board of which the respective Board Representative is a member. The Company shall provide each Board Representative with copies of all notices, minutes, consents and other materials provided to the all other members of the Board during concurrently as such materials are provided to the period in which such person is a Board Observer; provided, other members. (d) Investor acknowledges and agrees that if the Board Observer Second Closing does not occur (i) Investor shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates Qualified Nominee or a Purchaser Designee to be elected to the Board pursuant to clause (b) aboveRepresentative, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause Company shall have no obligation under paragraphs (a) above, Purchaser’s Board Observer - (c) of this Section 2.3 and (iii) neither the Investor nor any person designated by Investor as provided above in this Section 2.3 shall have no duties, fiduciary or otherwise, to the Companyany rights under this Section 2.3.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer Effective on the date hereof, the Board shall be comprised of seven (a “Board Observer”7) Directors of whom: (i) three (3) shall be designees of the Company’s board of directors Investor Stockholders (the “Board”"Investor Representatives"), (ii) one (1) shall be the designee of ITI (the "ITI Representative"), (iii) one (1) shall be the designee of Casty (the "Casty Representative"), (iv) one (1) shall be an Independent Director designated by the Investor Stockholders (the "Investor Independent Representative") and (v) one (1) shall be an Independent Director acceptable to the Investor Stockholders, Casty and ITI (with such consents not to be unreasonably withheld or delayed) (the "Independent Representative"). The initial Investor Representatives shall be Xxxxxxx Xxxxxx, Xxxx X. Lama and Xxxxxx Xxxxxx, the initial ITI Representative shall be Shalom, the initial Casty Representative shall be Eidelstein, the initial Investor Independent Representative shall be Xxxxxxx Xxxxxxxxx and the initial Independent Representative shall be Xxxxxx Xxxxx. For purposes hereof, each of the three Investor Representatives and the Investor Independent Representative shall count as one of the four Preferred Directors (as defined in the Certificates of Designation). (b) elected The Company shall take such action as a member may be required under applicable law (i) to cause the Board to consist of the Boardnumber of Directors specified in clause (a), (ii) to include in the slate of nominees recommended by the Board the Investor Representatives, the ITI Representative, the Casty Representative, the Investor Independent Representative and the Independent Representative (collectively, the "Representatives"), and (iii) to cause the Representatives to be duly appointed in accordance with the foregoing and, in the case of the Investor Representatives, in accordance with the Certificates of Designation. Any Board Observer shall be entitled The Company agrees to attend meetings use its reasonable best efforts to cause the election of the Representatives to the Board, and including nominating such individuals to receive all information be elected as Directors as provided to the members herein. (c) Each of the Board during Investor Stockholders and the period in which such person is a Board Observer; providedStockholders agrees to vote, that the Board Observer shall not be entitled or act by written consent with respect to vote on any matter submitted to the Board Voting Securities beneficially owned by him or any of its committees nor to offer any motions it, at each annual or resolutions to the Board or such committees. In the event special meeting of the Purchaser Designee’s death, disability stockholders of the Company at which Directors are to be elected or resignation from to take all actions by written consent in lieu of any such meeting as are necessary to cause the Board prior to Representatives designated by the Business Combination Closing, others in accordance with the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee terms of this Agreement to be elected to the Board pursuant and agrees to clause use his or its reasonable best efforts to cause the election of each such designee to the Board, including nominating such individuals to be elected as Directors. (bd) aboveIn the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Representative, the Sponsor remaining Directors and the Company shall cause the vacancy created thereby to be filled by a new designee of the party or parties that designated such Director as soon as possible, who is designated in the manner specified in this Section 2.1. Each of the Company, Investor Stockholders and the Stockholders hereby agrees to vote take, at any time and from time to time, all actions necessary to accomplish the same. Upon the written request of its shares in the Company in favor any party who is entitled to designate a Representative, each of the election Investor Stockholders and Stockholders shall vote, or act by written consent with respect to all Voting Securities beneficially owned by him or it and otherwise take or cause to be taken all actions necessary to remove any Director designated by such party. Unless, any party who is entitled to designated a Representative shall otherwise request in writing, none of the Purchaser Designee, and others shall take any action to cause the Purchaser Designee shall be entitled to an indemnification agreement in removal of any Director designated by the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: former. (ie) the Board concludes in good faith, upon advice Each of the Company’s counsel, the Investor Stockholders and the Stockholders agrees not to take any action that such exclusion is reasonably necessary would cause the number of Directors constituting the entire Board to preserve be other than the attorney-client privilege between number provided in Section 2.1(a) without the written consent of each other party entitled to designate a Representative. (f) The covenants and agreements set forth herein shall be subject to the fiduciary obligations of the Representatives now or hereafter serving on the Board and shall not prevent the Representatives now or hereafter serving on the Board from taking any action or refraining to take any action while acting in the capacity as a Director of the Company. The foregoing shall not limit the rights or obligations of the Investor Stockholders, ITI and Casty in their capacity as stockholders of the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyhereunder.

Board Representation. Effective upon (a) Following the IPO Closing, the Purchaser shall have the right be entitled to designate one individual (Xxxxx Xxxxxx, III to the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of Directors of the Company’s board of directors Company (the “Board”) or for appointment to the Board (such designee, the “Purchaser Director”). Upon such designation, the Nominating and Corporate Governance Committee (the “NCGC”) shall recommend the appointment of the Purchaser Director and the Board shall appoint the Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NCGC nor the Board shall withhold its recommendation for the re-election of the Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, until the Purchaser Rights Termination Event, the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its stockholders that the Company’s stockholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use commercially reasonable efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board. (b) elected as a member of the Board. Any Board Observer The Purchaser Director shall be entitled to attend meetings receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to receive reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all information regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members. (c) Following the Purchaser Rights Termination Event, the Purchaser will have no further rights under this Section 6.1(c) and, at the written request of the Board, the irrevocable resignation letter described in Section 6.1(e)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board. (d) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board during (but excluding such Purchaser Director) from the period in portion of any Board meeting at which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor is evaluating or taking action with respect to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice exercise of any of the Company’s counselrights or enforcement of any of the obligations under this Agreement, that such exclusion is reasonably necessary to preserve the attorney-client privilege between Commercial Agreement, the Company and such counsel; Certificate of Designations or the Warrants or (ii) such portion any transaction proposed by, or with, the Purchaser or its Controlled Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal. (e) As a meeting condition to the appointment of the Purchaser Director or nomination for election as a director of the Company pursuant to this Section 6.1(e), the Purchaser Director shall provide to the Company: (i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and Representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards; (ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and (iii) an executive session limited solely undertaking in writing by the Purchaser Director, to independent director the extent the same is made by the other members of the Board: (1) to be subject to, independent auditors and/or legal counsel, as bound by and duly comply with the Board may designate, code of conduct and the Board Observer (assuming the Board Observer were a member other policies of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital MarketCompany, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwisein each case, to the extent applicable to all other non-executive directors of the Company; and (2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and (iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement. (f) Purchaser agrees that it shall, and it shall cause and direct its Controlled Affiliates to, vote (including, if applicable, by delivering one or more proxies or through the execution of one or more written consents if stockholders of the Company are requested to vote through the execution of an action by written consent in lieu of any annual or special meeting of stockholders of the Company) any voting Equity Securities owned by them or over which they have voting control to be present for quorum purposes, in favor of all those persons nominated to serve as directors of the Company by the NCGC of the Board and against any nominee not so nominated.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual So long as CIMSA beneficially owns at least seventy-five percent (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”75%) of the Purchased Shares (as determined pursuant to Rule 13d-3 under the Exchange Act), the Company’s board Board of directors Directors (the “Board”) or (b) elected shall take all actions necessary under the Company Organizational Documents to cause one individual designated by CIMSA to be appointed as a member of the Board and to be nominated for election at each meeting of shareholders of the Company pursuant to which directors are elected (each such designated individual, a “CIMSA Designee”). At all times during which a CIMSA Designee is subject to the election of shareholders of the Company, the Company and the Board shall provide such CIMSA Designee with such reasonable support as is normally afforded to director nominees of the Company recommended to shareholders. The CIMSA Designee shall be subject to the reasonable and good faith approval of the Board. Any ; provided, however, that if the Board Observer does not approve any CIMSA Designee, CIMSA shall be entitled to attend meetings of submit additional designees as required to obtain the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees’s approval. In the event that the CIMSA Designee ceases to serve as a member of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to completion of his or her term after being appointed by the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of elected by the Company’s counselshareholders, the resulting vacancy on the Board shall be filled by a person designated by CIMSA, subject to such aforesaid approval of the Board. The CIMSA Designee shall resign from the Board during his or her term within twenty-four (24) hours of such time that CIMSA ceases to beneficially own at least 75% of the Purchased Shares (as determined pursuant to Rule 13d-3 under the Exchange Act). The Company covenants and agrees to provide each such exclusion is reasonably necessary CIMSA Designee with indemnification identical to preserve that then enjoyed by the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director other members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon (a) As promptly as practicable following the IPO Closingdate of this Agreement, the Purchaser Board shall have (i) increase the right size of the Board from eight (8) to designate one individual ten (10) directors and (ii) appoint two individuals designated by ACP to serve on the Board (the “Purchaser Stockholder Designees”); provided, however, that such Stockholder Designee shall satisfy the applicable requirements set forth in Section 3.1(b); provided, further, that if a Board Right Termination Event occurs with respect to a Stockholder Designee, the Stockholders shall promptly cause such Stockholder Designee, if any, then serving on the Board to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which such Stockholder Designee is then appointed or on which he or she is then serving, and the right of ACP to designate such Stockholder Designee shall terminate. The first Stockholder Designee (the “First Stockholder Designee”) shall be appointed to be, the class of Directors that stood for reelection at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors second most recently completed stockholder meeting and the second Stockholder Designee (the “BoardSecond Stockholder Designee”) shall be appointed to the class of Directors that stood for reelection at the most recently completed stockholder meeting. For the avoidance of doubt, the Company may at any time and from time to time increase or (b) elected decrease the size of the Board or change its composition; provided that such increase or decrease does not affect the tenure, term or other rights to serve as a member of the BoardBoard of any Stockholder Designee as set forth in this Agreement. (b) Notwithstanding anything to the contrary set forth in this Agreement, any Stockholder Designee designated by ACP pursuant to Section 3.1 (i) shall not be a person that, at the time of such designation, would be required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D if such Stockholder Designee were the “person filing” such Schedule 13D, (ii) shall not, at the time of such designation, be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or NASDAQ or pursuant to applicable Law, (iii) shall, prior to his or her appointment to the Board provide an executed resignation letter in substantially the form set forth in Annex A hereto resigning from the Board and from any committees or subcommittees thereof to which he or she is then appointed or on which he or she is then serving upon the occurrence of the Board Right Termination Event applicable to such Stockholder Designee, and (iv) shall, in the good faith reasonable judgment of the Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”), satisfy the requirements set forth in the Company’s Organizational Documents and Code of Business Conduct and Ethics included in the corporate governance section of the Company’s website (as in effect from time to time), in each case to the extent applicable to all non-employee Directors generally. Any Board Observer shall be entitled The Company agrees that each of the persons set forth on Schedule 3.1(b) satisfies all of the foregoing requirements of this Section 3.1(b) as of the date hereof. The Stockholder Designee shall, upon appointment or election, as the case may be, to attend meetings of the Board, abide by the provisions of all codes and policies of the Company that are applicable to receive all information provided non-employee Directors generally, including, as applicable, the Company’s Ixxxxxx Xxxxxxx Policy, policies requiring the pre-clearance of all securities trading activity by or on behalf of such Stockholder Designee and the Company’s Code of Business Conduct and Ethics (other than any such code or policy, or portion thereof, if any, that conflicts with the obligations of the Stockholders under this Agreement or would impose any obligation on any Stockholder not expressly set forth in this Agreement). For the avoidance of doubt, the Company shall provide each Stockholder Designee with the same director indemnification and exculpation, including without limitation indemnification agreements and directors’ and officers’ insurance coverage, as are available from time to time to non-employee directors generally. (c) During the Board Right Period, the Company shall use commercially reasonable efforts to procure, at each annual general meeting of stockholders of the Company occurring during the Board Right Period at which the term of the Stockholder Designee will expire in accordance with the Company’s Organizational Documents (whether by rotation or otherwise), the election or re-election, as the case may be, of the applicable Stockholder Designee to the members of the Board during the period Board, including by (i) nominating such Stockholder Designee for election to serve as a Director as provided in which this Agreement, (ii) subject to compliance by ACP with Section 3.1(f), including such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or nomination and other required information regarding such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Stockholder Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company Company’s proxy materials for such meeting of stockholders and (iii) soliciting or causing the solicitation of proxies in favor of the election of such Stockholder Designee as a Director, for a term expiring at the Purchaser next annual general meeting of Stockholders at which members of the class of Directors to which the Stockholder Designee belongs are to be elected or re-elected, as the case may be, or until such Stockholder Designee’s successor shall have been elected and qualified, or at such earlier time, if any, as such Stockholder Designee may resign, retire, die or be removed (for any reason) as a Director, including upon the occurrence of a Board Right Termination Event in accordance with the terms of this Agreement. (d) Notwithstanding the foregoing, the Company shall not be obligated to procure the election or re-election of any individual pursuant to Section 3.1(c) if such individual shall have previously been designated by ACP pursuant to Section 3.1(a) or 3.1(e) and nominated by the Company for election or re-election, as the case may be, as a Director as provided in Section 3.1(c) (and provided that the Company shall have complied with its obligations set forth in Section 3.1(c) in respect thereof), and, following the vote of stockholders at the annual general meeting of stockholders of the Company, shall have failed to be elected or re-elected, as the case may be, as a Director by the requisite vote of the Company’s stockholders. (e) In furtherance of, and not in limitation to, ACP’s rights in this Section 3.1, during the Board Right Period, (i) ACP shall have the right (but not the obligation), upon written notice to the Company as provided in Section 3.1(a), to designate a Stockholder Designee to replace any Stockholder Designee who shall have resigned, retired, died or been removed from office (for any reason) or who, following the voting of stockholders at a meeting of stockholders of the Company shall have failed to be elected or re-elected, as the case may be, by the requisite vote of the Company’s stockholders; and (ii) the provisions of Sections 3.1(c) and 3.1(d) shall apply to, and the Purchaser Company shall comply with its obligations contained therein in respect of, any such replacement Stockholder Designee and, in addition, promptly following the receipt of written notice from ACP as contemplated above following the resignation, retirement, death or removal from office of such Stockholder Designee, the Board shall appoint such replacement Stockholder Designee to serve on the Board in the class of Directors previously including such former Stockholder Designee. (f) Not less than one hundred twenty (120) days prior to the anniversary of the prior year’s annual general meeting of stockholders of the Company occurring during the Board Right Period at which members of the class of Directors to which the Stockholder Designee belongs are to be elected, ACP shall (i) notify the Company in writing of the name of the Stockholder Designee to be nominated for election at such meeting and (ii) provide, or cause such Stockholder Designee to provide, to the Company, all information concerning such Stockholder Designee and his or her nomination to be elected as a Director at such meeting as shall reasonably be required by the Company’s standard director and officer questionnaire (including any reasonable follow-up requests by the Company for additional information). (g) During the Board Right Period, the Company agrees that any Stockholder Designee serving as a Director shall be entitled to an the same rights, privileges and compensation applicable to all other non-employee Directors generally or to which all such non-employee Directors are entitled, including any rights with respect to indemnification agreement arrangements, directors and officers insurance coverage and other similar protections and expense reimbursement, except that, with respect to the First Stockholder Designee, such Stockholder Designee shall not receive the director fees that are payable by the Company to non-employee Directors generally. (h) Notwithstanding anything in this Section 3.1 to the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: contrary, (i) the Company will not be obligated to take any action in respect of any Stockholder Designee pursuant to Sections 3.1(c) if ACP shall have failed, in any material respect, to provide, or cause to be provided, the notice and information required by clauses (i) and (ii) of Section 3.1(f); provided, however, that following the curing of the any such failure, ACP’s right to designate Stockholder Designees shall be reinstated and the Company will take such action as is necessary to appoint or otherwise reinstate the Stockholder Designees to the Board, and (ii) if a material breach of this Agreement by the Stockholders shall have occurred, which breach has not been cured in all material respects within fifteen (15) Business Days of the receipt by the Stockholders of written notice from the Company specifying in reasonable detail the nature of such material breach, in addition to any other remedies that the Company may have, the Company may terminate ACP’s right to designate the Stockholder Designees hereunder. (i) During the Board concludes Right Period, except as required by applicable Law, the Company shall not take any action to cause the removal (without cause) of a Stockholder Designee serving as a Director. ACP shall cause each then-serving Stockholder Designee to resign (subject to ACP’s right to designate a replacement Stockholder Designee in accordance with Section 3.1(e)) or, if reasonably sufficient, recuse himself or herself if the presence of such individual as a Stockholder Designee on the Board shall, in the reasonable and good faithfaith judgment of the Board (after deliberation and an opportunity for the applicable Stockholder Designee to be heard if desired), upon advice reasonably be likely to violate applicable Law or otherwise be reasonably likely to impair the Board’s exercise of its fiduciary duties. (j) Notwithstanding anything to the contrary in this Agreement, each Stockholder Designee, during the term of any service as a Director of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company shall not be prohibited from acting in his or her capacity as a director and such counsel; complying with his or (ii) such portion her fiduciary duties as a director of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) Contemporaneously with or prior to Closing, and as a non-voting observer condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (a “Board Observer”i) (A) not less than four members of the Company’s Buyer's board of directors shall have submitted their resignations, effective as of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) X.X. Xxxxxx shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the “Board”four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) or Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) above. (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor Seller hereby agrees to vote all of its shares in the Company of Common Stock in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement matters described in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to including the Companyelection of the Continuing Directors.

Board Representation. Effective upon (a) On or prior to the IPO ClosingClosing Date, the Board of Directors of the Company shall be expanded by three positions thereby creating three vacancies on the Board. Xx. Xxxxxx XxXxxxx shall be appointed, immediately following the Closing Date, to fill one of these vacancies as a member and Chairman of the Board, serving in a non-executive capacity. If Xx. Xxxxxx XxXxxxx is unable or ceases to serve on the Board for any reason, the Purchaser shall have the right to designate recommend to the Governance and Nominating Committee for nomination by the Board one individual new director (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected replace Xx. Xxxxxx XxXxxxx as a member of the Board. Any Board Observer ), who need not qualify as an “independent director” (as that term is defined in Rule 4200 of the National Association of Securities Dealers, Inc. or any comparable regulation to which the Company may be subject from time to time) (“Independent Director”), and who shall be entitled to attend meetings of the Board, and to receive all information provided to the members successor Chairman of the Board during the period in which such person is a Board Observer; provided, that if approved by the Board Observer shall not be entitled to vote on any matter submitted to (provided that if such individual is rejected by the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination ClosingBoard, the Purchaser shall have the right to designate recommend up to two more candidates to serve as successor Chairman, subject to Board approval, and provided further that if the Board rejects such two additional candidates, Purchaser will retain the rights set forth below to continue recommending candidates to replace Xx. XxXxxxx, but not as Chairman of the Board). The Purchaser shall have the right to recommend two additional directors to the Governance and Nominating Committee for nomination by the Board to fill the remaining two vacancies created by the expansion, which directors, upon appointment, must each qualify as an Independent Director for all Committee purposes. If one or more candidates recommended by the Purchaser pursuant to this Section are rejected by the Committee or the Board, the Purchaser shall have an ongoing right to recommend candidates to fill the aforementioned vacancies until three candidates are qualified and accepted and there are no remaining vacancies on the Board. Each director recommended to the Board by the Purchaser is referred to herein as a replacement “Purchaser Designee”. For so long as Purchaser owns, in the aggregate, at least 20% of the outstanding shares of Common Stock of the Company (the “Required Interest”), the Purchaser shall be entitled to nominate three Purchaser Designees to the Company’s Board of Directors. In the event that the Purchaser designates owns an interest in the Company that is less than the Required Interest but equal to or greater than 15% of the outstanding shares of Common Stock of the Company (the “Minimum Interest”), and Purchaser currently has three Purchaser Designees serving on the Board of Directors, then, unless otherwise agreed by a majority of the Board other than the Purchaser Designees, the Purchaser shall cause one of the two Purchaser Designees who are “independent directors” to resign within ten (10) business days, the Board of Directors shall be reduced by one member and thereafter the Purchaser shall be entitled to nominate two members to the Company’s Board of Directors (until such time as the aggregate interest owned by Purchaser shall be less than the Minimum Interest, whereupon Purchaser shall, unless otherwise agreed by a majority of the Board other than the Purchaser Designees, within ten (10) business days cause the remaining two Purchaser Designees to resign and the Purchaser shall have no further rights under this Section 4.1). At least ninety (90) days prior to each annual meeting of stockholders at which Purchaser Designees will stand for election, the Purchaser shall provide written notice to the Company indicating the Purchaser Designees that it will nominate at such annual meeting, and such notice shall set forth as to each person proposed for nomination all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act (including such person’s written consent to being named in the related proxy statement as a nominee and to serving as a director if elected). (b) The Company shall use its reasonable best efforts at all times to take such action as is necessary to ensure that the Governance and Nominating Committee of the Board of Directors (or the full Board if there is no such committee) of the Company shall nominate and recommend to the stockholders of the Company that the stockholders of the Company shall elect the Purchaser Designees to the Board of Directors. As a condition precedent to the inclusion of any Purchaser Designee on any slate of nominees to be recommended to stockholders by the Board of Directors pursuant to Section 4.1(a), the Governance and Nominating Committee of the Board (or the full Board if there is no such committee) may review the information provided pursuant to Section 4.1(a) to evaluate in good faith such Purchaser Designee’s character and fitness to serve as a director. If the Governance and Nominating Committee of the Board (or the full Board if there is no such committee) determines in good faith that any such Purchaser Designee lacks the character or fitness to serve as a director based on applicable legal and reasonable commercial standards, the Governance and Nominating Committee of the Board (or the full Board if there is no such committee) shall inform the Purchaser of such determination, and the Purchaser shall then have the right to propose alternative Purchaser Designees in accordance with Section 4.1(a) above reasonably acceptable to the Company. All Purchaser Designees elected to the Board pursuant of Directors shall receive, during the period in which they serve, any and all benefits provided to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor other non-executive members of the election Board of Directors of the Company. (c) Xx. Xxxxxx XxXxxxx shall have the right to invite representatives of the Purchaser Designeeto attend, but not vote, as observers at the open portion of each meeting of the Board of Directors, including telephonic meetings, provided that each such representative has executed and delivered to the Company a confidentiality agreement in a form reasonably satisfactory to the Company. (d) The Board shall establish a new Strategic Committee consisting of the following five (5) directors so long as they remain members of the Board: Xx. Xxxxxx XxXxxxx as Chair of the Committee, Xx. Xxxxx Xxxxxx, the Company’s Chief Executive Officer serving ex-officio, and two other directors recommended by Xx. Xxxxxx XxXxxxx, only one of whom may be a Purchaser Designee. The Board shall adopt a charter in substantially the form of Exhibit E hereto (the “Strategic Committee Charter”), which shall serve as the directive of the Strategic Committee. The Strategic Committee Charter shall not be amended without the approval of the Chair of the Strategic Committee, which approval shall not be unreasonably withheld. The Strategic Committee may, and it is anticipated that the Strategic Committee will, retain consultants and other service providers, including affiliates of the Purchaser, to provide support to the Strategic Committee and to management, on terms and conditions that are approved by a majority of the disinterested members of the Board of Directors. (e) Subject to availability on reasonable terms and at a reasonable cost, for so long as any Purchaser Designee remains on the Board of Directors, the Company shall maintain directors’ and officers’ liability insurance with an insurer which maintains a rating of not less than A- by Fitch or A.M. Best with at least the current level of coverage and, in addition, shall consult in good faith with Purchaser with respect to (i) the renewal of existing policies and (ii) side A excess terms and conditions coverage in an amount reasonably satisfactory to Purchaser. (f) Xx. Xxxxxx XxXxxxx and each Purchaser Designee shall be entitled required to an indemnification agreement in comply with the form attached hereto same policies and restrictions as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) each of the other members of the Board concludes in good faith, upon advice of including but not limited to the Company’s counselGovernance Policy, Xxxxxxx Xxxxxxx Policy and Code of Ethics and Standards of Conduct. (g) Notwithstanding anything herein to the contrary, the responsibility and authority of the Board shall not be altered as a result of the transactions contemplated by this Agreement and the Board shall continue to act in accordance with the Company’s certificate of incorporation, bylaws, the Company’s Governance Policy and the various committee charters. The current Board members shall remain in office, though it is anticipated that such exclusion is reasonably necessary the size of the Board may be reduced to preserve ten through attrition, as determined by the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members Board. The current Chairman of the Board, independent auditors and/or legal counselXx. Xxxxx X. Berube, shall remain a director and, in accordance with Section 4.1(d) above, shall be appointed as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the BoardStrategic Committee. The current Chief Executive Officer, Xx. Xxxxxxx X. Bailey, shall continue in such capacity subject to the terms and conditions of any employment agreement he may have with the Company, shall remain a director and shall serve as an ex-officio member of the Strategic Committee. (h) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which It is understood and agreed that the Company’s securities are then tradedBoard of Directors is subject to fiduciary duties under applicable law, and that the Company’s stockholders have rights with respect to the composition of the Board of Directors under applicable law and the Company’s organizational documents. Accordingly, for purposes of this Section 4.1, all obligations of the Company under paragraphs (a), (b) and (d) hereof shall be deemed to be “to use reasonable best efforts” to cause the intended action to be taken, recognizing that the Company cannot guaranty what action its Board of Directors or stockholders may take in the future. In the event that the Board of Directors of the Company shall not cause any action to be taken under paragraphs (a), (b) and (d) hereof, the Purchaser designates a Board Observer pursuant shall be entitled to clause the following remedies: (i) A full acceleration of the vesting of the Warrants so as to make the Warrants immediately exercisable; and (ii) Upon each failure to comply with the provisions of paragraphs (a), (b) aboveand (d) hereof, to appoint an additional director to the Board of Directors of the Company. Such director shall resign immediately after the default is cured to the Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyreasonable satisfaction.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual For so long as Mxxxxxx Xxxxxxx is a holder of a Note issued hereunder (the “Purchaser DesigneeRepresentation Period”) to be), at Purchaser’s election, either the Nominating and Corporate Governance Committee (a) a non-voting observer (a the “Board ObserverNominating Committee”) of the Company’s board Board shall nominate a Designated Nominee (as defined below) for election to the Board at each meeting of the Company’s stockholders held during the Representation Period at which directors are to be elected, commencing with the Company’s annual meeting of stockholders currently scheduled to be held in June 2013 (the “Board2013 Annual Meeting”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board), and to receive all information provided the Board shall recommend to the members stockholders that such Designated Nominee be so elected at such meeting (collectively, the “Nomination Obligations”). The Board shall take all such actions necessary during the Representation Period to ensure that the size of the Board during is large enough to accommodate the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted Designated Nominee’s election to the Board or any as a director of its committees nor to offer any motions or resolutions the Company. The Nomination Obligations are subject to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof iffollowing conditions: (i) the Board concludes in good faith, upon advice Designated Nominee’s satisfaction of all legal and governance requirements regarding the CompanyDesignated Nominee’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between service as a director of the Company and such counsel; or (ii) the fiduciary duties imposed on the directors of the Company by the Nomination Obligations. “Designated Nominee” means a person designated by Mxxxxxx Xxxxxxx (x) who is able to satisfy all such portion legal and governance requirements and (y) the nomination and recommendation of a meeting is an executive session limited solely to independent director members of whom would not cause the Nominating Committee or the Board, independent auditors and/or legal counselrespectively, as to breach such fiduciary duty (collectively, the Board “Director Qualifications”). Notwithstanding the foregoing, if (1) the timing of the Closing at which Mxxxxxx Xxxxxxx first purchases a Note makes it impracticable for the Company to prepare and file with the SEC, on or before April 30, 2013, a definitive proxy statement containing the information regarding the Designated Nominee that is required to be disclosed therein pursuant to the SEC’s Schedule 14A or (2) the Designated Nominee fails to timely provide the Company with all information needed to prepare and file such definitive proxy statement by April 30, 2013 that it may designatereasonably request from the Designated Nominee, then, subject to Director Nominee’s satisfaction of the Director Qualifications, (A) the Nominating Committee shall recommend for election, and the Board Observer (assuming shall elect, the Designated Nominee to the Board Observer were a member as soon as is reasonably practicable following the 2013 Annual Meeting to serve until the next annual meeting of stockholders at which directors are elected and until his or her successor is duly elected and qualifies and (B) the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or Nomination Obligations shall commence with such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companynext annual meeting.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”i) For so long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more of the Company’s board Total Voting Power of the Corporation, subject to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled presented to attend meetings of the Board, and to receive all information provided stockholders for election to the members Board of Directors to consist of such nominees that, if elected, would result in the Board during the period in which such person is a Board Observerof Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors); provided, however, that in the Board Observer event the Total Voting Power of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not be entitled Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to vote on cause any matter submitted slate of directors presented to stockholders for election to the Board or any of its committees nor Directors to offer any motions or resolutions to consist of such nominees that, if elected, would result in the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyincluding at least six Independent Directors).

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right See Section 13 of this Offer to Purchase entitled “The Transaction Documents.” Engility is entitled to designate one individual at least a majority of the directors of DRC following the consummation of the Offer. It is currently anticipated that Engility will designate Xxxx Xxxxxxxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxxx X. Xxxx, Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxxxx to serve as directors of DRC following the consummation of the Offer. Purchaser expects that such representation would permit Purchaser to exert substantial influence over DRC’s conduct of its business and operations, however, pending the consummation of the Merger, Engility intends to keep DRC as an independent subsidiary under its own management. Short-form Merger. Under the MBCA, if Purchaser acquires, pursuant to the Offer, at least ninety percent (90%) of the outstanding Shares (the “Short Form Threshold”), Purchaser Designee”) will be able to beapprove the Merger without a vote of the DRC Board or shareholders. In such event, Engility and Purchaser anticipate that they will take all necessary and appropriate action to cause the Merger to become effective as soon as reasonably practicable after such acquisition, without adoption by the DRC Board or the approval of DRC’s shareholders. However, if Purchaser does not acquire at Purchaser’s election, either least ninety percent (a) a non-voting observer (a “Board Observer”90%) of the Company’s board of directors outstanding Shares pursuant to the Offer or otherwise (including through the “Board”) or (b) elected as a member exercise of the BoardTop-Up Option) and an approving vote of DRC’s shareholders is required under the MBCA, a significantly longer period of time would be required to effect the Merger. Any Board Observer shall be entitled Provided that Purchaser has acquired and paid for the Shares tendered pursuant to attend meetings the Offer and following the expiration of any subsequent offering period provided pursuant to the Merger Agreement, DRC has agreed to establish a record date for, call, give notice of, convene and hold a meeting of its shareholders as promptly as reasonably practicable following consummation of the BoardOffer to consider and vote on the Merger, if a shareholders’ vote is required. Rule 13e-3. The SEC has adopted Rule 13e-3 under the Exchange Act, which is applicable to certain “going private” transactions and to receive all information provided under certain circumstances may be applicable to the members Merger or another business Table of Contents combination following the purchase of Shares pursuant to the Offer or otherwise in which Purchaser seeks to acquire the remaining Shares not held by it. Xxxxxxxxx believes, however, that Rule 13e-3 will not be applicable to the Merger if the Merger is consummated within one year after the Expiration Date at the same per Share price as paid in the Offer. If applicable, Rule 13e-3 requires, among other things, that certain financial information concerning DRC and certain information relating to the fairness of the Board proposed transaction and the consideration offered to minority shareholders in such transaction be filed with the SEC and disclosed to shareholders prior to consummation of the transaction. Plans for DRC. It is expected that, initially following the Merger, the business and operations of DRC will, except as set forth in this Offer to Purchase, be continued substantially as they are currently being conducted and that Engility will eventually integrate the business and operations of DRC into Engility’s business. Notwithstanding the foregoing, Engility will continue to evaluate the business and operations of DRC during the period pendency of the Offer and after the consummation of the Offer and the Merger and will take all relevant actions as it deems appropriate under the circumstances then existing. Engility intends to review all relevant information as part of a comprehensive review of DRC’s business, operations, capitalization and management with a view to optimizing DRC’s potential within Engility. Extraordinary Corporate Transactions. Except as described above or elsewhere in which such person is a Board Observer; providedthis Offer to Purchase, Engility and Purchaser have no present plans or proposals that the Board Observer shall not be entitled would relate to vote on any matter submitted to the Board or result in an extraordinary corporate transaction involving DRC or any of its committees nor to offer subsidiaries (such as a merger, reorganization, liquidation, relocation of any motions operations or resolutions to the Board sale or such committees. In the event other transfer of the Purchaser Designeea material amount of assets), any change in DRC’s deathmanagement, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material change in DRC’s capitalization or meeting dividend policy or portion thereof if: (i) the Board concludes any other material change in good faith, upon advice of the CompanyDRC’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; corporate structure or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companybusiness.

Board Representation. Effective upon (a) From the IPO Closingdate of this Agreement, the Purchaser Company and, after the Effective Time, the Surviving Corporation, shall have take all Necessary Actions such that: (i) Immediately following the right to designate one individual Effective Time, the Sponsor Designee shall serve as a Class III director of the Company and a director of the Surviving Corporation for a term expiring at the third annual meeting of stockholders of the Company following the Effective Time (the “Purchaser DesigneeFirst Term”); provided that if the Charter shall have been amended to remove the classification of the Board, the Company shall take all Necessary Actions such that the Sponsor Designee shall serve as a director of the Company until the end of the First Term. (ii) So long as the Sponsor and its Permitted Transferees collectively hold at least 50% of the Sponsor Shares, the Sponsor Designee shall be re-nominated for election as a Class III director of the Company at the third annual meeting of stockholders of the Company following the Effective Time and shall serve as a Class III director of the Company and a director of the Surviving Corporation for a term expiring at the sixth annual meeting of stockholders of the Company following the Effective Time (the “Second Term”); provided, that if the Sponsor Designee is not elected to be, at Purchaser’s election, either (a) serve as a non-voting observer (a “Board Observer”) Class III director of the Company’s board , the Company shall take all Necessary Actions to appoint the Sponsor Designee as a Class III director of directors (the “Company, including increasing the size of the Board and appointing the Sponsor Designee to fill the vacancy created by such increase; provided, further, that if the Charter shall have been amended to remove the classification of the Board”) or , the Company shall take all Necessary Actions such that the Sponsor Designee shall serve as a director of the Company until the end of the Second Term. (b) elected as a member The Company agrees not to take, directly or indirectly, any actions that would frustrate, obstruct or otherwise affect the provisions of this Section 7. (c) The Company agrees that any director serving on the Board. Any Board Observer pursuant to this Section 7 shall be entitled to attend meetings of the Board, same rights and privileges applicable to receive all information provided to the other members of the Board during generally or to which all such members of the period in which Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of such person is a director and provide such director with directors’ and officers’ liability insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board Observerpursuant to the Charter, the Bylaws or other organizational documents of the Company, any indemnification agreement with such director, applicable Law or otherwise; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability upon removal or resignation of such director for any reason, the Company shall take all actions reasonable necessary to extend such directors’ and officers’ liability insurance coverage for a period of not less than six (6) years from the Board any such event in respect of any act or omission occurring at or prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyevent.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) As of the Company’s board Second Closing Date and until the earlier to occur of directors the sixth anniversary of the Second Closing Date and the date on which Shareholders own, collectively, less than 20% of the Shares (the “Board”"Shareholder Designee Period"), the Board of Directors shall consist of no more than twelve (12) or (b) elected directors; provided, however, that if Mr. X'Xxxxx xxxses to serve as a member director, the Board of Directors shall thereafter consist of no more than eleven (11) directors during the BoardShareholder Designee Period. Any Board Observer For so long as Shareholders are entitled to at least two Shareholder Designees under this Agreement, Shareholders shall be entitled to attend meetings of the Board, and to receive all information provided to the members have one Shareholder Designee serve on each committee of the Board during of Directors other than any committee formed for the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted purpose of considering matters relating to the Board or any of its committees nor to offer any motions or resolutions Shareholders and as set forth below with respect to the Board or such committees. In Nominating Committee. (b) On the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination ClosingSecond Closing Date, the Purchaser shall have the right Company will cause Davix Xxxxxx xxx one additional person as designated by Shareholders or, subject to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee Section 3.1(d), such other substitute persons as may be designated by Shareholders, to be elected to the Board pursuant to clause (b) aboveof Directors. At all times during the Shareholder Designee Period, the Sponsor hereby agrees Company agrees, subject to vote all of its shares in Section 3.1(d), to support the Company in favor of the election of the Purchaser Designeenomination of, and the Purchaser Company's Nominating Committee (as defined herein) shall recommend to the Board of Directors the inclusion in the slate of nominees recommended by the Board of Directors to shareholders for election as directors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one or more persons to serve as Unaffiliated Directors (except with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Shareholders beneficially own less than 50% of the Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not be further amended by the Board of Directors during the Shareholder Designee Period. (c) Upon any decrease in Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or Voting Securities below the Actual Voting Power Threshold, Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be equal to the number of Shareholder Designees which Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, Shareholders shall promptly offer to cause all of the Shareholder Designees to resign from the Board of Directors and any committees thereof and the Company's obligations under this Section 3.1 shall terminate. (d) Notwithstanding the provisions of this Section 3.1, Shareholder shall not be entitled to designate any person to the Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to serve as a director of the Company or if the Company objects to a Shareholder Designee because such Shareholder Designee has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D or such person is currently the target of an investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, decree, or judgment of any court or agency prohibiting service as a director of any public company or providing investment or (e) Each Shareholder Designee serving on the Board of Directors shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access all compensation and stock incentives granted to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice directors who are not employees of the Company’s counsel, that Company on the same terms provided to such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companydirectors.

Board Representation. Effective upon (a) At the IPO Closing, the Purchaser Company shall appoint two Directors designated by the Investor Shareholders for election by the Board and obtain resignations from two of the Directors that are not Independent Directors serving on the Board such that the Board shall consist initially of seven Directors. During the Term of this Agreement, (i) the Investor Shareholders, acting as a group (by majority vote based on number of shares of Common Stock held), shall have the right to designate one individual nominate for election to the Board two Directors to the Board for so long as the Investor Shareholder Group collectively owns of record a number of shares of Common Stock equal to at least 10% of the then outstanding Common Stock (the “Purchaser Designee”"INVESTOR DIRECTORS"), (ii) the Existing Shareholders, acting as a group (by majority vote based on number of shares of Common Stock held), shall have the right to nominate for election to the Board two Directors to the Board for so long as the Existing Shareholder Group collectively owns of record a number OF shares of Common Stock equal to at least 10% of the then outstanding Common Stock (the "EXISTING SHAREHOLDER DIRECTORS") and (iii) the Investor Directors and the Existing Shareholder Directors shall jointly nominate three Independent Directors. In addition, in the event that the Board (including at least one Investor Director and one Existing Shareholder Director) determines to increase the number of directors above seven, such additional directors shall be Independent Directors and shall be jointly nominated by the Investor Directors and the Existing Shareholder Directors. Any nomination for the replacement of (x) a Investor Director prior to the expiration of his or her respective term shall be made by the remaining Investor Director or, if no Investor Directors remain, by the Investor Shareholders, (y) an Existing Shareholder Director prior to the expiration of his or her respective term shall be made by the remaining Existing Shareholder Director or, if no Existing Shareholder Directors remain, by the Existing Shareholders or (z) an Independent Director prior to the expiration of his or her respective term shall be made jointly by the Investor Directors and the Existing Shareholder Directors; provided, however, that the current independent Directors shall be entitled to serve through the earlier to occur of their resignation or the expiration of their respective current terms and; provided, further that to the extent that the Board or any member thereof reasonably believes that it would be contrary to his, her or its fiduciary duties to the Company and its shareholders to nominate any Investor Director or Existing Shareholder Director to the Board or any Committee thereof, the Board, or any member thereof, may refuse to make such nomination and such refusal shall not be deemed a breach of this Agreement. (b) Subject to Section 2.1(a), the Company, the Investor Shareholders and the Existing Shareholders at all times shall take such action as may be reasonably required under applicable law to cause the Investor Shareholders' designee(s) and the Existing Shareholders' designee(s) to bebe elected to the Board. Furthermore, at Purchaser’s electionthe Company hereby agrees, either subject to SECTION 2.1(A), to (ai) a non-voting observer include each of the Director designees of the Investor Shareholders and the Existing Shareholders (a “Board Observer”) which are up for election in accordance with the Bylaws of the Company’s board ) on each slate of directors nominees for election to the Board proposed by the Company and/or the Board (or any Committee thereof), (ii) recommend the “election of the Director designees of the Investor Shareholders and the Existing Shareholders (which are up for election in accordance with the Bylaws of the Company) to the shareholders of the Company, and (iii) without limiting the foregoing, to otherwise use commercially reasonable efforts to cause the Director designees of the Investor Shareholders and the Existing Shareholders (which are up for election in accordance with the Bylaws of the Company) to be elected to the Board”. (c) or (b) elected During the Term of this Agreement, one of the two Investor Directors shall be appointed as a member of the Board. Any Compensation Committee of the Board Observer and one of the Investor Directors shall have the right to attend all Audit Committee meetings; PROVIDED, HOWEVER, that in the event that the Company is listed on The Nasdaq Stock Market (or such other national securities exchange on which the Common Stock is then listed or quoted for trading), then each Investor Director shall be entitled qualified under the rules and regulations of the SEC and the Nasdaq Stock Market (or such other national securities exchange on which the Common Stock is then listed or quoted for trading) and the Company's guidelines (applied on a reasonable and uniform basis consistent with past practice) as in effect from time to attend meetings time to serve as a member of the Compensation Committee. (d) During the Term of this Agreement, none of the following actions shall take place without the consent of at least one of the Investor Directors: (i) the issuance, redemption or purchase of equity or debt of the Company (including the issuance of warrants and/or the expansion of the Company's current stock option plan), excluding (x) issuances of equity or debt securities and the incurrence of debt in connection with Permitted Acquisitions (defined below), (y) the incurrence of debt in connection with inventory, equipment or lease financing in the ordinary course of business in any fiscal year in an amount not to exceed 5% of the Company's gross revenue calculated in accordance with GAAP, consistently applied (as set forth in financial statements filed with the SEC) for the prior fiscal year together with all then outstanding inventory, equipment or lease financings, and (z) debt incurred under lines of credit or revolving credit facilities or any renewals, extensions, substitutions, refundings, refinancings or replacements of such indebtedness in an amount not to exceed the greater of the amount outstanding on the date hereof and 5% of the Company's gross revenue calculated in accordance with GAAP, consistently applied (as set forth in financial statements filed with the SEC) for the prior fiscal year. (ii) the issuance of any omnibus stock plan which would permit the issuance to employees, officers or directors of the Company of options for Company stock; provided however, that such consent shall not be required for the approval of an omnibus stock plan of up to 18% of the number of shares of Common Stock outstanding on the Closing Date (after giving effect to the issuance of Common Stock pursuant to the Purchase Agreements), so long as such plan provides that (i) no more than 20% of the shares of Common Stock available for grant under such plan shall be granted in any one calendar year, (ii) no more than 3.5% of the shares of Common Stock available for grant under such plan shall be granted to any one individual in any one calendar year, and (iii) no more than 50% of the shares of Common Stock granted under such plan in any given year shall be granted to the officers and directors of the Company or any of their respective Affiliates (excluding officers and directors of the Company who derive at least 50% of their cash compensation from the Company as sales commission). (As of the date hereof, the persons set forth on Schedule III derive at least 50% of their cash compensation from the Company as sales commission); or (iii) the creation of any new class of securities; or (iv) any Affiliate Transaction, other than Affiliate Transactions entered into prior to the date hereof and set forth on the Disclosure Schedules to the Investor Purchase Agreement on the terms in effect on the date hereof (including the repayment of debt in accordance with its terms in effect on the date hereof or accrued compensation as of the date hereof owed to Affiliates); or (v) changes to the certificate of incorporation or bylaws of the Company or the formation of new committees; or (vi) the entering into a merger, reorganization or sale of the Company or any of it Subsidiaries or the disposal of any significant portion of their respective assets, or the acquiring of any significant business or assets from another Person (whether by merger, asset or stock purchase or otherwise), other than mergers, acquisitions or other business combinations involving the acquisition of a business offering the same or complimentary services or products to those offered by the Company, provided that the aggregate purchase price for all such businesses in any 12-month period does not exceed 5% of the Company's gross revenue (calculated in accordance with GAAP, consistently applied, (as set forth in financial statements filed with the SEC) for the prior fiscal year ("Permitted Acquisitions"); or (vii) material changes to the business lines of the Company as in effect on the date hereof. (e) During the Term of this Agreement, (i) the Investor Shareholders agree to vote all shares of Common Stock then owned by such Investor Shareholder so as to elect to the Board the Investor Directors, the Existing Shareholder Directors and the Independent Directors during the Term of this Agreement pursuant to SECTION 2.1(A) hereof and (ii) each Existing Shareholder agrees to vote all shares of Common Stock then owned by such Existing Shareholder so as to elect to the Board the Existing Shareholder Directors, the Investor Directors and the Independent Directors during the Term of this Agreement pursuant to SECTION 2.1(A) hereof. In the event that the Board, and acting in good faith in the exercise of its fiduciary duty, determines not to receive all information provided recommend to the Company's stockholders to elect as a director a designee of the Investor Shareholders or a designee of the Existing Shareholders, if the Investor Shareholders or the Existing Shareholders determine to solicit proxies from the Company's stockholders to vote for such nominee, the Company shall reimburse the Investor Shareholders Group or the Existing Shareholder Group, as the case may be, for their reasonable cost incurred in connection with the solicitation of such proxies. (f) If one or more Investor Directors serve as members of the Board during at a time when the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall Investor Shareholders no longer have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates Director, promptly following a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of written request by a meeting is an executive session limited solely to independent director members majority of the Board, independent auditors and/or legal counselthe Investor Shareholders shall immediately cause the Investor Director(s) to resign, as so requested. (g) If one or more Existing Shareholder Directors serve as members of the Board may designateat a time when the Existing Shareholders no longer have the right to designate a Director, and the Board Observer (assuming the Board Observer were promptly following a member written request by a majority of the Board, the Existing Shareholders shall immediately cause the Existing Shareholder Director(s) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Marketto resign, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyas so requested.

Board Representation. Effective upon Each Stockholder shall vote all of the IPO ClosingCommon Stock Equivalents over which such person has voting control (the "Voting Securities") and shall take all other necessary and desirable actions within his or its control (whether in his capacity as a stockholder, director, member of a board committee or officer of the Purchaser Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purpose of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary or desirable actions within its control (including, without limitation, nominating candidates for election, calling special board and stockholder meetings) so that: (a) the following persons shall be elected to the Board at each election of directors: (i) prior to the Company's Initial Public Offering for so long as Warburg and its Affiliates (the "Warburg Entities") together continue to own a majority of the Company's outstanding Series A Preferred Stock (appropriately adjusted for any stock splits, consolidations and the like) and (ii) following the Company's Initial Public Offering for so long as the Warburg Entities hold at least 5% of the oustanding Common Stock of the Company: (i) two candidates designated by the Warburg Entities provided, however, that the Warburg Entities shall have the right to designate only one individual (candidate if the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board number of directors (comprising the “Board”) or Board of Directors is set at less than four. (b) elected as a member of the Board. Any Board Observer following persons shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, at each election of directors from and after the Sponsor hereby agrees to vote all of its shares in date hereof and until the Company in favor closing of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: Company's Initial Public Offering: (i) Two candidates designated by the Board concludes in good faith, upon advice Existing Stockholders. (ii) For so long as the Warburg Entities together continue to hold a majority of the Company’s counsel's outstanding Series A Preferred Stock (appropriately adjusted for any stock splits, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, consolidations and the Board Observer (assuming like), two candidates who are satisfactory to the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to Warburg Entities and the Company. (c) In the case of any vacancy in the office of a director elected pursuant to this Section 8, a successor shall be elected to hold office for the unexpired term of such director by the affirmative vote of the holders of the shares entitled to vote for such director pursuant to this Section 8, voting at a special meeting of such stockholders duly called for that purpose or by the majority written consent of such shareholders. (d) The Company agrees to provide to each member of its Board of Directors and to each individual having contractual observer rights on the Board of Directors, in each case together with the investor with which such member or observer is affiliated, customary indemnification for liabilities to which such parties and affiliates may be subject by virtue of their status as a director or alleged controlling person of the Company.

Board Representation. Effective Subject to applicable law in each instance: -------------------- (a) Upon the closing of the Public Financing, BBS shall immediately expand the size of the Board of Directors to nine directors and appoint to the Board of Directors (subject to the majority vote of the remaining directors, which BBS shall solicit and use its best efforts to obtain, in accordance with BBS' by-laws), to fill the vacancy, one individual designated by Enterprises to serve on the Board of Directors. The director designated by Enterprises shall, upon his/her appointment, continue to serve as a director until the IPO Closingnext election of directors. (b) As long as Enterprises continues to own a number of shares of Common Stock (adjusted for stock splits and similar occurrences) that is greater than fifty percent (50%) of the aggregate of the number of Upfront Shares plus the number of shares of Common Stock purchased by Enterprises (from time-to-time) upon exercises of the Warrants, Enterprises shall be entitled to designate one individual to be nominated to the Board of Directors by BBS. Any individual so designated by Enterprises pursuant to this Section 2.7(b) is referred to herein as the "Designee." (c) During the period provided in Section 2.7(b) above, BBS shall nominate the Designee for election as a director as part of the management slate that is included in the proxy statement (or consent solicitation or similar document) of BBS relating to the election of directors, and shall provide the same support for the election of each such Designee as it provides to other persons standing for election as directors of BBS as part of BBS' management slate. (d) In the event that any Designee shall cease to serve as a director for any reason (other than the failure of the stockholders of BBS to elect such person as director), the Purchaser vacancy resulting therefrom shall be filled by (subject to the majority vote of the remaining directors, which BBS shall solicit and use its best efforts to obtain, in accordance with BBS' by-laws) an individual designated by Enterprises in accordance with Section 2.7(b) above. (e) BBS will reimburse each Designee that serves as a director for all reasonable costs and expenses (including travel expenses) incurred in connection with such director's attendance at meetings of the Board of Directors or any committee of the Board of Directors upon which such director serves, in accordance with BBS' policies regarding reimbursement of director expenses. BBS shall indemnify and advance expenses to each such director to the same extent it indemnifies and advances expenses to its other directors pursuant to its organizational documents and applicable law. (f) In each instance, the individual designated by Enterprises as its Designee (and the individual initially designated by Enterprises under Section 2.7(a) above) shall be an executive officer of Enterprises. (g) Following the Public Financing and through the period described in Section 2.7(b), Enterprises shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) have its designee participate in all meetings of the Company’s board Board of directors Directors of BBS in an advisory capacity ("Advisory Designee"). The provisions of Section 2.7(f) shall apply with respect to the “Board”selection of such Advisory Designee and the provisions of Section 2.7(e) above with regard to reimbursement of expenses shall also apply to such Advisory Designee. Notwithstanding the foregoing, however (i) Enterprises rights under this Section 2.7(g) shall not apply at any time during which an individual designated by Enterprises (under Section 2.7(a) above or (b) elected as a Designee, as applicable) is a duly appointed/elected member of the Board. Any Board Observer shall be entitled of Directors of BBS and (ii) it is understood by the Parties that the provisions of this Section 2.7(g) are intended to attend provide a "back-up" mechanism to ensure that Enterprise will have the ability to have a designee participate in meetings of the BoardBoard of Directors of BBS in the event that, and to receive all information provided to despite the members best efforts of BBS, the Parties are unsuccessful in having a designee of the Enterprises appointed to Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event Directors of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyBBS.

Board Representation. Effective upon (a) Pursuant to the IPO ClosingAcquisition Agreement and in accordance with the terms thereof, the Purchaser Stockholder has designated one Director (the “Stockholder Designee”) to serve on the Board until the next meeting of stockholders of the Company at which directors are elected. Thereafter, the Stockholder shall have the right to designate one individual (the “Purchaser Designee”) to beStockholder Designee or a successor thereto and, at Purchaser’s electionas long as such Stockholder Designee satisfies the requirements of Section 3.1(b), either (a) a non-voting observer (a “Board Observer”) the governance guidelines of the Company’s board , as in effect from time to time and is otherwise reasonably acceptable to the Board and the Corporate Governance and Nominating Committee of directors the Board (including any successor committee, the “BoardNominating Committee”), the Company shall use its reasonable best efforts to cause the Stockholder Designee to be included in the slate of Directors approved by the Board for election at each meeting of stockholders of the Company at which directors are elected; provided, however, that if for any period greater than 30 consecutive days the Stockholder shall Beneficially Own Voting Securities representing less than the applicable Ownership Threshold, the Stockholder shall promptly cause the Stockholder Designee to resign and the contractual right of the Stockholder to designate a Director pursuant to this Section 3.1(a) or otherwise shall terminate. (b) elected as a member The Stockholder Designee shall, in the reasonable judgment of the Board. Any Board Observer shall be entitled to attend meetings of Nominating Committee and the Board, (i) have the requisite skill and experience to receive all information provided to the members serve as a director of a publicly traded company, (ii) not be prohibited or disqualified from serving as a director of the Board during pursuant to any rule or regulation of the period SEC or NYSE or by applicable law, and (iii) satisfy the governance guidelines of the Company, as in which effect from time to time, and the Organizational Documents of the Company and otherwise satisfy the qualification standards to serve as a Director set forth in the Company’s Corporate Governance Guidelines, as they may be amended from time to time. The Stockholder shall, and shall cause the Stockholder Designee to, timely provide the Company with accurate and complete information relating to the Stockholder and the Stockholder Designee that may be required to be disclosed by the Company under the Securities Act or the Exchange Act, including such person is information required to be furnished by the Company with respect to the Stockholder Designee in a Board Observer; providedproxy statement pursuant to Rule 14a-101 promulgated under the Exchange Act. In addition, that at the Board Observer Company’s request, the Stockholder shall not be entitled cause the Stockholder Designee to vote on any matter submitted complete and execute the Company’s director and officer questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by the Company. (c) Not less than 120 days prior to each meeting of stockholders of the Company at which directors are to be elected (assuming for these purposes that each annual meeting shall be held on the anniversary of the prior year’s annual meeting), the Stockholder shall provide the Company with written notice of the name of the Stockholder Designee to be nominated for election at such meeting. If it is determined that a Stockholder Designee does not satisfy the requirements of Section 3.1(a) and 3.1(b), or if such Stockholder Designee is not available or eligible to stand for election, then the Stockholder may attempt to name an acceptable and available replacement designee and any such designee satisfying the requirements set forth herein will be included as a nominee for election at such meeting if written notice of its committees nor to offer any motions or resolutions the name of such Stockholder Designee is provided to the Board or such committees. In the event Company within a reasonable period of the Purchaser Designee’s death, disability or resignation from the Board time prior to the Business Combination mailing of the proxy statement for such meeting. (d) Following the Closing, upon the Purchaser resignation, retirement or other removal from office of the Stockholder Designee, (i) the Stockholder shall have the right be entitled promptly to designate a replacement Purchaser Designee. In Stockholder Designee who satisfies the event requirements of Section 3.1(a) and Section 3.1(b) and (ii) the Purchaser designates Company shall use its reasonable best efforts to cause the appointment or election of such replacement designee as a Purchaser Director; provided that this Section 3.1 (d) shall not require the Company to cause the appointment to the Board of a Stockholder Designee to replace a Stockholder Designee who has resigned from the Board following the failure of such Stockholder Designee to be elected to the Board pursuant to clause (b) above, by the Sponsor hereby agrees to requisite vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice stockholders of the Company’s counsel. If such Stockholder Designee is not appointed, that such exclusion is reasonably necessary to preserve at the attorney-client privilege between request of the Stockholder, the Company and such counsel; or (ii) such portion will discuss with the Stockholder the appointment of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyalternative Stockholder Designee.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either Arch hereby covenants that: (a) on or prior to -------------------- the Effective Date, Arch will cause a non-voting observer vacancy to be created on its Board of Directors (a “by increasing the number of members of such Board Observer”or otherwise) of and effective no later than the Company’s board of directors Effective Date will cause one person designated by the Standby Purchaser (the “Board”) "Designee"), which person shall be reasonably acceptable to the Board of Directors of Arch and shall not be a director or employee of any entity that competes with Arch in the paging industry (excluding for this purpose the Personal Communications Services business), to be elected or appointed to such Board with an initial term expiring at Arch's Annual Meeting of Stockholders to be held in the year 1999; (b) elected so long as the Standby Purchaser beneficially owns (as a member result of its discretionary control of accounts, management discretion over investment funds or otherwise, directly or through its affiliates) capital stock of Arch representing at least (x) with respect to Arch's Annual Meeting of Stockholders to be held in the year 2002 and meetings of Arch's stockholders held prior thereto, 5.0% and (y) with respect to meetings of Arch's stockholders held thereafter 10.0%, of the Board. Any outstanding voting power, Arch will (i) nominate and recommend the Designee (or another person designated by the Standby Purchaser as the Designee's successor) for election at any meeting of Arch's stockholders at which the term of the Designee or any successor thereto would otherwise expire and (ii) fill any vacancy on Arch's Board Observer shall be entitled of Directors created by the death, resignation or removal of the Designee or any successor thereto with another person designated by the Standby Purchaser as the Designee's successor; and (c) so long as the Designee or any successor thereto remains on Arch's Board of Directors, Arch will permit one additional person designated by the Standby Purchaser (the "Observer") to attend all meetings of the Board, such Board as an observer and to receive copies of all information provided documents and other materials made available to the members of the Board during the period in which such person is a Board Observer; provided, Board. The Standby Purchaser hereby acknowledges that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall Observer will be entitled required to an indemnification agreement execute and deliver to Arch confidentiality agreements in the form attached hereto as Exhibit D. executed by the existing members of Arch's Board of Directors. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice commitment of the Company’s counsel, Standby Purchaser hereunder is subject to the additional condition that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to Arch shall have performed its covenant set forth in clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to of the Companyfirst sentence of this Section 16.

Board Representation. Effective upon (a) (i) On or prior to the IPO ClosingClosing Date, the Purchaser shall have Nominating and Governance Committee of the right to designate one individual Board (the “Purchaser Nominating Committee”), in accordance with the Nominating Committee’s Charter and the Company’s Organizational Documents, shall (A) increase the size of the Board from eight (8) to nine (9) Directors and (B) appoint the Stockholder or one other individual designated by the Stockholder to serve on the Board (the “First Stockholder Designee”) and it is hereby agreed that, notwithstanding anything to bethe contrary contained herein, at Purchaserthe Stockholder satisfies the applicable requirements set forth in Section 3.1(b); provided, however, that if the Stockholder is not the First Stockholder Designee, the First Stockholder Designee shall satisfy the applicable requirements set forth in Section 3.1(b); provided, further, that if a First Stockholder Designee Board Right Termination Event occurs, the Stockholder shall promptly cause the First Stockholder Designee, if any, then serving on the Board to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which such First Stockholder Designee is then appointed or on which he or she is then serving, and the right of the Stockholder to designate such First Stockholder Designee shall terminate. In the event that the Nominating Committee shall determine in its good faith reasonable judgment that the First Stockholder Designee does not satisfy the applicable requirements set forth in Section 3.1(b)(iv), then the Nominating Committee shall provide the Stockholder with a written explanation of the basis for such decision. For the avoidance of doubt, if the individual designated by the Stockholder to serve on the Board as the First Stockholder Designee does not meet the requirements of Section 3.1(b), then the Stockholder shall be entitled to designate another individual to serve on the Board as the First Stockholder Designee. The First Stockholder Designee shall be appointed as a Class II Director. (ii) At any time during the two (2) year period following the Closing Date, upon the request of the Stockholder to approve a second individual designated by the Stockholder to serve on the Board (the “Second Stockholder Designee”, and together with the First Stockholder Designee, the “Stockholder Designees”), the Nominating Committee, in accordance with the Nominating Committee’s election, either (a) a non-voting observer (a “Board Observer”) of Charter and the Company’s board Organizational Documents and subject to its fiduciary duties, shall reasonably consider such request for a Second Stockholder Designee in good faith and, if the Nominating Committee determines to fulfill such request, the Nominating Committee and the Board shall take such actions as are necessary to appoint such Second Stockholder Designee, including, (A) increasing the size of directors the Board or (B) filling a vacancy on the “Board”Board with the Second Stockholder Designee; provided, however, that such Second Stockholder Designee shall satisfy the applicable requirements set forth in Section 3.1(b); provided, further, that if a Second Stockholder Board Right Termination Event occurs, the Stockholder shall promptly cause the Second Stockholder Designee, if any, then serving on the Board to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which such Second Stockholder Designee is then appointed or on which he or she is then serving, and the right of the Stockholder to designate such Second Stockholder Designee shall terminate. For the avoidance of doubt the Nominating Committee and the Board shall comply with the request made by the Stockholder pursuant to this Section 3.1(a)(ii) unless they shall determine in good faith that (1) the Second Stockholder Designee does not satisfy the applicable requirements set forth in Section 3.1(b) or (b2) elected complying with such request shall cause the Nominating Committee and the Board to breach their respective fiduciary duties, provided, however, in the case of any such determination the Nominating Committee shall provide the Stockholder with a written explanation of the basis for its decision not to comply with the Stockholders request under this Section 3.1(a)(ii). For the avoidance of doubt, if the individual designated by the Stockholder to serve on the Board as the Second Stockholder Designee does not meet the requirements of Section 3.1(b), then the Stockholder shall be entitled to designate another individual to serve on the Board as the Second Stockholder Designee. The Second Stockholder Designee shall be appointed as a Class I Director. (iii) For the avoidance of doubt, the Company may at any time and from time to time increase or decrease the size of the Board or change its composition; provided that such increase or decrease does not affect the tenure, term or other rights to serve as a member of the Board. Any Board Observer of any Stockholder Designee as set forth in this Agreement. (iv) Upon the request of the Stockholder, the Board and Nominating Committee shall not nominate a Stockholder Designee for re-election to the Board at the next annual meeting of stockholders of the Company at which such Director is up for re-election and, subject to this Section 3.1, the Stockholder shall be entitled to attend meetings appoint another Stockholder Designee to replace such individual. (b) Notwithstanding anything to the contrary set forth in this Agreement, any Stockholder Designee designated by the Stockholder pursuant to Section 3.1 (i) shall not be a person that, at the time of such designation, would be required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D if such Stockholder Designee were the “person filing” such Schedule 13D, (ii) shall not, at the time of such designation, be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the BoardSEC or NYSE or pursuant to applicable Law, and (iii) shall, prior to receive all information provided his or her appointment to the members Board provide an executed resignation letter in substantially the form set forth in Exhibit B hereto resigning from the Board and from any committees or subcommittees thereof to which he or she is then appointed or on which he or she is then serving upon the occurrence of the Board during the period in which Right Termination Event applicable to such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Stockholder Designee, and the Purchaser Designee shall be entitled to an indemnification agreement (iv) shall, in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: good faith reasonable judgment of the Nominating Committee, satisfy the requirements set forth in the Company’s Organizational Documents and Code of Business Conduct and Ethics for Officers, Directors and Employees of the Corporation (ithe “Code of Business Conduct”) included in the Board concludes in good faith, upon advice corporate governance section of the Company’s counselwebsite (as in effect from time to time), that such exclusion is reasonably necessary in each case to preserve the attorneyextent applicable to all non-client privilege between employee Directors generally. Each Stockholder Designee shall, upon appointment or election, as the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely case may be, to independent director members of the Board, independent auditors and/or legal counselabide by the provisions of all codes and policies of the Company that are applicable to all non-employee Directors generally, including, as the Board may designateapplicable, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s Xxxxxxx Xxxxxxx Policy, policies requiring the pre-clearance of all securities trading activity by or on behalf of such Stockholder Designee and the Code of Business Conduct (other than any such code or policy, or portion thereof, if any, that conflicts with the obligations of the Stockholder under this Agreement or would impose any obligation on the Stockholder not expressly set forth in this Agreement). For the avoidance of doubt, the Company shall provide each Stockholder Designee with the same rights to indemnification and exculpation, including, without limitation, indemnification agreements and directors’ and officers’ insurance coverage, as are then traded. In the event the Purchaser designates a Board Observer pursuant available from time to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, time to the Companynon-employee Directors generally.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer Effective on the date hereof, the Board shall be comprised of seven (a “Board Observer”7) Directors of whom: (i) three (3) shall be designees of the Company’s board of directors Investor Stockholders (the “Board”"Investor Representatives"), (ii) one (1) shall be the designee of ITI (the "ITI Representative"), (iii) one (1) shall be the designee of Casty (the "Casty Representative"), (iv) one (1) shall be an Independent Director designated by the Investor Stockholders (the "Investor Independent Representative") and (v) one (1) shall be an Independent Director acceptable to the Investor Stockholders, Casty and ITI (with such consents not to be unreasonably withheld or delayed) (the "Independent Representative"). The initial Investor Representatives shall be Richard Capone, Mark O. Lama and George Duarte, the initial ITI Xxxxxxxxxxxxxe xxxxx xe Shalom, xxx xxxxxxx Xasty Representative shall be Eidelstein, the initial Investor Independent Representative shall be Patrick Delhougne and the initial Independent Representative shall xx Xxxxxx Xxxer. For purposes hereof, each of the three Investor Rxxxxxxxxxxxxes and the Investor Independent Representative shall count as one of the four Preferred Directors (as defined in the Certificates of Designation). (b) elected The Company shall take such action as a member may be required under applicable law (i) to cause the Board to consist of the Boardnumber of Directors specified in clause (a), (ii) to include in the slate of nominees recommended by the Board the Investor Representatives, the ITI Representative, the Casty Representative, the Investor Independent Representative and the Independent Representative (collectively, the "Representatives"), and (iii) to cause the Representatives to be duly appointed in accordance with the foregoing and, in the case of the Investor Representatives, in accordance with the Certificates of Designation. Any Board Observer shall be entitled The Company agrees to attend meetings use its reasonable best efforts to cause the election of the Representatives to the Board, and including nominating such individuals to receive all information be elected as Directors as provided to the members herein. (c) Each of the Board during Investor Stockholders and the period in which such person is a Board Observer; providedStockholders agrees to vote, that the Board Observer shall not be entitled or act by written consent with respect to vote on any matter submitted to the Board Voting Securities beneficially owned by him or any of its committees nor to offer any motions it, at each annual or resolutions to the Board or such committees. In the event special meeting of the Purchaser Designee’s death, disability stockholders of the Company at which Directors are to be elected or resignation from to take all actions by written consent in lieu of any such meeting as are necessary to cause the Board prior to Representatives designated by the Business Combination Closing, others in accordance with the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee terms of this Agreement to be elected to the Board pursuant and agrees to clause use his or its reasonable best efforts to cause the election of each such designee to the Board, including nominating such individuals to be elected as Directors. (bd) aboveIn the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Representative, the Sponsor remaining Directors and the Company shall cause the vacancy created thereby to be filled by a new designee of the party or parties that designated such Director as soon as possible, who is designated in the manner specified in this Section 2.1. Each of the Company, Investor Stockholders and the Stockholders hereby agrees to vote take, at any time and from time to time, all actions necessary to accomplish the same. Upon the written request of its shares in the Company in favor any party who is entitled to designate a Representative, each of the election Investor Stockholders and Stockholders shall vote, or act by written consent with respect to all Voting Securities beneficially owned by him or it and otherwise take or cause to be taken all actions necessary to remove any Director designated by such party. Unless, any party who is entitled to designate a Representative shall otherwise request in writing, none of the Purchaser Designee, and others shall take any action to cause the Purchaser Designee shall be entitled to an indemnification agreement in removal of any Director designated by the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: former. (ie) the Board concludes in good faith, upon advice Each of the Company’s counsel, the Investor Stockholders and the Stockholders agree not to take any action that such exclusion is reasonably necessary would cause the number of Directors constituting the entire Board to preserve be other than the attorney-client privilege between number provided in Section 2.1(a) without the written consent of each other party entitled to designate a Representative. (f) The covenants and agreements set forth herein shall be subject to the fiduciary obligations of the Representatives now or hereafter serving on the Board and shall not prevent the Representatives now or hereafter serving on the Board from taking any action or refraining to take any action while acting in the capacity as a Director of the Company. The foregoing shall not limit the rights or obligations of the Investor Stockholders, ITI and Casty in their capacity as stockholders of the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyhereunder.

Board Representation. Effective upon as of the IPO ClosingFirst Closing Date, the Board of Directors of the Seller will appoint Michxxx X. Xxxx xxx Raymxxx X. Xxxxxxx xx the Board of Directors of the Seller, each to fill an existing vacancy on the Seller's Board of Directors until the next Annual Meeting of the Stockholders of the Seller or until their earlier resignation, retirement, or death. Until the first to occur of (i) the passage of five calendar years after the First Closing Date, (ii) the date (if any) on which the Purchaser and all Persons controlling, controlled by, or under common control with the Purchaser no longer collectively own at least five percent of the outstanding Seller Common Stock, and (iii) the occurrence of a Purchaser Breach (as hereinafter defined) (the "Corporate Governance Period"), the Seller shall nominate two individuals designated by the Purchaser for election to the Seller's Board of Directors; provided, however, that notwithstanding the foregoing, the Purchaser agrees that the Board of Directors of the Seller shall have not be required to so nominate any individual designated by the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”with respect to whom disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Exchange Act that was subject, directly or indirectly, to the disclosure requirements of either Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the Company’s board foregoing, in compliance with Item 401(f) of directors (Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the “Board”) foregoing, or (b) who does not agree in writing to such nomination and to serve as a Director of the Seller if elected as a member such by the stockholders of the BoardSeller. Any Board Observer shall be entitled to attend meetings In addition, during the Corporate Governance Period, the Seller will appoint one designee of the Board, and to receive all information provided Purchaser to the members Advisory Committee to the Seller's Board of the Board during the period in which such person is a Board ObserverDirectors; provided, however, that notwithstanding the foregoing, the Purchaser agrees that the Board Observer Seller shall not be entitled required to vote on so appoint any matter submitted individual designated by the Purchaser with respect to whom, if a Director of the Seller, disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Board Exchange Act that was subject, directly or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwiseindirectly, to the Companydisclosure requirements of either Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing, in compliance with Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing. Notwithstanding any provision of this Agreement to the contrary, however, in the event that neither a Second Closing nor a Third Closing occurs hereunder, then the Seller shall only be required pursuant to this Section 6.2 to nominate one such individual designated by the Purchaser for election to the Seller's Board of Directors for the remainder, if any, of the Corporate Governance Period.

Board Representation. Effective upon (i) On the IPO Closingdate hereof, the Board shall adopt resolutions that (A) increase the number of natural persons that constitute the whole Board by one (1) person and (B) fill the vacancy created by virtue of such increase in the size of the Board with Xxxxx Xxxxxx (the “Initial Appointment”). For the avoidance of doubt, (1) Dynegy acknowledges and agrees that Xxxxx Xxxxxx meets all of the qualifications set forth in Section 9(a)(ii) and has provided all of the requisite information necessary to be admitted to the Board on the date hereof and (2) Xxxxx Xxxxxx shall be considered a Designated Director. (ii) Until a Termination Event, Purchaser shall have the right to designate one nominate an individual for election to the Board, in each case pursuant to the Dynegy Organizational Documents, who must in the reasonable, good faith judgment of the Corporate Governance and Nominating Committee of the Board, (1) have the requisite skill and experience to serve as a director of a publicly traded company, (2) not be prohibited or disqualified from serving as a director of Dynegy pursuant to the Dynegy Bylaws (as in effect as of the date hereof) or any rule or regulation of the Commission, the NYSE (or any other principal stock exchange or market upon which the Common Stock may be listed) or by applicable Law and (3) otherwise be reasonably acceptable to the Corporate Governance and Nominating Committee of the Board (the “Designated Director”). Purchaser Designee”) shall, and shall cause the Designated Director to, timely provide Dynegy with accurate and complete information relating to bePurchaser and the Designated Director that may be required to be disclosed by Dynegy under the Exchange Act. In addition, at PurchaserDynegy’s electionrequest, either Purchaser shall cause the Designated Director to complete and execute Dynegy’s standard director and officer questionnaire and provide such other information as Dynegy may reasonably request prior to being admitted to the Board or standing for reelection at an annual meeting of Stockholders or at such other time as may be requested by Dynegy; provided that, in each case, all such information is generally required to be delivered to Dynegy by the other outside directors of Dynegy. (aiii) The Designated Director will hold office until his or her term expires and such Designated Director’s successor has been duly elected and qualified or until such Designated Director’s earlier death, resignation or removal. (iv) Following the Initial Appointment, in order to designate an individual as the Designated Director, Purchaser must deliver to Dynegy a written notice in accordance with the notice provisions set forth in Section 14(d), which notice shall include (A) the name, age, business address and residence address of such designee, (B) a non-voting observer current resume and curriculum vitae of such designee and (C) a “Board Observer”statement describing such designee’s qualifications. (v) Prior to a Termination Event: (A) in connection with each annual meeting of Stockholders, and subject to the conditions of Section 9(a)(ii) of this Agreement, Dynegy shall nominate the Company’s board Designated Director for election or reelection, as applicable, to the Board and shall use its reasonable best efforts, and take all reasonable and lawful actions necessary or advisable, to cause the Board to recommend that the Stockholders vote “FOR” the election of directors the Designated Director; (B) upon written notice from Dynegy to Purchaser that a Resignation Event has occurred, which notice shall set forth in reasonable detail the “Board”) or (b) elected facts and circumstances constituting the Resignation Event, Purchaser will cause the Designated Director then serving as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members resign as a member of the Board during within five (5) Business Days of such written notice; and (C) any vacancy caused by the period in which such person is a Board Observer; provideddeath, that disability, removal or resignation of the Designated Director shall be filled by the Board Observer shall not be entitled to vote on any matter submitted with an individual designated by Purchaser who, subject to the Board conditions of Section 9(a)(ii) of this Agreement, shall become the Designated Director. (vi) Any action by Purchaser to designate or any replace the Designated Director shall be evidenced in writing delivered to Dynegy and shall be signed by or on behalf of its committees nor Purchaser. (vii) Prior to offer any motions or resolutions designating a Designated Director, Purchaser shall, to the Board or extent requested in writing by Dynegy, enter into a written agreement in a form reasonably satisfactory to Dynegy with the Designated Director whereby such committees. In the event Designated Director agrees to resign as a member of the Board upon a Resignation Event, a Termination Event or at Purchaser’s request, as applicable. Purchaser Designee’s deathacknowledges and agrees that such an agreement is in the best interest of Dynegy and Purchaser, disability or resignation from and that Dynegy shall be a third-party beneficiary of the Board prior to the Business Combination Closingterms and conditions of such an agreement, the Purchaser and Dynegy shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected enforce such an agreement to the Board pursuant to clause same extent as the parties thereto. (bviii) above, Dynegy shall notify the Sponsor hereby agrees to vote Designated Director of all of its shares in the Company in favor regular and special meetings of the election Board and of all regular and special meetings of any committee of the Purchaser DesigneeBoard of which the Designated Director is a member. Dynegy shall provide the Designated Director with copies of all notices, minutes, consents and the Purchaser Designee shall be entitled other materials provided to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director all other members of the Board, independent auditors and/or legal counsel, Board concurrently as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities materials are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, provided to the Companyother members.

Board Representation. (a) Beginning at the Effective upon Time and subject to the IPO Closingterms of this Agreement, the Purchaser Stockholders and the Company shall have take all Necessary Action to cause the right Board to designate one individual be comprised of, initially, six directors, and, by the Independence Deadline, seven directors (provided, that the number of directors may be increased to satisfy the minimum requirements of applicable laws and the listing requirements of the New York Stock Exchange (the “Purchaser DesigneeNYSE”), as applicable, reasonably accounting for Independent Directors and required committee positions), one of whom shall be the Chief Executive Officer, initially two of whom, and, by the Independence Deadline, three of whom shall be Independent Directors designated pursuant to Section 2(a)(ii) below, and the remainder of which shall be designated pursuant to be, at Purchaser’s election, either (aSection 2(a)(i) a non-voting observer (a “below. The initial Board Observer”) shall consist of the Company’s board persons listed on Schedule A. For purposes of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Boardthis Section 2, and to receive all information provided to the members of the Board during Xxxxxxxx Group shall be treated as a single “Stockholder” and their Stockholder Percentage shall be aggregated for purposes of Section 2(a)(i) below. (i) For so long as each of the period Stockholders holds the corresponding Stockholder Percentage set forth in which such person is a Board Observer; providedthe table below, that the Company shall, and the Stockholders shall take all Necessary Action to, include in the slate of nominees recommended by the Board Observer shall not be entitled to vote on any matter submitted to the Board for election as directors at each applicable annual or any special meeting of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee shareholders at which directors are to be elected to that aggregate number of Directors set forth opposite the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all range of its shares in the Company in favor Stockholder Percentage: Range of the election Stockholder Percentages Number of the Purchaser Designee, and the Purchaser Designee shall be entitled Equal to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or greater than Less than Designees 20 50 2 50 100 Majority (ii) such portion The nomination of a Independent Directors to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting is an executive session limited solely of stockholders at which directors are to independent director members be elected will be the responsibility of the full Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon In connection with the IPO ClosingAsset Purchase Agreement and the agreement of Purchaser to the transfer of certain material agreements to the Company from PetStore, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Company hereby acknowledges that as of the Company’s board date of directors this Agreement (i) the “Board”) or (b) elected as a member authorized size of the Board. Any Board Observer shall be entitled to attend meetings of Directors of the BoardCompany is five members, and to receive all information provided to (ii) the members of the Board during of Directors are Julix X. Xxxxxxxxxx, Xxhn X. Xxxxxxxx, Xxrk X. Xxxxxx xxx John X. Xxxxxx, (xii) there is one vacancy on the period in which Company's Board of Directors, and (iv) the Company's By-laws authorize Board members to fill vacancies on the Board of Directors without shareholder approval. The Company hereby agrees that on the Closing Date, the Company's Board of Directors will fill the vacancy on the Board with the Purchaser's designee who shall be Michela English or such person is other reasonable candidate (who shall be at the level of senior vice president of Purchaser or higher) designated by the Purchaser ("Purchaser Designee") and that the Purchaser Designee shall have all the rights associated with being a Board Observer; providedmember, that the Board Observer shall including but not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s deathlimited to, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor at meetings of the election Board; and that at the Company's next annual meeting of the Purchaser Designeeshareholders, and the Purchaser Designee shall be entitled to an indemnification agreement included in the form attached hereto as Exhibit D. Company's slate of nominees for election to the Board at the meeting of shareholders. The Company may exclude any will also obtain prior to Closing a voting agreement reasonably satisfactory to Purchaser and effective as of the Closing from a majority of the holders of its voting stock (determined based on the number of shares of voting stock outstanding after Closing) under which such holders will agree to vote all shares of the Company's voting stock held by them at each annual and special meeting at which directors of the Company are to be elected to appoint the Purchaser Designee to the Company's Board Observer from access to any material or meeting or portion thereof if: of Directors. The voting agreement will terminate on the earlier of (i) the Board concludes in good faith, upon advice of date on which the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege Tenancy and Promotion Agreement entered into between the Company and such counsel; or Purchaser as of the same date as this Agreement is terminated, (ii) such portion the date on which Purchaser has transferred, sold or otherwise disposed of a meeting is an executive session limited solely to independent director members more than twenty-five percent (25%) of the Boardshares of Pets.xxx Xxxmon Stock originally acquired by it from Petsxxxx.xxx, independent auditors and/or legal counselXxc. upon distribution, as if any, of those shares of Pets.xxx Xxxmon Stock received by Petsxxxx.xxx xxxer the Board may designateAsset Purchase Agreement, and excluding for the Board Observer purposes of this calculation any shares Purchaser has pledged to Imperial Creditcorp, Inc.under a guarantee agreement, or (assuming iii) the Board Observer were a member consummation of the Board) would not meet sale of all or substantially all of the then-applicable standards for independence adopted by the NASDAQ Capital MarketCompany's assets or a merger, reorganization or such other exchange on recapitalization or transaction or series of related transactions in which the Company’s securities are then traded. In 's stockholders prior to such transaction hold less than 50% of the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyvoting power.

Board Representation. Effective upon (a) Subject to clause (ii) of Section 3.1(h), from and after the IPO ClosingClosing Date until a Board Right Termination Event occurs (the “Board Right Period”), the Purchaser Original Shareholder shall have the right (but not the obligation), upon written notice to the Company, to designate one individual to serve on the Board (the “Purchaser Shareholder Designee”); provided, however, that such Shareholder Designee shall satisfy the requirements set forth in Section 3.1(b); provided, further, that, if a Board Right Termination Event occurs, the Original Shareholder shall promptly cause the Shareholder Designee, if any, then serving on the Board to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which the Shareholder Designee is then appointed or on which he or she is then serving, and the right of the Original Shareholder to designate a Shareholder Designee shall terminate. Pursuant to the Merger Agreement, Alessandro Xxxxx Xxx was designated by the Original Shareholder to serve on the Board and, effective at the Closing, Alessandro Xxxxx Xxx was appointed to and is serving on the Board as the Shareholder Designee. (b) Notwithstanding anything to bethe contrary set forth in this Agreement, any Shareholder Designee designated by the Original Shareholder pursuant to Section 3.1(a) or Section 3.1(e) (i) shall not, at Purchaser’s electionthe time of such designation, either be required to disclose any information pursuant to Item 2(d) or (a) a non-voting observer (a “Board Observer”e) of Schedule 13D (as in effect on the date of this Agreement) if such Shareholder Designee were the “person filing” such Schedule 13D; (ii) shall not, at the time of such designation, be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or NASDAQ or pursuant to applicable law, including the Companies Acts; and (iii) shall, in the good faith judgment of the Nominating/ Corporate Governance Committee of the Board (the “Nominating Committee”), satisfy the requirements set forth in the Company’s board of directors Organizational Documents and Corporate Governance Guidelines (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled in effect from time to attend meetings of the Boardtime), and in each case as are applicable to receive all information provided to the members of the Board during the period in which such person is a Board Observernon-employee Directors generally; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any however, that, for purposes of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closingthis Section 3.1(b), the Purchaser shall have Company agrees that Alessandro Xxxxx Xxx (A) satisfies, on the right date of this Agreement, the requirements set forth in clauses (i), (ii) and (iii) of this Section 3.1(b) and (B) shall, after the date of this Agreement, be deemed to designate a replacement Purchaser Designee. In satisfy the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to requirements set forth in clause (biii) above, of this Section 3.1(b) for so long as Alessandro Xxxxx Xxx meets the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: requirements set forth clauses (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.this Section 3.1

Board Representation. Effective (a) Each Executive Stockholder and Carlyle Stockholder shall vote all of the Voting Shares over which such Executive Stockholder or such Carlyle Stockholder has voting control and shall take all other necessary or desirable actions within such Executive Stockholder’s or such Carlyle Stockholder’s control (whether in such Executive Stockholder’s or such Carlyle Stockholder’s capacity as a stockholder, director, member of a Board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings, and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws) so that (i) the authorized number of directors (the “Directors”) on the Board shall be at least six and no greater than twelve and (ii) the Directors shall be persons nominated or designated in accordance with this Section 1. (a) Three Directors, who may be full-time employees of the Carlyle Stockholders or any of their respective Affiliates (other than the Company and its subsidiaries), shall be designated for nomination by the Carlyle Stockholders; provided that (A) the number of Directors designated by the Carlyle Stockholders shall be reduced to no fewer than two Directors at such time as the Carlyle Stockholders in the aggregate hold less than twenty-five percent (25%) but at least fifteen percent (15%) of the outstanding shares of Company Common Stock, (B) the number of Directors designated by the Carlyle Stockholders shall be reduced to no fewer than one Director at such time as the Carlyle Stockholders in the aggregate hold less than fifteen percent (15%) but at least five percent (5%) of the outstanding shares of Company Common Stock and (C) the Carlyle Stockholders shall have no right to designate any Director pursuant to this Section 1(b) at such time as the Carlyle Stockholders in the aggregate hold less than five percent (5%) of the outstanding shares of Company Common Stock. The Carlyle Stockholders may, in their sole discretion, choose on any occasion to designate fewer Directors for nomination, and the Board may, in its sole discretion, choose on any occasion to nominate a greater number of Directors, in each case than are provided to be designated by the Carlyle Stockholders pursuant to the preceding sentence. The two Directors currently serving on the Board who were previously designated for nomination for election by the Chief Executive Officer of the Company shall continue to be designated for nomination to the Board until each Director’s resignation, discharge, death or retirement; provided, however, that at all times, no fewer than one Director, who shall be the Chief Executive Officer of the Company, shall be designated for nomination (in either case, the individuals designated pursuant to this sentence shall be referred to as the “Executive Directors”). Any Directors (other than the Chief Executive Officer of the Company) designated pursuant to the immediately preceding sentence, and any Directors designated by the Carlyle Stockholders who are not full-time employees of the Carlyle Stockholders or any of their respective Affiliates (other than the Company and its subsidiaries) and were designated after consultation with the Chief Executive Officer of the Company are hereinafter sometimes referred to as the “Unaffiliated Directors.” The Company will not decrease below six or increase above twelve the number of Directors on the Board without the mutual consent of the Company and the Carlyle Stockholders (so long as the Carlyle Stockholders hold in the aggregate at least five percent (5%) of the outstanding shares of Company Common Stock). (b) The Company shall cause the individuals designated in accordance with Section 1(b) to be nominated for election to the Board, shall solicit proxies in favor thereof, and at each meeting of the stockholders of the Company at which directors of the Company are to be elected, shall recommend that the stockholders of the Company elect to the Board each such individual nominated for election at such meeting. (c) Except as would be contrary to any applicable law, rule or regulation (including any rule or regulation of any exchange upon which securities of the Company or any of its subsidiaries may be listed), each committee of the Board, and each committee of the board of directors of Buyer, BAH and, unless otherwise determined by the Board, each other subsidiary of the Company, shall include at least one Executive Director; provided, however that following an IPO no Executive Director shall serve on any audit or compensation committee of any of the foregoing. (d) Subject to the provisions of the Company’s certificate of incorporation, a Director may be removed from the Board upon the IPO Closingrequest of the Person or group of Persons that designated such Director, and not otherwise; provided that nothing in this Agreement shall be construed to impair any rights that the Stockholders of the Company may have to remove any Director for cause; provided, further, that any Executive Director shall be removed automatically from the Board upon such Executive Director’s Termination of Service, unless otherwise agreed to by the Company and the Carlyle Stockholders. (e) In the event that any Director for any reason ceases to serve as a member of the Board during his term of office, the Purchaser Person or group of Persons who designated such Director shall have the right to designate one for appointment by the remaining Directors of the Company an individual (to fill the “Purchaser Designee”vacant directorship, provided that, to the extent the Director to be replaced pursuant to this Section 1(f) to bewas originally designated by the Carlyle Stockholders, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) the designation for appointment of such individual shall require the prior consent of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice Each of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, Carlyle Stockholders and the Board Observer (assuming Executive Stockholders agrees to take such actions as will result in the Board Observer were a member appointment as soon as practicable of the Board) would not meet the then-applicable standards for independence adopted any individual so designated by the NASDAQ Capital Market, each such Person or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companygroup of Persons.

Board Representation. Effective upon (a) From the IPO Closingdate of this Agreement, the Purchaser Company and, after the Effective Time, the Surviving Corporation, shall take all Necessary Actions such that: (i) Immediately following the Effective Time, a nominee selected by Sponsor, subject to the Company’s reasonable approval (the “Sponsor Director”), shall serve as a director of the Surviving Corporation for a term expiring at the second annual meeting of stockholders of the Company following the Effective Time (the “Sponsor Director Term”); (ii) Should the Sponsor Director resign from the Board, become unable to serve on the Board due to death, disability or other reasons or otherwise cease to serve on the Board for any reason (including failure to be elected by the shareholders of the Company) prior to the expiration of the Sponsor Director Term, the Sponsor will have the right to designate one individual (a replacement director who shall serve as a director of the “Purchaser Designee”) Company for the remainder of the Sponsor Director Term, subject to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board reasonable approval; and (i) From the Effective Time until such time as the Lock-up Period has ended and 100% of directors the Sponsor Shares have vested (such period, the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of the BoardTerm”), and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser Sponsor shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause non-voting observer (b) abovein such capacity, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee“Board Observer”), and the Purchaser Designee who shall initially be Xxxxxxx Xxxxxxxx (“Xx. Xxxxxxxx”), who shall be entitled to attend each regularly scheduled, special and other meeting (including telephonic meetings) of the Board and any committees thereof, and shall be given copies of all notices, reports, minutes, consents and other documents and materials at the time and in the manner as are provided to the Board or the applicable committee thereof, but shall not have any fiduciary duties to the Company or its stockholders as a result of his capacity or service as an indemnification observer as contemplated hereby; provided, that should Xx. Xxxxxxxx become unable to serve as the Board Observer due to death, disability or other reasons or otherwise cease to serve as the Board Observer for any reason prior to the expiration of the Board Observer Term, the Sponsor will have the right to designate a Person, subject to the Company’s reasonable approval, who shall serve as the Board Observer until the end of the Board Observer Term; provided, further, that the Board Observer shall enter into a mutually acceptable, customary confidentiality agreement in form and substance reasonably satisfactory to the form attached hereto Company, and shall also agree to hold any information received as Exhibit D. The Company may exclude any a Board Observer subject to the fiduciary duties that such Board Observer would have to the Company and its stockholders were such Board Observer a director of the Company; provided, further, that the Board Observer may be excluded from access to any material or portion of any meeting or portion thereof if: (i) of the Board concludes or any committee thereof or any portion of meeting materials relating thereto as determined in good faith, upon advice of the CompanyBoard’s counsel, discretion (including if the Board determines that (A) such exclusion is reasonably necessary to (1) preserve the attorney-client privilege between client, work product or similar privilege, (2) comply with applicable law, or (3) protect highly confidential information of the Company and such counsel; or confidential information of third parties that the Company is required to hold in confidence or (iiB) such access could reasonably be expected to result in an actual or potential conflict of interest with the Company provided, however, that such exclusion shall not extend to any portion of a the meeting is an executive session limited solely or meeting materials that does not involve or pertain to independent director members such exclusion). For the avoidance of the Boarddoubt, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were shall not be a member of the Board, and accordingly shall not be permitted to vote at any meeting of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business. (b) would not meet Notwithstanding anything to the thencontrary herein, any Person serving as the Board Observer designated pursuant to this Section 6 may be removed from their position for Cause; provided that Sponsor shall have the right to designate another Person reasonably acceptable to the Company to serve as the Board Observer until the end of the Board Observer Term. (c) The Company agrees that any director serving on the Board pursuant to this Section 6 shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of such director and provide such director with directors’ and officers’ liability insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws or other organizational documents of the Company, any indemnification agreement with such director, applicable Law or otherwise. (d) The Company shall reimburse the Board Observer for all reasonable and documented out-applicable standards for independence adopted of-pocket expenses incurred by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant in connection with the Board Observer’s attendance at meetings of the Board and any committees thereof. The Company shall use commercially reasonable efforts to clause (a) above, Purchaser’s provide the Board Observer shall have no duties, fiduciary or otherwise, with directors’ and officers’ liability insurance to the Companysame extent it provides insurance for the directors of the Company and enter into an indemnification agreement with the Board Observer in a form mutually acceptable to the Company and the Board Observer.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) Subject to and to the extent permitted by applicable Law and Regulations, (i) prior to the next election of directors, and as soon as practicable following the date a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings of vacancy is created on the Board, the Company, through its Board, shall cause to be duly appointed to its Board one individual designated by the DLJ VCOC Fund (the "Purchaser Director") and to receive all information provided to (ii) thereafter, at each election of directors at which the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event term of the Purchaser Designee’s deathDirector will expire, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee recommend for election and cause to be elected to the Board pursuant a nominee, and shall use reasonable best efforts to clause solicit proxies in favor of such nominee consistent with the efforts used to solicit proxies for the other Board nominees, who will be designated by the DLJ VCOC Fund, and upon the election of such nominee, such nominee shall be the Purchaser Director. (b) During any period for which there is no Purchaser Director serving on the Board, the DLJ VCOC Fund, if it is intended to qualify as a "venture capital operating company" within the meaning of the regulations of the United States Department of Labor set forth in 29 C.F.R Section 2510.3-101 (the "Plan Asset Regulations")) shall, upon prior written notice to the Company, be entitled to consult with and advise the management and Board of the Company on significant business issues, and management will meet with the DLJ VCOC Fund periodically during each year (but no more frequently than once each calendar quarter at the Company's executive offices at mutually agreeable times for such consultation and advice. (c) The Company agrees to consider, in good faith, the recommendations of the DLJ VCOC Fund in connection with the matters on which it is consulted as described in subsection (b) above, it being understood and agreed that the Sponsor hereby agrees ultimate discretion with respect to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee such matters shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted retained by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company. (d) The rights granted to the DLJ VCOC Fund under this Agreement are intended to enable the DLJ VCOC Fund to be operated, where applicable, as a "venture capital operating company" within the meaning of the Plan Asset Regulations, and this Agreement shall be interpreted accordingly. (e) Immediately following the Termination Date the rights of the DLJ VCOC Fund under Section 6(a) shall terminate and the DLJ VCOC Fund shall cause the Purchaser Director to resign from the Company's Board. The DLJ VCOC Fund agrees to take all actions necessary or desirable, including the voting of outstanding Common Stock held by it, in order to effect such action.

Board Representation. Effective upon Subject to the IPO Closingterms and conditions of this Agreement, from the date of this Agreement, the Purchaser Company and each Voting Party shall have take all Necessary Action (including by including in the right slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of the stockholders of the Company, including at every adjournment or postponement thereof) to designate one individual cause, effective immediately following the Effective Time, the Board to be comprised of 8 directors: i. 1 of whom shall be the then-serving Chief Executive Officer of the Company (the “Purchaser CEO Designee”), as set forth on Exhibit A hereto, provided that the CEO Designee shall serve as a Class I Director (as defined in the Charter). ii. 2 of whom (the “ASL Designees” and each an “ASL Designee”) have been initially designated as set forth on Exhibit A hereto and shall thereafter be designated by ASL; provided that, ASL will be entitled to bedesignate the number of ASL Designees set forth below for so long as ASL Beneficially Owns the corresponding percentage of Voting Shares set forth below, at Purchaser’s election, either (a) such percentage to be calculated based on the number of Voting Shares then Beneficially Owned by ASL as a non-voting observer (a “Board Observer”) percentage of the Company’s board number of directors all then outstanding Voting Shares. One ASL Designee shall be designated as a Class II director and one ASL Designee shall be designated as a Class III director (each as defined in the Charter): Percentage Number of ASL Designees 10% or greater 2 5% or greater 1 Less than 5% 0 iii. 2 of whom (the “BoardSponsor Designees” and each a “Sponsor Designee”) or (b) elected have been initially designated as a member of set forth on Exhibit A hereto and shall thereafter be designated by the Board. Any Board Observer shall Sponsor; provided that, Sponsor will be entitled to attend meetings designate the number of Sponsor Designees set forth below for so long as Sponsor Beneficially Owns the corresponding percentage of Voting Shares set forth below, such percentage to be calculated based on the number of Voting Shares then Beneficially Owned by Sponsor as a percentage of the Boardnumber of all then outstanding Voting Shares. All Sponsor Designees must be Independent Directors, and if either Sponsor Designee is determined by the Company, on the advice of counsel, to receive no longer be Independent Directors, then the Company and all information provided Voting Parties shall take all Necessary Action to cause the members removal of such Sponsor Designee, the Board during Sponsor shall designate replacement nominees who qualify as Independent Directors and the period Company and the Voting Parties shall take all Necessary Action to elect such individual in which lieu of such person is Sponsor Designee. One Sponsor Designee shall be designated a Board ObserverClass II director and one Sponsor Designee shall be designated as a Class III director (each as defined in the Charter): Percentage Number of Sponsor Designees 10% or greater 2 5% or greater 1 Less than 5% 0 ; providedand iv. 3 of whom (the “Unaffiliated Designee”, that together with the Board Observer CEO Designee, ASL Designees and the Sponsor Designees, the “Designees”) have been initially designated as set forth on Exhibit A hereto and shall not thereafter be designated as follows: (1) for so long as the ASL and the Sponsor are each entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected at least one director to the Board pursuant to clause Section 3(a)(i) and Section 3(a)(ii), by mutual agreement of ASL and Sponsor, and (b2) abovethereafter, by the Sponsor hereby agrees to vote all remaining Board members of its shares in the Company in favor accordance with the nomination procedures established by the Board. All Unaffiliated Designees must be both Independent Directors and also be qualified to serve on the audit committee under the Nasdaq Corporate Governance Requirement, and if any Unaffiliated Designee is determined by the Company, on the advice of counsel, to no longer satisfy such requirements, then the election Company and all Voting Parties shall take all Necessary Action to cause the removal of such Unaffiliated Designee, replacement Unaffiliated Designees shall be selected by the Purchaser Designeeprocess described above, and the Purchaser Company and the Voting Parties shall take all Necessary Action to elect such individual in lieu of such Unaffiliated Designee. Two Unaffiliated Designee shall be entitled to an indemnification agreement serve as Class I directors (as defined in the form attached hereto Charter) and one Unaffiliated Designee shall serve as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the CompanyClass II director.

Board Representation. Effective upon (a) Buyer’s Board of Directors (“Buyer's Board”) currently consists of five (5) directors. Subject to the IPO occurrence of the Closing, the Purchaser shall have the right to designate one individual upon Shareholder Approval (the “Purchaser DesigneeBuyer’s Board Expansion Date”), Buyer’s Board shall consist of seven (7) to bedirectors, at Purchaseras follows: (i) HB, Gxxxxxxx X. Xxxxxxxx, Sxx X. Xxxx, G. Sxxxxx Xxx and J.R. DxXxxx, which persons currently serve as members of Buyer’s election, either Board; and (aii) a non-voting observer two (a “Board Observer”2) of the Company’s board of directors designated by Seller (the “BoardSeller Directors”) or (b) elected ), who shall initially be Jxxxx Xxxxx and Jxxxx Xxxxxx. The Seller Directors shall not receive compensation for their service as a member of the Board. Any Board Observer shall be entitled to attend meetings of the Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observerdirectors; provided, that the Board Observer Buyer shall not be entitled to vote on any matter submitted to promptly reimburse the Board or any of its committees nor to offer any motions or resolutions to the Board or such committeesSeller Directors for all reasonable and documented out-of-pocket expenses incurred by them in connection with their service as directors. In the event of the Purchaser Designee’s deathHB, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees Medley and MOF II each agree to vote all of their Shares in support of this Section 4.2(a). (b) Subject to the occurrence of the Closing, (i) following the Buyer's Board Expansion Date, a super-majority (66 2/3%) vote of Buyer's Board (which shall include the vote of the Seller Directors) and (ii) prior to the Buyer’s Board Expansion Date, written consent of Seller shall be required to approve transactions constituting a “reorganization” under the California Corporations Code or any possible change of control transaction to which Buyer or any subsidiary thereof is a party. A “change of control transaction” shall include, without limitation, any transaction (by stock sale, merger, consolidation or otherwise) whereby any Person or group of Persons acquire 50% or more of the voting securities of Buyer or any sale of all or any material portion of the assets of Buyer or its shares subsidiaries (including, without limitation, equity interests of Buyer’s subsidiaries). (c) If on any date after the Closing Date, the Seller and MOF II (together with their affiliate transferees) beneficially own in the Company in favor aggregate less than 90% of the election of Common Shares acquired by the Purchaser DesigneeSeller and MOF II pursuant to this Agreement, and the Purchaser Designee Seller shall no longer be entitled to an indemnification agreement in designate any Seller Directors to Buyer’s Board and the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faithSeller Directors shall, upon advice the written request of Buyer, promptly tender their resignations. If on any date after the Closing Date, HB beneficially owns less than 90% of the Company’s counselshares of Common Stock owned by him on the date of this Agreement, that such exclusion is reasonably necessary to preserve the attorney-client privilege between Lenders voting obligations under Section 4.2(a) shall terminate and expire. (d) From the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members date of the Closing until the Buyer's Board Expansion Date, Seller may designate one person to attend every Buyer's Board meeting as an unpaid advisor to Buyer's Board, independent auditors and/or legal counseland Buyer shall provide to Seller copies of all information, as the Board may designate, materials and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant consents provided to clause (a) above, PurchaserBuyer’s Board Observer shall have no duties, fiduciary and reimburse such advisor’s reasonable and documented out-of-pocket expenses incurred in connection with his or otherwise, to the Companyher attendance at meetings.

Board Representation. Effective upon (a) The rights granted to NMR and ACN under this Article II with respect to representation on the IPO ClosingBoard shall apply for so long as NMR and its Affiliates, and ACN and its Affiliates, beneficially own at least 5.0% and 10%, respectively, of the issued and outstanding shares of Common Stock on a fully-diluted basis (as defined in Section 4.1(a) below). (b) The Company and NMR have agreed that, effective as of August 15, 1999 hereof, the Purchaser Company shall increase the size of the Board from four to five members and NMR shall have the right to designate nominate one individual (the “Purchaser Designee”) representative to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall be entitled to attend meetings Immediately upon NMR's exercise in full of the BoardSecond Warrant, and the Company agrees to receive all information provided to increase the members size of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser by one member and NMR shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected nominate an aggregate of two representatives to the Board pursuant (such individual(s), together with all future NMR appointees to clause (b) abovethe Board, being referred to herein as the "NMR Director(s)"). After the effectiveness of the registration statement relating to a Company-IPO, the Sponsor Company shall use its best efforts to appoint such additional nominee to the Board of Directors pending the next meeting of stockholders, subject, however, to any fiduciary duties of the Board and compliance with the Restated Certificate and the Bylaws. The Company and ACN have agreed that, effective as of September _____, 1999 hereof, the Company shall increase the size of the Board from five members to six members and ACN shall have the right to nominate one representative to the Board. (c) The Company has duly and validly taken all corporate actions necessary to increase the size of the Board from four to five members and, upon notice from NMR, shall appoint an individual to be designated by NMR to such vacancy in the Board. The Company has duly and validly taken all corporate actions necessary to increase the size of the Board from five to six members and, upon notice from ACN, shall appoint an individual to be designated by ACN to such vacancy in the Board. (d) Each of the Stockholders hereby irrevocably agrees to vote all of its shares in the Company Securities now or hereafter owned by such Stockholder in favor of electing (or re-electing, as the case may be) the NMR Directors and/or NMR's nominees, and ACN Director or ACN nominee, to the Board, as the case may be, and to take all such action as may be necessary to enable NMR and ACN to exercise its rights to Board representation as provided in this Article II, including, without limitation, voting in favor of any amendment of the Bylaws to increase the size of the Board. Each of the Stockholders hereby further agrees to use all reasonable efforts to cause any Director nominated by such Stockholder to vote at any meeting of the Board in favor of NMR's nominees or ACN nominee to the Board or otherwise and to take all such action as may be necessary to enable NMR and ACN to exercise its rights to Board representation as provided in this Article II, including, without limitation, to permit the election or designation to the Board of such number of NMR Directors and an ACN Director to which NMR and ACN, respectively, are entitled under this Addendum. The provisions of this Section 2.1(d) shall expire upon the effectiveness of the registration statement relating to a Company-IPO. (e) After the effectiveness of the registration statement relating to a Company-IPO, NMR shall continue to have the right to designate the number of nominees to the Board specified under Section 2.1(b) above. The Company agrees to nominate such individual(s) as management's nominees at each regularly scheduled annual stockholders meeting or any special meeting of stockholders at which the election of directors shall take place, to recommend to the Purchaser Designee, and the Purchaser Designee shall be entitled stockholders at such meeting such individual's election to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice and otherwise to use all reasonable efforts to cause the election of the Company’s counsel, that such exclusion is reasonably necessary nominee(s) to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon (a) The Company Board of Directors shall maintain the IPO Closingfollowing committees of the Board of Directors: Audit Committee, Litigation Committee, Stock Option and Compensation Committee, Executive Committee and Nominating Committee. (b) At its meeting to be held on February 22, 2000, the Purchaser Company Board of Directors shall increase the number of directors from seven to ten and shall elect the Blockholder Directors to serve as directors until their successors are elected and have qualified. (c) At its meeting to be held on February 22, 2000, the right Company Board of Directors shall elect one Blockholder Director to designate serve on each committee of the Board of Directors, and thereafter, the Board of Directors shall ensure that at least one individual Blockholder Director (if duly elected as directors of Company) shall serve on each committee of the Board of Directors. (d) At its annual meeting of shareholders to be held in May 2000 (the “Purchaser Designee”"2000 Annual Meeting"), the Company Board of Directors shall (i) fix the number of directors to be elected at nine; (ii) nominate for election (A) the Blockholder Directors, (B) Company's Chief Executive Officer, (C) four directors from the current Company Board of Directors provided that if none of the directors from the current Company Board of Directors volunteers not to stand for re-election at such time, then the Nominating Committee shall select one of the current directors who will not be nominated, subject to approval of the current Company Board of Directors, and (D) one new nominee to be selected, subject to approval of the Board of Directors, by the Nominating Committee, which shall use its best efforts to identify and nominate in good faith an appropriate candidate prior to the 2000 Annual Meeting, and (iii) solicit proxies (and if properly executed and otherwise valid, cause such proxies to be voted in accordance with the instructions printed thereon) for such nominees' election. Blockholder will cause all shares of Voting Securities beneficially owned by it and its Affiliates, and shall use its best efforts to cause all shares of Voting Securities beneficially owned by any of its Associates, to be voted in favor of the board size and the directors nominated by Company in accordance with the foregoing sentence. After the 2000 Annual Meeting, Company shall use its best efforts to maintain the size of Company Board of Directors at nine. (e) At its annual meeting of shareholders to be held in May 2001 (the "2001 Annual Meeting"), the Company Board of Directors shall (i) fix the number of directors to be elected at nine; (ii) nominate for election (A) the Blockholder Directors, (B) Company's Chief Executive Officer, (C) four directors from the current Company Board of Directors and the nominee nominated pursuant to Section 5(d) above; PROVIDED that the number of directors from the current Company Board of Directors shall be reduced to three at the later of the 2001 Annual Meeting and the complete resolution of existing governmental litigation described in Company's Form 8-K filed on January 13, 2000 and any similar or related litigation, and if none of the directors from the current Company Board of Directors volunteers to resign or not stand for re-election, as the case may be, at Purchaser’s electionsuch time, either (a) a non-voting observer (a “Board Observer”) then the Nominating Committee shall select one of the Company’s board of current directors (who will be removed or not nominated, as the “Board”) or (b) elected as a member case may be, subject to approval of the Boardcurrent Company Board of Directors; and (iii) solicit proxies (and if properly executed and otherwise valid, cause such proxies to be voted in accordance with the instructions printed thereon) for such nominees' election. Any Board Observer Blockholder will cause all shares of Voting Securities beneficially owned by it and its Affiliates, and shall use its best efforts to cause all shares of Voting Securities beneficially owned by and of its Associates, to be entitled to attend meetings voted in favor of the Boardboard size and the directors nominated by Company in accordance with the foregoing sentence. (f) Unless otherwise determined by the Board of Directors, and to receive all information provided to the members Xx. Xxxxxxxx shall serve as Chairman of the Board during through the period 2000 Annual Meeting. Thereafter, the Chairman of the Board shall be elected by a majority of the Board of Directors. (g) The Chairman of the Board may vote as a director in which all matters to come before the Company Board of Directors at any meeting even when presiding at such person is a Board Observer; providedmeeting, except that the Chairman of the Board Observer may not cast the tie vote for his own election or vote in favor of himself to break a tie vote for his own election. (h) The Company Board of Directors shall not be entitled to vote on any matter submitted to amend those sections of Company's bylaws providing that action by the Board or any of its committees nor to offer any motions or resolutions to Directors and the Board or such committees. In Nominating Committee will be by simple majority vote of a quorum of members present. (i) As of February 22, 2000 and thereafter through the event term of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser this Agreement: (i) The Nominating Committee shall have a maximum of three members. The Board of Directors shall elect the right following directors to designate a replacement Purchaser Designee. In serve on the event the Purchaser designates a Purchaser Designee to be Nominating Committee, if such directors are duly elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.Directors:

Board Representation. Effective upon (a) Pursuant to the IPO ClosingAcquisition Agreement and in accordance with the terms thereof, the Purchaser Stockholder has designated one Director (the “Stockholder Designee”) to serve on the Board until the next meeting of stockholders of the Company at which directors are elected. Thereafter, the Stockholder shall have the right to designate one individual (the “Purchaser Designee”) to beStockholder Designee or a successor thereto and, at Purchaser’s electionas long as such Stockholder Designee satisfies the requirements of Section 3.1(b), either (a) a non-voting observer (a “Board Observer”) the governance guidelines of the Company’s board , as in effect from time to time and is otherwise reasonably acceptable to the Board and the Corporate Governance and Nominating Committee of directors the Board (including any successor committee, the “BoardNominating Committee”), the Company shall use its reasonable best efforts to cause the Stockholder Designee to be included in the slate of Directors approved by the Board for election at each meeting of stockholders of the Company at which directors are elected; provided, however, that if for any period greater than 30 consecutive days the Stockholder shall Beneficially Own Voting Securities representing less than the applicable Ownership Threshold, the Stockholder shall promptly cause the Stockholder Designee to resign and the contractual right of the Stockholder to designate a Director pursuant to this Section 3.1(a) or otherwise shall terminate. (b) elected as a member The Stockholder Designee shall, in the reasonable judgment of the Board. Any Board Observer shall be entitled to attend meetings of Nominating Committee and the Board, (i) have the requisite skill and experience to receive all information provided to the members serve as a director of a publicly traded company, (ii) not be prohibited or disqualified from serving as a director of the Board during pursuant to any rule or regulation of the period SEC or NYSE or by applicable law, and (iii) satisfy the governance guidelines of the Company, as in which effect from time to time, and the Organizational Documents of the Company and otherwise satisfy the qualification standards to serve as a Director set forth in the Company’s Corporate Governance Guidelines, as they may be amended from time to time. The Stockholder shall, and shall cause the Stockholder Designee to, timely provide the Company with accurate and complete information relating to the Stockholder and the Stockholder Designee that may be required to be disclosed by the Company under the Securities Act or the Exchange Act, including such person is information required to be furnished by the Company with respect to the Stockholder Designee in a Board Observer; providedproxy statement pursuant to Rule 14a-101 promulgated under the Exchange Act. In addition, that at the Board Observer Company’s request, the Stockholder shall not be entitled cause the Stockholder Designee to vote on any matter submitted complete and execute the Company’s director and officer questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by the Company. (c) Not less than 120 days prior to each meeting of stockholders of the Company at which directors are to be elected (assuming for these purposes that each annual meeting shall be held on the anniversary of the prior year’s annual meeting), the Stockholder shall provide the Company with written notice of the name of the Stockholder Designee to be nominated for election at such meeting. If it is determined that a Stockholder Designee does not satisfy the requirements of Section 3.1(a) and 3.1(b), or if such Stockholder Designee is not available or eligible to stand for election, then the Stockholder may attempt to name an acceptable and available replacement designee and any such designee satisfying the requirements set forth herein will be included as a nominee for election at such meeting if written notice of its committees nor to offer any motions or resolutions the name of such Stockholder Designee is provided to the Board or such committees. In the event Company within a reasonable period of the Purchaser Designee’s death, disability or resignation from the Board time prior to the Business Combination mailing of the proxy statement for such meeting. (d) Following the Closing, upon the Purchaser resignation, retirement or other removal from office of the Stockholder Designee, (i) the Stockholder shall have the right be entitled promptly to designate a replacement Purchaser Designee. In Stockholder Designee who satisfies the event requirements of Section 3.1(a) and Section 3.1(b) and (ii) the Purchaser designates Company shall use its reasonable best efforts to cause the appointment or election of such replacement designee as a Purchaser Director; provided that this Section 3.1(d) shall not require the Company to cause the appointment to the Board of a Stockholder Designee to replace a Stockholder Designee who has resigned from the Board following the failure of such Stockholder Designee to be elected to the Board pursuant to clause (b) above, by the Sponsor hereby agrees to requisite vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice stockholders of the Company’s counsel. If such Stockholder Designee is not appointed, that such exclusion is reasonably necessary to preserve at the attorney-client privilege between request of the Stockholder, the Company and such counsel; or (ii) such portion will discuss with the Stockholder the appointment of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Companyalternative Stockholder Designee.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either Arch hereby covenants that: (a) on or prior to the Effective Date, Arch will cause a non-voting observer vacancy to be created on its Board of Directors (a “by increasing the number of members of such Board Observer”or otherwise) of and effective no later than the Company’s board of directors Effective Date will cause one person designated by the Standby Purchaser (the “Board”) "Designee"), which person shall be reasonably acceptable to the Board of Directors of Arch and shall not be a director or employee of any entity that competes with Arch in the paging industry (excluding for this purpose the Personal Communications Services business), to be elected or appointed to such Board with an initial term expiring at Arch's Annual Meeting of Stockholders to be held in the year 1999; (b) elected so long as the Standby Purchaser beneficially owns (as a member result of its discretionary control of accounts, management discretion over investment funds or otherwise, directly or through its affiliates) capital stock of Arch representing at least (x) with respect to Arch's Annual Meeting of Stockholders to be held in the year 2002 and meetings of Arch's stockholders held prior thereto, 5.0% and (y) with respect to meetings of Arch's stockholders held thereafter 10.0%, of the Board. Any outstanding voting power, Arch will (i) nominate and recommend the Designee (or another person designated by the Standby Purchaser as the Designee's successor) for election at any meeting of Arch's stockholders at which the term of the Designee or any successor thereto would otherwise expire and (ii) fill any vacancy on Arch's Board Observer shall be entitled of Directors created by the death, resignation or removal of the Designee or any successor thereto with another person designated by the Standby Purchaser as the Designee's successor; and (c) so long as the Designee or any successor thereto remains on Arch's Board of Directors, Arch will permit one additional person designated by the Standby Purchaser (the "Observer") to attend all meetings of the Board, such Board as an observer and to receive copies of all information provided documents and other materials made available to the members of the Board during the period in which such person is a Board Observer; provided, Board. The Standby Purchaser hereby acknowledges that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall Observer will be entitled required to an indemnification agreement execute and deliver to Arch confidentiality agreements in the form attached hereto as Exhibit D. executed by the existing members of Arch's Board of Directors. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice commitment of the Company’s counsel, Standby Purchaser hereunder is subject to the additional condition that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to Arch shall have performed its covenant set forth in clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to of the Companyfirst sentence of this Section 16.

Board Representation. Effective upon During the IPO Closingperiod commencing on the date -------------------------------- hereof and ending on the Termination Date, subject to the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either provisions of applicable laws and regulations: (a) a non-voting observer Enron shall, subject to subsection (a “Board Observer”e) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer shall this Section 2.1, be entitled to attend meetings of nominate two individuals for election to the Company Board, and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, each party hereto that the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby holds Voting Securities agrees to vote all of its shares in the Company such Voting Securities in favor of the election of such individuals (the Purchaser Designee"Enron Directors") to the Company Board; provided, however, that from and after the Purchaser Designee First Disposition Date, Enron's entitlement under this subsection shall be entitled reduced to an indemnification agreement in the form attached hereto as Exhibit D. The right to nominate one individual for election to the Company may exclude any Board Observer from access to any material or meeting or portion thereof if: Board; (b) the Company agrees, by action of the Company Board, (i) to establish, by appointment from among the Board concludes in good faith, upon advice members of the Company’s counselCompany Board, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or maintain an Audit Committee and (ii) such portion to appoint to the Audit Committee one of the Enron Directors, as designated by Enron; (c) the Company agrees to elect or to cause to be elected, through action of the Company Board, to the board of directors of PGE and Northwest (the "Subsidiary Boards" and, together with the Company Board, the "Applicable Boards") a meeting number of individuals designated by Enron, who need not be directors, officers or employees of the Company or any of its Subsidiaries, that is, in the case of each Subsidiary Board, as nearly as is an executive session limited solely practicable, Proportional to independent director the number of members of the Board, independent auditors and/or legal counsel, as the each such Subsidiary Board may designate, and the Board Observer (assuming the Board Observer were a together with Enron's designated member of the Audit Committee, the "Enron Designees"); provided, however, that if at any time during the duration of the Entitlement Period a Subsidiary Board consists solely of officers or employees of the Company or any of its Subsidiaries (an "Insider Board") would and only for so long as such Subsidiary Board remains an Insider Board, the Company shall not meet be obligated pursuant to this subsection (c) to elect or cause to be elected the thenindividuals so designated by Enron to such Subsidiary Board; (d) the Company agrees to permit one of the Enron Directors or, if there are no Enron Directors, one individual designated by Enron, who need not be a director, officer or employee of the Company or any of its Subsidiaries, to attend as a non-applicable standards for independence adopted voting observer all meetings of the Executive Committee and the Compensation Committee and to transmit to such individual, at the time and in the manner sent to other members of such committees, all information and materials provided by the NASDAQ Capital Market, or Company to such other exchange on which committee members; (e) the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwiseCompany agrees, to the extent that the Company reasonably determines that applicable laws and regulations prohibit Enron from designating members of any Applicable Board or of the Audit Committee but permit an individual designated by Enron to attend such meetings, to permit one individual designated by Enron, who need not be a director, officer or employee of the Company or any of its Subsidiaries, to attend as a non-voting observer all meetings of each such Applicable Board and the Audit Committee; and (f) the Company agrees to provide advance notice in accordance with Section 60.034 of the Oregon Business Corporation Act and the Company's bylaws to each Enron Director with respect to each regular and special meeting of the Company Board and the Audit Committee which notice shall, in the case of each special meeting, include a reasonable summary of the subject matter of the meeting.

Board Representation. (a) Effective upon the IPO Closingacceptance for payment of any Shares pursuant to the Offer, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer Parent shall be entitled to attend meetings designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the BoardCompany as will give Merger Subsidiary, and subject to receive all information provided compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the members product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this section) and (ii) the percentage that the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the number of Shares outstanding. The Company shall take all actions necessary to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including increasing the size of the Board during of Directors and/or securing the period resignations of incumbent directors. The Company shall take all action required pursuant to Section 14(f) of the Exchange Act and Rule 14(f)-1 promulgated thereunder in which such person is a Board Observerorder to fulfill its obligations under this Section 2.03 and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith; provided, however, that the Board Observer Parent shall not be entitled to vote on any matter submitted provide to the Board or any of its committees nor Company on a timely basis all necessary information to offer any motions or resolutions be included in such information statement with respect to Parent's designees. Prior to the Board or such committees. In the event mailing of the Purchaser Designee’s death, disability or resignation from the Board prior Schedule 14D-9 to the Business Combination ClosingCompany's stockholders, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates a Purchaser Designee to be elected Parent will supply to the Board pursuant Company in writing and be solely responsible for any information with respect to clause itself and its nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14(f)-1. (b) aboveFollowing the election or appointment of Parent's designees pursuant to Section 2.03 and until the Effective Time, the Sponsor hereby agrees to vote all Company's Board of its shares Directors shall have at least two directors who are directors on the date of this Agreement (the "CONTINUING DIRECTORS"); provided that in the Company in favor event that the number of the election of the Purchaser DesigneeContinuing Directors shall be reduced below two for any reason whatsoever, and the Purchaser Designee any remaining Continuing Directors (or Continuing Director, if there shall be only one remaining) shall be entitled to an indemnification agreement in designate persons to fill such vacancies who shall be deemed to be Continuing Directors for purposes of this Agreement. The approval of the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access Continuing Directors shall be required to any material or meeting or portion thereof if: authorize (i) and such authorization shall constitute the authorization of the Board concludes in good faith, upon advice of Directors and no other action on the part of the Company’s counsel, that such exclusion is reasonably necessary including any action by any other director of the Company (even if the Continuing Directors do not constitute a majority of all directors then in office), shall be required to preserve authorize) any termination of this Agreement by the attorney-client privilege between Company, any amendment of this Agreement requiring action by the Board of Directors, any amendment of the certificate of incorporation or bylaws of the Company and such counsel; any exercise or (ii) such portion enforcement of a meeting is an executive session limited solely to independent director members or any waiver of compliance with any of the Board, independent auditors and/or legal counsel, as agreements or conditions contained herein for the Board may designate, and the Board Observer (assuming the Board Observer were a member benefit of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall have no duties, fiduciary or otherwise, to the Company.

Board Representation. Effective upon the IPO Closing, the Purchaser shall have the right to designate one individual (the “Purchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer Not later than fifteen (a “Board Observer”15) days after the Closing Date, the Trust shall: (i) take all necessary action, if any, to increase the number of trustees of the Company’s Trust by two, and (ii), subject to the Nevada Gaming Approvals, nominate and support for election to the board of directors (trustees of the “Board”) or Trust Xxxx X. Xxxxxxx and Xxxxx X. Xxxxx. (b) elected For so long as a member of PRISA II shall maintain the Board. Any Board Observer Minimum Share Ownership, PRISA II shall continue to be entitled to attend meetings designate, subject to the Nevada Gaming Approvals, one representative to be nominated for election to the board of trustees of the BoardTrust, and the Trust shall cause the board of trustees of the Trust to so nominate such designee, and to receive all information provided support such nomination along with the other nominees of management and the board of directors, for election to the members board of trustees of the Board during Trust at any annual or special meeting of the period in which such person shareholders of the Trust called for the purpose of electing trustees. Xxxxx Xxxxx is a Board Observer; provided, that the Board Observer individual so designated by PRISA II as of the date of this Agreement. If the representative designated by PRISA II shall not be entitled to vote on any matter submitted elected to the Board or any board of its committees nor to offer any motions or resolutions to the Board or such committees. In the event trustees of the Purchaser Designee’s Trust, such right of PRISA II shall be suspended until such representative is up for re-election or the seat occupied thereby otherwise becomes vacant. Upon the death, disability disability, retirement, removal (with or without cause) or resignation from the Board prior to the Business Combination Closingof any such trustee designated by PRISA II, the Purchaser PRISA II shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates for such individual to fill such capacity and serve as a Purchaser Designee to be elected to the Board pursuant to clause (b) above, the Sponsor hereby agrees to vote all of its shares in the Company in favor trustee of the election Trust for the remainder of the Purchaser Designeedeparting trustee's term, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice trustees of the Company’s counsel, that Trust shall appoint such exclusion is reasonably necessary replacement individual to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion board of a meeting is an executive session limited solely to independent director members trustees of the BoardTrust to fill such vacancy. If PRISA II shall at any time fail to maintain the Minimum Share Ownership, independent auditors and/or legal counsel, as then the Board may designate, rights granted to PRISA II by this Section 18.01 shall immediately terminate and the Board Observer (assuming the Board Observer were party designated by PRISA II, if then a member Trustee of the BoardTrust, shall promptly resign such trusteeship. (c) would not meet The election and removal of trustees of the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer Trust shall have no duties, fiduciary or otherwise, at all times remain subject to the Companyterms and conditions of the Trust's Constituent Documents. The provisions of this Section 18.01 shall survive Closing.

Board Representation. Effective upon (a) Upon the IPO occurrence of the Second Closing, (i) the Purchaser Company shall increase the size of the Board by two directors and (ii) the Board shall fill these vacancies with two persons designated by the Investor who shall be reasonably acceptable to the Board (including that each such person shall have had at least five years of private industry experience, generally confirm the Company’s mission and strategy and qualify as “independent” in accordance with Nasdaq and the Exchange Act) and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”), all as set forth under “Corporate Governance” on the Company’s website at xxx.xxxxxxx.xxx. In addition, the applicable definitions of “independent” as currently in effect are set forth on Exhibit C attached hereto. (b) Following the Second Closing and until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election two Qualified Nominees designated by the Investor to serve as directors on the Board (each a “Board Representative”) and shall use its reasonable best efforts to cause such persons to be elected to serve as directors on the Board (it being understood that such Qualified Nominees shall not be in addition to the persons designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate one individual two Qualified Nominees to serve on the Board at any given time shall be limited to two persons); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominees as directors and (ii) upon the “Purchaser Designee”death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) Each of the Company’s board of directors (the “Board”) or (b) elected as a member of the Board. Any Board Observer Representatives, if any, shall be entitled to attend meetings the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to receive reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify each Board Representative of all information regular and special meetings of the Board and shall notify each Board Representative of all regular and special meetings of any committee of the Board of which the respective Board Representative is a member. The Company shall provide each Board Representative with copies of all notices, minutes, consents and other materials provided to the all other members of the Board during concurrently as such materials are provided to the period in which such person is a Board Observer; provided, other members. (d) Investor acknowledges and agrees that if the Board Observer Second Closing does not occur (i) Investor shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. In the event of the Purchaser Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall have the right to designate a replacement Purchaser Designee. In the event the Purchaser designates Qualified Nominee or a Purchaser Designee to be elected to the Board pursuant to clause (b) aboveRepresentative, the Sponsor hereby agrees to vote all of its shares in the Company in favor of the election of the Purchaser Designee, and the Purchaser Designee shall be entitled to an indemnification agreement in the form attached hereto as Exhibit D. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming the Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the NASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded. In the event the Purchaser designates a Board Observer pursuant to clause Company shall have no obligation under paragraphs (a) above, Purchaser’s Board Observer — (c) of this Section 2.3 and (iii) neither the Investor nor any person designated by Investor as provided above in this Section 2.3 shall have no duties, fiduciary or otherwise, to the Companyany rights under this Section 2.3.