Common use of Designation of Directors Clause in Contracts

Designation of Directors. (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).

Designation of Directors. (a) Following 3.1 On the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of Closing Date, the Certificate of Incorporation: Designated Directors shall be as follows: (i) Xxxx X. Xxxxxx shall be the Board shall adopt an amendment to the Bylaws Designated Director of the Company establishing nine Orbimed Purchasers as shown on the number signature page of directors which shall constitute the whole Board and this Deed; (ii) Xxxxx X. Xxxxx shall be the Class B Directors serving Designated Director of the Sofinnova Purchaser as shown on the Board immediately preceding such conversion signature page of this Deed; (iii) Xxxxx Xxxxx shall continue to serve be the Designated Director of the Fountain Purchaser as shown on the Board signature page of this Deed; and (iv) Xxxxxx Xxxxxxxx shall be the Designated Director of the Abingworth Purchasers as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removalshown on the signature page of this Deed. (b) From and after 3.2 The parties acknowledge that although the automatic conversion Lead Investors have not yet specified Designated Directors in accordance with Section 2.2 of all Class B Stock into Class A Stock pursuant this Deed, the Lead Investors reserve the right to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, designate such persons at any time that Xxxxx Xxxxxxx or after the date hereof. 3.3 From time to time during the term of this Deed, each Investor who is entitled to specify a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the optionDesignated Director pursuant to this Deed may, in its sole discretion, to : (a) notify the Company and the other Investors in writing of such party's designee or designees its intention to be included in the slate of nominees to be recommended by remove from the Board to the stockholders for election as a director or directors at the next meeting any of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directorsDesignated Directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula:or (cb) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company and the other Investors in writing of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled intention to designate more than one such designee. Notwithstanding anything a new Designated Director (whether to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights replace a prior Designated Director or to designate directors in accordance with subsection 5(bfill a vacancy left by its prior Designated Director). (d) 3.4 In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as of such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence an initiation of a quorum at such meetings. (g) Upon request by Apolloremoval or selection of a Designated Director under this Section 3, one of the directors designated by Apollo in accordance with subsection 5(b) each other Investor shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committeevote its Voting Securities and/or cause its Designated Directors, if any, to exercise his or her voting rights as a director in accordance with Article 111 of the Company’s Articles of Association (as amended from time to time) as may be necessary to cause: (a) the removal from the Board of the Designated Director so specified for removal; and (it being agreed that b) the Company shall be under no obligation election to establish an Executive Committee)the Board of any such new Designated Director.

Designation of Directors. (a) Following After the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH appointment of the Certificate Initial Board and the Post-Specified Event Board as set forth in Section 2(b), for so long as the Shareholder Beneficially Owns the applicable percentage of Incorporation: Ordinary Shares set forth below, the Shareholder shall have the right to designate, and the individuals nominated for election as Directors by or at the direction of the Board shall include: (i) the Board shall adopt an amendment to the Bylaws lowest number of Directors representing a majority of the Company establishing nine Directors on the Board, assuming no vacancies, so long as the number Shareholder Beneficially Owns at least 50% of directors which shall constitute the whole Board and outstanding Ordinary Shares; (ii) three (3) Directors, so long as the Class B Directors serving on Shareholder Beneficially Owns at least 25% of the Board immediately preceding such conversion shall continue to serve on outstanding Ordinary Shares but less than 50% of the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal.outstanding Ordinary Shares; (biii) From and after two (2) Directors, so long as the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Shareholder Beneficially Owns at least 15% of the Certificate outstanding Ordinary Shares but less than 25% of Incorporationthe outstanding Ordinary Shares; and (iv) one (1) Director, at any time that Xxxxx Xxxxxxx or a Member so long as the Shareholder Beneficially Owns one-ninth (1/9) or more at least 10% of the total number outstanding Ordinary Shares but less than 15% of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directorsOrdinary Shares. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that the number of TZE Designee(s) exceeds the number of Designee(s) that TZE is entitled to designate pursuant to this Section 2(d) (such excess number of Designee(s) of TZE, its “Excess Designee(s)”), TZE shall as promptly as practicable cause a person nominated number of the TZE Designee(s) equal to its Excess Designee(s) to resign from the Board, and elected the Nominating and Corporate Governance Committee shall as promptly as practicable thereafter, in accordance with the Nominating and Corporate Governance Committee Charter, recommend to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve an individual who would qualify as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A an Independent Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of or appointment to the Board to fill the vacancy that is caused by each such seat. resignation. The Board shall as promptly as practicable thereafter take all action necessary (fand TZE shall cause the TZE Designees to promptly take all action necessary and shall vote all of its Voting Securities or, if applicable, consent in writing) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directorsor appoint any such individual identified by the Nominating and Corporate Governance Committee, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Nominating and Corporate Governance Committee of Charter, to the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)Board.

Designation of Directors. (a) Following So long as any principal amount of this Note or the automatic conversion Other Notes remains outstanding, the Majority Holders shall be entitled, from time to time, to select a Person who shall not be an Affiliate of Xxxxxxxxx and who shall have the right to designate by notice to the Company up to two persons (the first of whom, subject to his completion of the D&O Questionnaire and the prompt completion of background and other reasonable due diligence investigations to the Company’s reasonable satisfaction, shall initially be Xxxx Auf Der Hyde) to serve from time to time as members of the Board of Directors, provided, that each of such person(s) designated to serve as a member of the Board of Directors (1) so long as Xxxxxxxxx holds all Class B Common Stock or any portion of this Note or any Other Note, is reasonably acceptable to Xxxxxxxxx and at least one other holder of this Note or any Other Notes and (2) is not an Affiliate of Xxxxxxxxx. Any person(s) so designated for election to the Board of Directors shall enter into Class A Common Stock an agreement with Xxxxxxxxx on such terms as shall be acceptable to Xxxxxxxxx pursuant to subsection (c)(iii)(Bwhich such person(s) of Article FOURTH shall agree not to share or convey any non-public information such person(s) learns in its role as a director. The Company shall, from time to time, use its best efforts to cause the election of the Certificate person(s) so designated to serve as members of Incorporation: the Board of Directors as promptly as possible. If for any reason under applicable law or the Company’s By-laws any such designee cannot immediately be elected to the Board of Directors, then until such time as such person(s) is elected to the Board of Directors (i) the Board person(s) so designated shall adopt an amendment have the right to the Bylaws be present at all meetings of the Company establishing nine as the number Board of directors which Directors, but shall constitute the whole Board and not be entitled to vote on any action taken at such meeting, (ii) the Class B Directors serving on Company shall provide notice to such person(s) of the date, place and time of each such meeting at least the same period in advance as the shortest such notice provided to any member of the Board immediately preceding of Directors, (iii) the Company shall provide such conversion shall continue person(s) all agendas and other information and materials provided to serve on the Board of Directors contemporaneously with the time the Company provides the same to the Board of Directors and (iv) the Company shall provide to such person(s) copies of each proposed unanimous written consent of the Board of Directors which consent is given to all members of the Board of Directors for execution by the directors during such period, at the same time such written consent is given to all members of the Board of Directors. In case any person designated as Class A a member of the Board of Directors until their successors are duly elected pursuant to this Section 3.16 shall resign, die, be removed from office or otherwise be unable to serve, the Majority Holders shall be entitled to appoint a Person to designate a replacement pursuant to, and qualified or until their earlier deathin accordance with, resignation or removalthis Section 3.16. (b) From and after In the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time event that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting approval of the stockholders of the Company held shall be required to elect directors; PROVIDEDthe person(s) designated to serve as a member of the Board of Directors pursuant to this Section 3.16, HOWEVERthe Company shall call a meeting of stockholders to be held within 90 days after the date such person(s) is so designated, that shall prepare and file with the maximum number SEC as promptly as practical, but in no event later than 30 days after such date, preliminary proxy materials which set forth a proposal to seek the approval of persons so designated the election of such designee(s), and the Board of Directors shall recommend approval thereof by the Company’s stockholders. The Company shall mail and distribute its proxy materials for such party shall be equal stockholder meeting to its stockholders at least 30 days prior to the result (rounded date of such stockholder meeting and shall actively solicit proxies to vote for the nearest whole number) election of applying the following formula:such designee(s). (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board Notwithstanding anything herein to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directorscontrary, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director Xxxxxxxxx holds all or any portion of this Note or any Other Note, the rights and obligations under Delaware law (it being agreed that being an employee this Section 3.16 may not be waived or otherwise a representative amended without the consent of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)Xxxxxxxxx.

Designation of Directors. Until the termination of this Agreement pursuant to Section 2 hereof, Investor shall have the right to designate certain members to the Board (aeach, individually, an “Investor Designee” and, collectively, the “Investor Designees”) Following as follows: (i) At any time until the automatic conversion termination of all Class B this Agreement pursuant to Section 2 and subject to the provisions of Section 1(a)(iii) below, Investor shall have the right to designate a number of the members of the Board as shall be equal to (x) the Boyalife Ownership Percentage (as defined below) multiplied by (y) the total number of members of the Board. Solely for purposes of illustrating the foregoing and subject to Section 1(a)(iii) below, if the Boyalife Ownership Percentage is 40% and the Board is comprised of 5 members, then Investor would have the right to designate 2 members of the Board (i.e., 0.4 multiplied by 5 members equals 2). (ii) For purposes of this agreement, the “Boyalife Ownership Percentage” is an amount equal to, as of any determination date, the result obtained by dividing: (A) the sum of (i) number of outstanding shares of common stock, par value $.001 per share, of the Company (“Common Stock”) held by the Investor, its Affiliates, and their respective successors and assigns as of the determination date plus (ii) the number of shares of Common Stock into Class A Common Stock issuable pursuant to subsection (c)(iii)(B) of Article FOURTH any convertible debt or preferred stock held by the Investor, its Affiliates, and their respective successors and assigns as of the Certificate determination date that is immediately convertible as of Incorporation: the determination date without any further payments by the holder thereof (referred to as the “Determination Date Conversion Shares”), by (B) the sum of (i) the Board shall adopt an amendment to the Bylaws total number of outstanding shares of Common Stock as of the Company establishing nine as the number of directors which shall constitute the whole Board and determination date plus (ii) the Class B Directors serving on Determination Date Conversion Shares. The Parties agree and acknowledge that the Board immediately preceding such conversion shall continue Boyalife Ownership Percentage is a measure that is used solely for purposes of this Agreement and is not intended to serve on establish or be equal to any ownership percentage calculated and reported under Regulation 13D-G promulgated by the Board as Class A Directors until their successors are duly elected U.S. Securities and qualified Exchange Commission or until their earlier death, resignation under any other provision of federal or removalstate securities laws. (biii) From and after If the automatic conversion of all Class B Stock into Class A Stock pursuant calculation in Section 1(a)(i) above results in the right to subsection (c)(iii)(B) of Article FOURTH designate a fractional member of the Certificate Board, then the number of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more members of the total number of the then issued and outstanding shares of Class A Common Stock, such party Board for which Investor shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party designation right shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directorsup, provided that such Eligible Holder continues to hold such number if rounding up would result in designation of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto members at a time when the Boyalife Ownership Percentage is less than 50%, then the number shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it rounded down instead. For purposes of illustrating the foregoing and all its Affiliates not in limitation thereof, if the Boyalife Ownership Percentage is 52% at a time when there are voted, at any meeting 5 members of the stockholders of Board, then Investor would have the Company held right to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, designate 3 members of the Board (it being agreed that i.e., 0.52 multiplied by 5 members equals 2.6, which would be rounded up to 3 members). If, on the Company shall other hand, the Boyalife Ownership Percentage is 48% at a time when there are 5 members of the Board, then Investor would have the right to designate 2 members of the Board (i.e., 0.48 multiplied by 5 members equals 2.4, which would be under no obligation rounded down to establish an Executive Committee2 members because the Boyalife Ownership Percentage is less than 50%).

Designation of Directors. The designees to the Board described above (aeach a “Designee”) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: shall be selected as follows: (i) Each “Senior Designee” shall be chosen by the holders of at least 75% of the sum of shares of (i) Senior Preferred Stock and (ii) shares of Common Stock owned by holders of Series C Preferred Stock (the “Selected Common Stock”), voting together as a single class on an as converted basis; provided, however, that (A) one Senior Designee shall be an outside independent director with expertise in the Company’s industry, (B) for so long as any of Xxxxx Street Partners LLC, Xxxxx Street Partners 2006 Direct Fund, L.P., Xxxxx Street Partners 2007 Direct Fund, L.P., Xxxxx Street Partners 2008 Direct Fund, L.P., Xxxxx Street Partners 2009 Direct Fund, L.P., Xxxxx Street Partners 2010 Direct Fund, L.P., and/or Xxxxx Street Partners 2011 Direct Fund L.P. or any of their affiliated funds own any shares of the Senior Preferred Stock, one Senior Designee shall be designated by Xxxxx Street Partners, LLC on behalf of such funds (together, “ASP”) (the “ASP Designee”), appointed solely in the discretion of ASP and (C) for so long as any of Battery Ventures IX, L.P., Battery Investment Partners IX, LLC or any of their affiliated funds own any shares of the Senior Preferred Stock, one Senior Designee shall be designated by Battery Ventures IX, LLC on behalf of such funds (together, “Battery”) (the “Battery Designee”), appointed solely in the discretion of Battery. (ii) The “Common Designees” shall be approved by the holders of a majority of the Common Stock of the Company, voting as a separate class; provided, however, that one of the Common Designees shall be the CEO Director and one of the Common Designees shall be an unaffiliated independent outside director. The “CEO Director” shall be the Company’s Chief Executive Officer, provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of the Company, the Voting Parties shall promptly vote their respective Common Stock (i) to remove the former Chief Executive Officer from the Board shall adopt an amendment to the Bylaws if such person has not resigned as a member of the Company establishing nine as the number of directors which shall constitute the whole Company’s Board and (ii) to elect such person’s replacement as Chief Executive Officer of the Class B Directors serving on Company as the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removalnew CEO Director. (biii) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party The “Mutual Designee” shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended approved by the Board to the stockholders for election as a director or directors at the next meeting holders of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A outstanding shares of Common Stock Beneficially Owned by it and all its Affiliates are votedSenior Preferred Stock, at any meeting of the stockholders of the Company held voting together as a single class (on an as converted to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committeecommon stock basis).

Designation of Directors. (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Closing, each of the Certificate Stockholders shall vote its shares of IncorporationCompany Stock (to the extent entitled to vote), at any time that Xxxxx Xxxxxxx each regular or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next special meeting of the stockholders of the Company held called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and shall take all actions reasonably necessary, to elect directorsensure the election to the Board of the following individuals: (i) two (2) individuals (the "Windward Nominees") selected by the Windward Agent who may be affiliated with Windward; PROVIDED(ii) one (1) individual selected by the holders of a majority of the percentage interests (the "Majority WP Holders") in Windward/Park (the "Windward/Park Nominee"), HOWEVERprovided, however, that in the maximum number event that at the -------- ------- end of persons so designated any thirty consecutive day period in which the Majority WP Holders shall have failed to select the Windward/Park Nominee, then the Windward Agent shall select the Windward/Park Nominee to serve until such time as the Majority WP Holders shall select an individual to serve as the Windward/Park Nominee (at which time the individual appointed by such party the Windward Agent to serve as the Windward/Park Nominee shall resign and be equal to replaced by the result individual selected by the Majority WP Holders in accordance with Article II hereof); (rounded to iii) three (3) individuals (the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDERIndependent Nominees") Beneficially Ownsselected by the Windward Agent who shall not be employees of Windward; and (iv) three (3) individuals (the "Management Stockholder Nominees") selected by the Management Stockholders (or by the Management Stockholders and the Permitted Transferees of the Management Stockholders, if any, as the result Management Stockholders and such Permitted Transferees may agree between or among themselves by the affirmative vote of the holders of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more majority of the total number shares of Company Stock owned by such persons). To effectuate the provisions of this Section 2.2, the Secretary of the then issued and outstanding shares of Class A Common Stock and Class B Common StockCompany, taken in the aggregate, or if there be no Secretary such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders other officer of the Company held as the Board may appoint to elect directorsfulfill the duties of Secretary (the "Secretary"), provided that such Eligible Holder continues to hold such number shall not record, and the Company shall not give effect to, any vote or consent contrary to, or inconsistent with, the terms of shares through the date of such meetingthis Section 2.2. The Board or its nominating committee shall include such designee in Windward Nominees, the slate of nominees Windward/Park Nominee, the Independent Nominees and the Management Stockholder Nominees are sometimes collectively referred to be recommended by herein as the Board to the stockholders for election "Nominees" and individually as a director at "Nominee." From and after the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained hereinClosing, an Eligible Holder Majority WP Holders shall not be entitled to designate more than one such designee. Notwithstanding anything (subject to the contrary contained herein, Apollo may designate only reasonable approval of the Board) one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c(1) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor individual who shall be designated entitled to notice of, and nominated in the same manner and procedure as such former director was designated and nominated pursuant shall be entitled to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b)attend, 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority all meetings of the Board (such designee, the "Windward/Park Observer"). The Windward/Park Observer shall not be (X) permitted to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, vote at any meeting of the stockholders Board or on any matter which may be considered by the Board or (Y) counted for purposes of determining whether there is sufficient quorum for the Board to conduct its business. The parties hereto acknowledge and agree that the Windward/Park Observer shall owe no fiduciary or other duties to the Stockholders or otherwise have any director or fiduciary duties or liabilities to the Company or its Stockholders. (b) The Management Stockholders (or the Management Stockholders and the Permitted Transferees of the Company held to elect directorsManagement Stockholders, for the persons nominated if any) may recommend to the Board pursuant Windward Agent up to subsection 5(b)two (2) individuals for consideration by the Windward Agent in selecting the Independent Directors; provided, 5(c)however, 5(d) the -------- ------- parties hereto acknowledge that the Windward Agent shall have the final determination as to the selection of the Independent Nominees and as such the Windward Agent may accept or 5(e). Each party reject the recommendations of the Management Stockholders (or the Management Stockholders and all its Affiliates, as Class A the Permitted Transferees of the Management Stockholders, shall be present, if any) for any reason and under any circumstances in person or by proxy, at all meetings of stockholders the sole discretion of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose Windward Agent. For purposes of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo individuals to be recommended in accordance with subsection 5(b) shall the foregoing sentence, the Management Stockholders (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committeetheir Permitted Transferees, if any, ) may agree on such individuals between or among themselves by the affirmative vote of the Board (it being agreed that holders of a majority of the shares of Company shall be under no obligation to establish an Executive Committee)Stock owned by such persons.

Designation of Directors. (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Closing, each of the Certificate Stockholders shall vote its shares of IncorporationCompany Stock (to the extent entitled to vote), at any time that Xxxxx Xxxxxxx each regular or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next special meeting of the stockholders of the Company held called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and shall take all actions reasonably necessary, to elect directorsensure the election to the Board of the following individuals: (i) two (2) individuals (the “Windward Nominees”) selected by the Windward Agent who may be affiliated with Windward; PROVIDED(ii) one (1) individual selected by the holders of a majority of the percentage interests (the “Majority WP Holders”) in Windward/Park (the “Windward/Park Nominee”), HOWEVERprovided, however, that in the maximum number event that at the end of persons so designated any thirty consecutive day period in which the Majority WP Holders shall have failed to select the Windward/Park Nominee, then the Windward Agent shall select the Windward/Park Nominee to serve until such time as the Majority WP Holders shall select an individual to serve as the Windward/Park Nominee (at which time the individual appointed by such party the Windward Agent to serve as the Windward/Park Nominee shall resign and be equal to replaced by the result individual selected by the Majority WP Holders in accordance with Article II hereof); (rounded to iii) three (3) individuals (the nearest whole number“Independent Nominees”) selected by the Windward Agent who shall not be employees of applying Windward; and (iv) three (3) individuals (the following formula: “Management Stockholder Nominees”) selected by the Management Stockholders (c) At any time a Person who has been designated or by Apollo the Management Stockholders and is not otherwise a Person whose primary business is the designPermitted Transferees of the Management Stockholders, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Ownsif any, as the result Management Stockholders and such Permitted Transferees may agree between or among themselves by the affirmative vote of the holders of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more majority of the total number shares of Company Stock owned by such persons). To effectuate the provisions of this Section 2.2, the Secretary of the then issued and outstanding shares of Class A Common Stock and Class B Common StockCompany, taken in the aggregate, or if there be no Secretary such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders other officer of the Company held as the Board may appoint to elect directorsfulfill the duties of Secretary (the “Secretary”), provided that such Eligible Holder continues to hold such number shall not record, and the Company shall not give effect to, any vote or consent contrary to, or inconsistent with, the terms of shares through the date of such meetingthis Section 2.2. The Board or its nominating committee shall include such designee in Windward Nominees, the slate of nominees Windward/Park Nominee, the Independent Nominees and the Management Stockholder Nominees are sometimes collectively referred to be recommended by herein as the Board to the stockholders for election “Nominees” and individually as a director at “Nominee.” From and after the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained hereinClosing, an Eligible Holder Majority WP Holders shall not be entitled to designate more than one such designee. Notwithstanding anything (subject to the contrary contained herein, Apollo may designate only reasonable approval of the Board) one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c(1) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor individual who shall be designated entitled to notice of, and nominated in the same manner and procedure as such former director was designated and nominated pursuant shall be entitled to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b)attend, 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority all meetings of the Board (such designee, the “Windward/Park Observer”). The Windward/Park Observer shall not be (X) permitted to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, vote at any meeting of the stockholders Board or on any matter which may be considered by the Board or (Y) counted for purposes of determining whether there is sufficient quorum for the Board to conduct its business. The parties hereto acknowledge and agree that the Windward/Park Observer shall owe no fiduciary or other duties to the Stockholders or otherwise have any director or fiduciary duties or liabilities to the Company or its Stockholders. (b) The Management Stockholders (or the Management Stockholders and the Permitted Transferees of the Company held to elect directorsManagement Stockholders, for the persons nominated if any) may recommend to the Board pursuant Windward Agent up to subsection 5(b)two (2) individuals for consideration by the Windward Agent in selecting the Independent Directors; provided, 5(c)however, 5(d) the parties hereto acknowledge that the Windward Agent shall have the final determination as to the selection of the Independent Nominees and as such the Windward Agent may accept or 5(e). Each party reject the recommendations of the Management Stockholders (or the Management Stockholders and all its Affiliates, as Class A the Permitted Transferees of the Management Stockholders, shall be present, if any) for any reason and under any circumstances in person or by proxy, at all meetings of stockholders the sole discretion of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose Windward Agent. For purposes of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo individuals to be recommended in accordance with subsection 5(b) shall the foregoing sentence, the Management Stockholders (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committeetheir Permitted Transferees, if any, ) may agree on such individuals between or among themselves by the affirmative vote of the Board (it being agreed that holders of a majority of the shares of Company shall be under no obligation to establish an Executive Committee)Stock owned by such persons.

Designation of Directors. (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Closing, each of the Certificate Shareholders shall vote its shares of Incorporation, Company Stock (to the extent entitled to vote) at any time that Xxxxx Xxxxxxx each regular or a Member Beneficially Owns one-ninth (1/9) or more special meeting of the total number shareholders of the then issued Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of shareholders, and outstanding shall take all actions reasonably necessary to ensure that the Board shall consist of no more than twelve members and the election to the Board of the following individuals: (x) for as long as the Family LP shall own any shares of Class A Common Stock, such party shall have (i) seven (7) individuals (the option"Windward Nominees") selected by Windward, in its sole discretionas the agent for the Windward Group, to notify the Company of such party's designee or designees to who may be included in the slate of nominees to be recommended affiliated with Windward, (ii) one (1) individual selected by the Board to the stockholders for election as holders of a director or directors at the next meeting of stockholders majority of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees percentage interests (the "Majority WP Holders") in Windward/Park (the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; "Windward/Park Nominee"), PROVIDED, HOWEVER, that in the maximum event that at the end of any thirty (30) consecutive day period in which the Majority WP Holders shall have failed to select the Windward/Park Nominee, then the Windward Agent shall select the Windward/Park Nominee to serve until such time as the majority WP Holders shall select an individual to serve as the Windward/Park Nominee (at which time the individual appointed by the Windward Agent to serve as the Windward/Park Nominee shall resign and be replaced by the individual selected by the Majority WP Holders in accordance with Article II hereof), (iii) one (1) individual selected by the holders of a majority of the percentage interests (the "Majority WP Holders") in Windward/Badger (the "Windward/Badger Nominee"), PROVIDED, HOWEVER, that in the event that at the end of any thirty (30) consecutive day period in which the Majority WP Holders shall have failed to select the Windward/Badger Nominee, then the Windward Agent shall select the Windward/Park Nominee to serve until such time as the Majority WP Holders shall select an individual to serve as the Windward/Park Nominee (at which time the individual appointed by the Windward Agent to serve as the Windward/Park Nominee shall resign and be replaced by the individual selected by the Majority WP Holders in accordance with Article II hereof), (iii) one (1) individual selected by the holders of a majority of the percentage interests (the "Majority WB Holders") in Windward/Badger (the "Windward/Badger Nominee"), PROVIDED, HOWEVER, that in the event that at the end of any thirty (30) consecutive day period in which the Majority WB Holders shall have failed to select the Windward/Badger Nominee, then the Windward Agent shall select the Windward/Badger Nominee to serve until such time as the Majority WB Holders shall select an individual to serve as the Windward/Badger Nominee (at which time the individual appointed by the Windward Agent to serve as the Windward/Badger Nominee shall resign and be replaced by the individual selected by the Majority WB Holders in accordance with Article II hereof), and (iv) three (3) individuals (the "Family LP Nominees") selected by Xxxxx, as agent for the Family LP (or by the Family LP and the Permitted Transferees of the Family LP, if any, as the Family LP and such Permitted Transferees may agree between or among themselves by the affirmative vote of the holders of a majority of the shares of Company Stock owned by such persons); PROVIDED, that in the event the Family LP shall own greater than 25% of the outstanding Company Stock (calculated on a Fully Diluted Basis), then the number of persons so designated by Family LP Nominees shall be increased (and correspondingly, the number of Windward Nominees shall be decreased) such party that the number of Family LP Nominees shall be equal to the result number of directors of the Company at such time multiplied by the percentage of the outstanding Company Stock owned by the Family LP (or the Family LP and its Permitted Transferees) (calculated on a Fully Diluted Basis), rounded up to the nearest whole numbernumber and the Windward Nominees, Windward/Park Nominee and Windward/Badger Nominee shall constitute the remainder; and (y) of applying the following formula: (c) At any such time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result Family LP shall cease to own any shares of a transfer of Class A Common Stock but for so long as the Installment Note (as defined in the Recapitalization Agreement) shall not have been paid (or Class B Common Stock otherwise satisfied in full, including by Apollo to such Eligible Holderset-off), one-ninth (1/9i) seven (7) Windward Nominees, (ii) one Windward/Park Nominee, (iii) one Windward/Badger Nominee and (iv) one Family LP Nominee (who shall resign from the Board on the date that the obligations on the Installment Notes are paid or more otherwise satisfied). To effectuate the provisions of this Section 2.2, the Secretary of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common StockCompany, taken in the aggregate, or if there be no Secretary such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders other officer of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by as the Board may appoint to fulfill the stockholders for election as a director at duties of Secretary (the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein"Secretary"), an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained hereinrecord, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation not give effect to, any vote or consent contrary to, or inconsistent with, the terms of this Section 2.2. The Windward Nominees, the Windward/Park Nominee, the Windward/Badger Nominee and the Family LP Nominees are sometimes collectively referred to establish an Executive Committee)herein as the "Nominees" and individually as a "Nominee."

Designation of Directors. (a) Following So long as any principal amount of this Note or the automatic conversion Other Notes remains outstanding, the Majority Holders shall be entitled, from time to time, to select a Person who shall not be an Affiliate of Axxxxxxxx and who shall have the right to designate by notice to the Company up to two persons (the first of whom, subject to his completion of the D&O Questionnaire and the prompt completion of background and other reasonable due diligence investigations to the Company’s reasonable satisfaction, shall initially be Rxxx Auf Der Hyde) to serve from time to time as members of the Board of Directors, provided, that each of such person(s) designated to serve as a member of the Board of Directors (1) so long as Axxxxxxxx holds all Class B Common Stock or any portion of this Note or any Other Note, is reasonably acceptable to Axxxxxxxx and at least one other holder of this Note or any Other Notes and (2) is not an Affiliate of Axxxxxxxx. Any person(s) so designated for election to the Board of Directors shall enter into Class A Common Stock an agreement with Axxxxxxxx on such terms as shall be acceptable to Axxxxxxxx pursuant to subsection (c)(iii)(Bwhich such person(s) of Article FOURTH shall agree not to share or convey any non-public information such person(s) learns in its role as a director. The Company shall, from time to time, use its best efforts to cause the election of the Certificate person(s) so designated to serve as members of Incorporation: the Board of Directors as promptly as possible. If for any reason under applicable law or the Company’s By-laws any such designee cannot immediately be elected to the Board of Directors, then until such time as such person(s) is elected to the Board of Directors (i) the Board person(s) so designated shall adopt an amendment have the right to the Bylaws be present at all meetings of the Company establishing nine as the number Board of directors which Directors, but shall constitute the whole Board and not be entitled to vote on any action taken at such meeting, (ii) the Class B Directors serving on Company shall provide notice to such person(s) of the date, place and time of each such meeting at least the same period in advance as the shortest such notice provided to any member of the Board immediately preceding of Directors, (iii) the Company shall provide such conversion shall continue person(s) all agendas and other information and materials provided to serve on the Board of Directors contemporaneously with the time the Company provides the same to the Board of Directors and (iv) the Company shall provide to such person(s) copies of each proposed unanimous written consent of the Board of Directors which consent is given to all members of the Board of Directors for execution by the directors during such period, at the same time such written consent is given to all members of the Board of Directors. In case any person designated as Class A a member of the Board of Directors until their successors are duly elected pursuant to this Section 3.16 shall resign, die, be removed from office or otherwise be unable to serve, the Majority Holders shall be entitled to appoint a Person to designate a replacement pursuant to, and qualified or until their earlier deathin accordance with, resignation or removalthis Section 3.16. (b) From and after In the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time event that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting approval of the stockholders of the Company held shall be required to elect directors; PROVIDEDthe person(s) designated to serve as a member of the Board of Directors pursuant to this Section 3.16, HOWEVERthe Company shall call a meeting of stockholders to be held within 90 days after the date such person(s) is so designated, that shall prepare and file with the maximum number SEC as promptly as practical, but in no event later than 30 days after such date, preliminary proxy materials which set forth a proposal to seek the approval of persons so designated the election of such designee(s), and the Board of Directors shall recommend approval thereof by the Company’s stockholders. The Company shall mail and distribute its proxy materials for such party shall be equal stockholder meeting to its stockholders at least 30 days prior to the result (rounded date of such stockholder meeting and shall actively solicit proxies to vote for the nearest whole number) election of applying the following formula:such designee(s). (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board Notwithstanding anything herein to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directorscontrary, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director Axxxxxxxx holds all or any portion of this Note or any Other Note, the rights and obligations under Delaware law (it being agreed that being an employee this Section 3.16 may not be waived or otherwise a representative amended without the consent of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)Axxxxxxxx.

Designation of Directors. (a) Following the automatic conversion The Class C Stockholders agree to vote all of all their shares of Class B C Common Stock into Class and to take all other actions necessary to cause the election and continuance in office as directors the following (the “Outside Directors”): (i) One (1) individual nominated by Accel Partners (“Accel”); and (ii) Three (3) individuals nominated by the Series D Preferred Stockholders, one of whom shall be designated by Chase Capital Partners and its Affiliates (collectively “Chase”), one of whom shall be designated by MC Venture Partners (“MC Partners”) and one of whom shall be designated by Pacific; provided, however, that if one of the foregoing named Persons fails to deliver a Commitment as defined in and pursuant to the Securities Purchase Agreement for the purchase of Preferred Stock in an amount at least equal to $35 million or such named Person fails to purchase the Series D Preferred Stock in accordance with such Person’s Commitment (in either case, a “Commitment or Funding Failure”), then the foregoing right of such named Person to nominate an individual as a director of the Board pursuant to this subsection (c) shall be rescinded and cancelled and not become effective, except as otherwise provided below; provided, further however, that if within ten (10) Business Days following the delivery of notice of the occurrence of an Optional Revocation Date (as defined in the Securities Purchase Agreement), if one of the foregoing named Persons revokes such Person’s remaining Commitment to fund the purchase of Series D Preferred Stock (a “Commitment Revocation”), then, except as otherwise provided below, the foregoing right of such named Person to nominate an individual as a director of the Board pursuant to this subsection (c) shall terminate, cease and be of no further force and effect and the individual then serving as a director of the Board nominated by such Person shall immediately resign such director’s position on the Board as of the close of business on such tenth (10th) Business Day following the Optional Revocation Date. A Common Stock Person, whose right to nominate a director is terminated pursuant to the previous sentence, shall have the right to designate an individual (including the resigning individual) as a board observer pursuant to subsection (c)(iii)(Bd) below. In the case of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment either a Commitment or Funding Failure or a Commitment Revocation pursuant to the Bylaws of preceding sentence, the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B remaining Outside Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, option to notify reassign the Company of such party's designee or designees foregoing right and to be included in the slate of nominees substitute and name another significant Stockholder to be recommended by the Board to the stockholders for election nominate an individual as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to this subsection 5(b) or 5(c) (c). In the event that, as a result of the foregoing provisions, there are no remaining Outside Directors, then the Stockholder who has the single largest equity interest in the Company, which is attributable to the ownership of the Series D Preferred Stock purchased pursuant to the Securities Purchase Agreement, shall cease be entitled to serve nominate an individual as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to this subsection 5(b(c); provided, 5(c)however, 5(d) or 5(e). Each party and all its Affiliates, that such director shall not be included as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted an Outside Director for the purpose purposes of determining approving any actions subject to a “Supermajority” approval under Section 3.1. Notwithstanding any provision to the presence contrary herein, the right of a quorum at such meetings. each Stockholder, which initially includes Accel, Chase, MC Partners and Pacific, to designate for nomination one director, respectively, pursuant to this subsection (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(bc) shall (i) serve on the Compensation Committee of the Board continue hereunder only so long as such director Stockholder (together with its Affiliates or subsidiaries) owns Series D Preferred Stock and Class C Common Stock that is an independent director under Delaware law equal to at least (it being agreed that being an employee i) 4% of the fully diluted equity of the Company or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, 50% of the Board total Series D Preferred Stock (it being agreed that or the Company shall be under no obligation Class C Common Stock issuable upon conversion thereof) purchased by such Person pursuant to establish an Executive Committee)the Securities Purchase Agreement.

Designation of Directors. (a) Following The Merger Agreement provides that, promptly upon the automatic conversion purchase of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) and payment for Shares by Parent or any of Article FOURTH its subsidiaries which represents at least a majority of the Certificate outstanding Shares (on a fully diluted basis), Parent will be entitled to designate such number of Incorporation: (i) the Board shall adopt an amendment directors, rounded up to the Bylaws of next whole number, on the Company establishing nine Board of Directors as is equal to the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more product of the total number of directors on such board (giving effect to the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, directors designated by Parent pursuant to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended this sentence) multiplied by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, percentage that the maximum aggregate number of persons so designated Shares beneficially owned by such party shall be equal Xxxxxx and Merger Subsidiary bears to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of Shares then outstanding. The Company will, upon request of Parent, use its reasonable best efforts promptly either to increase the then issued size of the Company Board of Directors or to secure the resignations of incumbent directors, or both, and outstanding shares use its reasonable best efforts to cause Xxxxxx's designees to be so elected or appointed to the Company Board of Class A Common Stock Directors. The Company's obligation to elect or appoint Xxxxxx's designees to the Company Board of Directors is subject to compliance with Section 14(f) of the Exchange Act and Class B Common Stock, taken Rule 14f-1 promulgated thereunder. The Merger Agreement further provides that in the aggregate, such Eligible Holder shall have the option, in its sole discretion, event that Xxxxxx's designees are elected to notify the Company Board of such Eligible Holder's designee Directors, until the Effective Time, the Company will cause the Company Board of Directors to be included in have at least three directors who were directors on June 28, 2000 (the slate of nominees "Independent Directors"), provided that if any Independent Directors cannot serve due to be recommended by death or disability, the Board remaining Independent Directors (or Independent Director, if there is only one remaining) are entitled to the stockholders for election designate another person or persons who served as a director at the next meeting of stockholders of the Company held on June 28, 2000, to elect directorsfill such vacancies or, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A if no Independent Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d)then remains, the Board shall recommend other directors will designate three persons who were directors on June 28, 2000, to the stockholders of the Company for election as a director any person designated by fill such vacancies. Once Parent's designees constitute a majority of the Company Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are votedof Directors, at any meeting the affirmative vote of a majority of the stockholders Independent Directors is required to (1) amend or terminate the Merger Agreement by the Company, (2) exercise or waive any of the Company's rights, benefits or remedies under the Merger Agreement, (3) amend the Certificate of Incorporation or By-laws of the Company, or (4) take any other action of the Company held Board of Directors under or in connection with the Merger Agreement; provided, that if there are no Independent Directors as a result of such persons' deaths, disabilities or refusal to elect directorsserve, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall such actions may be present, in person or effected by proxy, at all meetings of stockholders majority vote of the entire Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose Board of determining the presence of a quorum at such meetingsDirectors. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).

Designation of Directors. Until the date on which all Warrants have been sold or otherwise transferred by the Initial Stockholder (aother than to an Affiliate) Following or the automatic conversion of all Class B underlying Common Stock into Class A has been sold or transferred (other than to an Affiliate), the Initial Stockholder (or an Affiliate of the Initial Stockholder in the event the Initial Stockholder sells or otherwise transfers all or a part of the Warrants or the underlying Common Stock pursuant to subsection an Affiliate) shall have the right to designate to the Board two (c)(iii)(B2) directors, the identity of Article FOURTH such director designees to be at the discretion of the Certificate Initial Stockholder so long as any such director designees are not restricted from serving on the board of Incorporation: directors of a U.S. public company and shall satisfy the corporate governance guidelines of the Company and NASDAQ; provided, however, that following any (x) transfer by any Affiliate of the Initial Stockholder and/or the Initial Stockholder, as applicable, of the Notes or (y) any repayment of the Notes (i) if the Board shall adopt an amendment Initial Stockholder, collectively with any of its Affiliates (including the initial holder thereof) retains the Notes representing between 65% and 35% of the Original Principal Amount (calculated by reference to the Bylaws then principal amount of the Company establishing nine as the number of directors which shall constitute the whole Board Notes plus accrued and (ii) the Class B Directors serving on the Board immediately preceding unpaid interest held by any such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Affiliate of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of Initial Stockholder and/or the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially OwnsInitial Stockholder, as applicable), the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder Initial Stockholder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(bone (1) or 5(c) shall cease to serve as a director (for any reasonthe avoidance of doubt, a successor shall be designated and nominated in if the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d)amounts so retained exceed 65%, the Board Initial Stockholder shall recommend retain the right to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated designate to the Board pursuant to subsection 5(b), 5(c), 5(dtwo (2) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independentdirectors) and (ii) serve on if the Executive Committee, if any, Initial Stockholder retains the Notes representing less than 35% of the Board Original Principal Amount (it being agreed that calculated by reference to the Company then principal amount of the Notes plus accrued and unpaid interest held by any such Affiliate of the Initial Stockholder and/or the Initial Stockholder, as applicable), then the Initial Stockholder’s designation right will terminate. The Initial Stockholder’s right to designate directors shall not be under no obligation transferrable (other than to establish an Executive Committee)any commonly controlled Affiliates) without the prior written consent of the Company.

Designation of Directors. (a) Following For so long as Cable and its Affiliates continue to own in the automatic conversion of all Class B aggregate Common Stock into Class A representing at least 10% of the Company's issued and outstanding Common Stock, excluding any Common Stock issued pursuant to subsection the Company's Stock Incentive Plan or pursuant to any other employee benefit plan or arrangement now existing or hereinafter adopted (c)(iii)(Bthe "Minimum Shares"), the Company will take all action necessary to, and further agrees to take all action necessary to cause its Board of Directors to, nominate and support the nomination of one individual designated by Cable (who shall be a director or senior executive of Xxxxxxx or any subsidiary of Xxxxxxx) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws for election as a director of the Company establishing nine and to solicit proxies in favor of (and otherwise recommend to its stockholders) the election of such nominee as a director. If and for so long as the number of directors which constituting the entire Board of Directors is greater than eight (8), the number of directors that Cable has the right to designate pursuant to this Section 2.2(a) shall constitute immediately be increased to two (2) and the whole Company will take all action necessary to, and further agrees to take all action necessary to cause its Board of Directors to, appoint and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removalsubsequently nominate for election an additional individual designated by Cable. (b) From and after If Cable ceases to continue to beneficially own the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of IncorporationMinimum Shares, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company will have no obligation to nominate or support the nomination of such party's designee any individual or designees to be included in the slate of nominees to be recommended individuals designated by the Board to the stockholders Cable for election as a director or directors at the next meeting of stockholders of the Company held or to elect directors. The Board solicit proxies in favor of (or otherwise recommend to its nominating committee shall include stockholders) the election of such designee nominee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula:director. (c) At In the event of the death, resignation or removal of any time a Person who has been director designated for nomination by Cable, the Company shall take all action necessary to cause another person designated by Apollo and is not otherwise Cable (who shall be a Person whose primary business is the design, construction, marketing and/or selling director or senior executive of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER"Xxxxxxx or any subsidiary of Xxxxxxx) Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election elected as a director at to fill the next meeting resulting vacancy on the Board of stockholders Directors of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through (which may include the date election of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended replacement director by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing remaining directors then in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(boffice). (d) In The Company may change the number of directors; provided that in no event shall any decrease in the number of directors by the Company or the Company's Board of Directors shorten the term of any director of the Company that a person nominated and elected to the Board was designated by Cable for nomination pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c)this Section 2.2. (e) With respect to If at any Class A Director seat on time there is a change in the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders number of the Company for election as a director any person designated by a majority outstanding shares of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned or the class of Common Stock, by it and all its Affiliates are votedreason of any reclassification, at any meeting recapitalization, split-up, combination, exchange of shares, readjustment, or if a stock dividend thereon is declared, then the stockholders number of shares of Common Stock comprising the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, Minimum Shares shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party appropriately and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetingsequitably adjusted. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).

Designation of Directors. (a) Following The Merger Agreement provides that, if Purchaser acquires at least two-thirds of the automatic conversion of all Class B Common Stock into Class A Common Stock Shares outstanding pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board Offer, Parent shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one up to such designee. Notwithstanding anything number of directors, rounded up to the contrary contained hereinnext whole number, Apollo may designate only one Person of the Board so that the designees of Parent constitute the same percentage of the Board (but in no event less than a majority) as the percentage of Shares acquired pursuant to the Offer, and the Company shall increase the size of the Board or obtain the resignations of incumbent directors as is necessary to enable such number of Parent designees to be elected. The Merger Agreement also provides that, at all times prior to the Effective Time, at least two of the members of the Board shall be Independent Directors (as defined below). Successor Independent Directors will be designated either by any remaining Independent Directors, or by the other directors, if no Independent Director remains. Subject to applicable law, the Company will take all action requested by Purchaser necessary to effect any election of such designee or Independent Director, including mailing to its shareholders an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors Information Statement in accordance with subsection 5(b). (dSection 14(f) In of the event that a person nominated Exchange Act and elected Rule 14f-1. Following the election or appointment of Xxxxxx's designees pursuant to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated foregoing and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend prior to the stockholders of the Company for election as a director any person designated Effective Time, if requested by a majority of the Board to fill Independent Directors, such seat. (f) Each party hereto designees shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it abstain from acting upon, and all its Affiliates are voted, at any meeting the approval of a majority of the stockholders Independent Directors shall be required, and shall be sufficient, to authorize any resolution with respect to the termination of the Merger Agreement by the Company, any amendment of the Merger Agreement requiring action by the Board of the Company, any extension of time for the performance of any of the obligations or other acts of Parent or Purchaser under the Merger Agreement and any waiver of compliance by Purchaser with any provision under the Merger Agreement for the benefit of the Company held to elect directorsor its shareholders. Under the Merger Agreement, for the persons nominated to "Independent Director" means any member of the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one as of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee date of the Board so long as such Merger Agreement or who is otherwise not an officer, director or affiliate of Purchaser and who is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, rules of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)AMEX.

Designation of Directors. (a) Following From and after the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Closing, each of the Certificate Shareholders shall vote its shares of IncorporationCompany Stock (to the extent entitled to vote), at each regular or special meeting of the shareholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of shareholders, and shall take all actions reasonably necessary, to ensure the election to the Board of the following individuals: (i) six (6) individuals (the Board "Windward Nominees") selected by the Windward Agent who may be affiliated with Windward, one of whom shall adopt an amendment to be the Bylaws of the Company establishing nine as the number of directors which Company's then current chief executive officer and who shall constitute the whole Board and otherwise initially be Xxxxxxx X. Xxxxx; (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. one (b1) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended individual selected by the Board to the stockholders for election as a director or directors at the next meeting holders of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board percentage interests (the "Majority WB Holders") in Windward/Badger (the "Windward/Badger Nominee"), who shall initially be Xxxx Xxxxxxx, provided, however, that in the event that at the end of any thirty consecutive day period in which the Majority WB Holders shall have failed to fill select the Windward/Badger Nominee, then the Windward Agent shall select the Windward/Badger Nominee to serve until such seat. time as the Majority WB Holders shall select an individual to serve as the Windward/Badger Nominee (fat which time the individual appointed by the Windward Agent to serve as the Windward/Badger Nominee shall resign and be replaced by the individual selected by the Majority WB Holders in accordance with Article II hereof); and (iii) Each party hereto shall take such action so long as may be required so that all Class A Common Stock Beneficially Owned by it the Majority Roll-Over Shareholders and all its Affiliates are voted, at any meeting their Permitted Transferees continue to hold 5% of the stockholders outstanding shares of Common Stock, one (1) individual (the "Majority Roll-Over Shareholders Nominee") selected by the Majority Roll-Over Shareholders, who shall initially be Xxxxxxx Xxxxxx. To effectuate the provisions of this Section 2.2, the Secretary of the Company, or if there be no Secretary such other officer of the Company held to elect directors, for the persons nominated to as the Board pursuant may appoint to subsection 5(bfulfill the duties of Secretary (the "Secretary"), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) record, and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).not

Designation of Directors. (a) Following the automatic conversion Each Member agrees that it shall vote all of all Class B such Member’s Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH Interests and any other voting Equity Securities of the Certificate Company over which such Member has voting control and shall take all other actions reasonably necessary or desirable within such Member’s control (whether in such Member’s capacity as a Member, Director, member of Incorporation: a Board committee or Officer or otherwise, and including attendance at meetings in person or by proxy for purposes of obtaining a Quorum and execution of written consents in lieu of meetings), and the Company shall take all necessary and desirable actions within its control (including calling special Board and Member meetings), so that the following Persons shall be elected to the Board:‌ (i) up to seven (7) representatives designated by NYSE MKT who shall initially be as specified on Schedule 8.1(d)(i) and, after the Initial Effective Date, such other Persons who are designated by NYSE MKT from time to time pursuant to this clause (i), one of whom may, in NYSE MKT’s sole discretion, be the Chief Executive Officer; provided that (x) upon any expansion of the Board to include any Independent Directors pursuant to Section 8.1(c), for so long as the aggregate Economic Common Interest Percentage of NYSE MKT together with its Affiliates equals or exceeds fifteen percent (15%), NYSE MKT shall adopt an amendment have the right to designate a number of additional Directors equal to the Bylaws aggregate number of Independent Directors added to the Board pursuant to Section 8.1(c) or, if fewer, the largest number of‌ additional Directors allowable under applicable Law, and the authorized number of Directors shall be correspondingly increased and (y) upon any expansion of the Company establishing nine as Board to include any additional Directors appointed by Members other than NYSE MKT pursuant to this Agreement, NYSE MKT shall have the right to designate a number of directors which shall constitute additional Directors equal to the whole aggregate number of Directors so added to the Board and the authorized number of Directors shall be correspondingly increased; provided, further, that each individual designated by NYSE MKT to serve as a Director shall be reasonably acceptable to the Founding Firms; and provided, further, notwithstanding anything to the contrary in this Agreement, that NYSE MKT shall appoint at least such number (iinot to exceed seven (7) Directors or such higher number as may result from the Class B Directors serving on expansion of the Board immediately preceding such conversion shall continue pursuant to serve on clause (y)) as is necessary to ensure that no single Founding Firm's designees to the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. constitute twenty percent (b20%) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more greater percentage of the total number of Directors on the then issued and outstanding shares of Class A Common StockBoard; and (ii) one (1) representative designated by each Founding Firm (other than Barclays) authorized to so designate a representative pursuant to this Section 8.1(d)(ii) (a “Designating Founding Firm”), who shall initially be as specified on Schedule 8.1(d)(ii) and, after the Initial Effective Date, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so other Person who is designated by such party Designating Founding Firm from time to time pursuant to this clause (ii); provided that each individual designated by the Founding Firms to serve as a Director shall be equal reasonably acceptable to NYSE MKT; provided, further, that if such Designating Founding Firm’s Economic Common Interest Percentage falls below, in the result case of Xxxxxxx Xxxxx and Citadel, five percent (rounded to 5%), and in all other cases, three percent (3%), the nearest whole number) of applying the following formula: (c) At any time a Person who has been individual designated by Apollo such Designating Founding Firm shall immediately cease to be a Director, such Founding Firm shall cease to be a Designating Founding Firm, and is not otherwise a Person whose primary business is the designauthorized number of Directors shall be reduced accordingly; provided, constructionfurther, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or that if such Designating Founding Firm’s Class B Common Stock Interests are subject to redemption, the Board (A) may require the individual designated by Apollo such Designating Founding Firm to resign, (B) may permanently, or for such Eligible Holdershorter period as the Board may designate, disqualify such Designating Founding Firm from designating representatives to the Board pursuant to this Section 8.1(d)(ii), and (C) pursuant to clause (A) or (B), reduce the authorized number of Directors accordingly; provided that the affected Director shall not be authorized to participate in any such decision by the Board.‌ (iii) In the event the Board is expanded to include Independent Directors pursuant to Section 8.1(c) and the aggregate Economic Common Interest Percentage of NYSE MKT together with its Affiliates equals or exceeds fifteen percent (15%), NYSE MKT shall designate one-ninth (1/9) or more half of the total number of Independent Directors to be so included, in consultation with the then issued Founding Firms, and outstanding shares the Founding Firms shall designate one-half of Class A the total number of Independent Directors to be so included, in consultation with NYSE MKT; provided that if the number of Independent Directors to be so included is odd, NYSE MKT shall designate a number of Independent Directors that is equal to the number of Independent Directors designated by the Founding Firms plus one; provided further that if (A) two or fewer Members have the right to designate a Director pursuant to Section 8.1(d)(ii) or (B) the aggregate Economic Common Stock and Class B Common StockInterest Percentages owned by all Founding Firms falls below fifteen percent (15%), taken in the aggregate, such Eligible Holder NYSE MKT shall have the optionexclusive right to designate all of the Independent Directors. The Independent Directors designated by NYSE MKT and the Founding Firms shall be subject to approval by a Supermajority Vote of the Board. In the event that the aggregate Economic Common Interest Percentage of NYSE MKT together with its Affiliates is less than fifteen percent (15%), in its sole discretionthe Independent Directors shall be appointed by mutual agreement of NYSE MKT and a majority of the Founding Firms. (iv) If and for so long as NYSE MKT’s then-current Economic Common Interest Percentage is less than fifteen percent (15%), the number of NYSE MKT Directors shall be decreased to notify a number equal to the Company then-current number of such Eligible Holder's designee to be included in Founding Firm Directors, the slate aggregate number of nominees to be recommended by representatives of the Board to be designated by NYSE MKT pursuant to this Section 8.1(d) shall be decreased accordingly, and the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through Directors shall be reduced accordingly, until such time as either (x) one or more Founding Firms become eligible to designate a Director, in which case the date aggregate number of such meeting. The Board or its nominating committee shall include such designee in the slate representatives of nominees to be recommended by the Board to be designated by NYSE MKT pursuant to this Section 8.1(d) shall simultaneously be increased to a number equal to the stockholders for election as a director at number of Founding Firm Directors, or (y) NYSE MKT’s then-current Economic Common Interest Percentage again equals or exceeds fifteen percent (15%), in which case the next meeting aggregate number of representatives of the stockholders of the Company held Board to elect directors. Notwithstanding anything be designated by NYSE MKT pursuant to this Section 8.1(d) shall be increased to a number equal to the contrary contained hereinnumber of Founding Firm Directors plus one (1), an Eligible Holder and, in each case, the number of Directors shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b).increased accordingly.‌ (dv) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directorstime has any Subsidiaries, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)ensure that the composition of the board of directors (or similar governing body) of such Subsidiary shall mirror the composition of the Board, unless the Board, by a Supermajority Vote, determines otherwise.

Designation of Directors. (a) Following the automatic conversion The Class A Stockholders agree to vote all of all Class B Common Stock into their Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate Company and to take all other actions necessary to cause the election of Incorporationup to five directors to the Board of Directors in the following manner: (i) the Board shall adopt an amendment up to the Bylaws of the Company establishing nine as the number of two directors which shall constitute the whole Board and designated by Xxxxxxxx, (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue up to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a one director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal Xxxx, and (iii) up to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been two directors jointly designated by Apollo Xxxxxxxx and is not otherwise a Person whose primary business is Xxxx (collectively, the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock Directors"). The Class A Stockholders shall vote all their Class A Common Stock to elect the individuals so designated to be directors. If the Class A Stockholder or Class B A Stockholders that designated a particular director give written notice to the other Class A Stockholders of a desire to remove that director, the Class A Stockholders shall vote all their Class A Common Stock in favor of removing that director. If for any reason any director designated by Apollo the Class A Stockholders ceases to serve as a director, the Class A Stockholder or Class A Stockholders that designated that director shall promptly designate an individual (who is legally qualified as defined from time to time by the FCC) to fill the vacancy so created for the unexpired term of such Eligible Holder, one-ninth (1/9) or more of prior director and the total number of the then issued and outstanding Class A Stockholders shall vote all their shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (dthis Section 2.1(b) In for the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be individual designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) the vacancy. Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are votedDirector shall have one vote on each matter submitted to a vote of the Board of Directors; provided, that if at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all time there are less than five Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by ApolloDirectors, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve the Class A Common Stock Directors collectively shall be entitled to cast five votes on the Compensation Committee each matter submitted to a vote of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) Directors and (ii) serve on each Class A Common Stock Director shall be entitled to cast a number of votes equal to a fraction, the Executive Committeenumerator of which shall be equal to five, if any, and the denominator of which shall be equal to the total number of Class A Common Stock Directors then in office as of the time a given vote of the Board (it being agreed of Directors is taken. The Class A Common Stock Directors shall be designated as provided in Section 2.2(c) hereof; provided that the Company foregoing Board voting rights of each Class A Common Stock Director shall be under subject to any applicable provisions of the Company's By-laws, the Charter and Delaware law, as applied with Delaware law controlling any conflicting provisions of the Company's By-laws, the Charter and this Agreement, but in no obligation event, until a Class A Voting Termination Event shall the Class A Common Stock Directors have a right to establish an Executive Committee)vote less than 50.1% of the voting interests of the Board of Directors on all matters.

Designation of Directors. (a) Following the automatic conversion The Class C Stockholders agree to vote all of all their shares of Class B C Common Stock into and to take all other actions necessary to cause the election or appointment and continuance in office as the Class A C Common Stock Directors the following: (i) One (1) individual nominated by Accel Partners (together with its Affiliates, “Accel”); (ii) One (1) individual nominated by MC Venture Partners (together with its Affiliates, “MC Partners”); and (iii) One (1) individual nominated by the Series D Preferred Stockholders; provided, that each of the Class C Common Stock Directors and each of the Board Observers, who in each case is serving in such role immediately prior to such nomination, shall have the right to select one name of an individual to be considered for such nomination by the Series D Preferred Stockholders; For purposes of this Stockholders Agreement (including without limitation the supermajority voting rights under Section 3.1 of the Stockholders Agreement), the “Outside Directors” shall include each of the directors elected or appointed pursuant to the nomination by Accel and MC Partners. The director elected or appointed pursuant to the nomination by the Series D Preferred Stockholders pursuant to clause (iii) above shall not be included as an Outside Director for purposes of this Stockholders Agreement. Notwithstanding any provision to the contrary herein, if MC Partners fails to deliver a Commitment as defined in and pursuant to the Securities Purchase Agreement AMENDMENT NO. 2 TO AMENDED AND for the purchase of Preferred Stock in an amount at least equal to $35 million or MC Partners fails to purchase the Series D Preferred Stock in accordance with its Commitment for three years from the date of the Subsequent Closing (in either case, a “Commitment or Funding Failure”), then the foregoing right of MC Partners to nominate an individual as a director of the Board pursuant to this subsection (c) shall be rescinded and cancelled and not become effective, except as otherwise provided below; provided, further however, that if on or before January 8, 2001, MC Partners revokes its remaining Commitment to fund the purchase of Series D Preferred Stock (a “Commitment Revocation”), then, except as otherwise provided below, the foregoing right of MC Partners to nominate an individual as a director of the Board pursuant to this subsection (c) shall terminate, cease and be of no further force and effect and the individual then serving as a director of the Board nominated by MC Partners shall immediately resign such director’s position on the Board as of the close of business on January 8, 2001. If MC Partners right to nominate a director is terminated pursuant to the previous sentence, then MC Partners shall have the right to designate an individual (including the resigning individual) as a Board Observer pursuant to subsection (c)(iii)(Bd) below. In the case of Article FOURTH either a Commitment or Funding Failure or a Commitment Revocation pursuant to the second preceding sentence, the remaining Outside Director shall reassign the foregoing right and to substitute and name of the Certificate of Incorporation: (i) the Board shall adopt largest Series D Preferred Stockholder to nominate an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election individual as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to this subsection 5(b) or 5(c) shall cease to serve (c). In the event that, as a director for any reasonresult of the foregoing provisions, a successor there are no remaining Outside Directors, then the Stockholder who has the single largest equity interest in the Company, which is attributable to the ownership of the Series D Preferred Stock purchased pursuant to the Securities Purchase Agreement, shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant entitled to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election nominate an individual as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A C Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting Director of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to this subsection 5(b), 5(c), 5(d) or 5(e(c). Each party Notwithstanding any provision to the contrary herein, the right of each Stockholder, on an individual basis, which initially includes Accel and all its AffiliatesMC Partners, to designate for nomination one director as Class A Stockholdersan Outside Director, shall be presentrespectively, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. pursuant to this subsection (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(bc) shall (i) serve on the Compensation Committee of the Board continue hereunder only so long as such director Stockholder (together with its Affiliates or subsidiaries) owns Series D Preferred Stock and Class C Common Stock that is an independent director under Delaware law equal to at least (it being agreed that being an employee i) 4% of the fully diluted equity of the Company or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, 50% of the Board total Series D Preferred Stock (it being agreed that or the Company shall be under no obligation Class C Common Stock issuable upon conversion thereof) purchased by such Person pursuant to establish an Executive Committee)the Securities Purchase Agreement.

Designation of Directors. (a) Following So long as any principal amount of this Note or the automatic conversion Other Notes remains outstanding, the Majority Holders shall be entitled, from time to time, to select a Person who shall not be an Affiliate of Xxxxxxxxx and who shall have the right to designate by notice to the Company up to two persons (the first of whom shall initially be Xxxxx Xxxxxxxxx) to serve from time to time as members of the Board of Directors, provided, that each of such person(s) designated to serve as a member of the Board of Directors (1) so long as Xxxxxxxxx holds all Class B Common Stock or any portion of this Note or any Other Note, is reasonably acceptable to Xxxxxxxxx and at least one other holder of this Note or any Other Notes and (2) is not an Affiliate of Xxxxxxxxx. Any person(s) so designated for election to the Board of Directors shall enter into Class A Common Stock an agreement with Xxxxxxxxx on such terms as shall be acceptable to Xxxxxxxxx pursuant to subsection (c)(iii)(Bwhich such person(s) of Article FOURTH shall agree not to share or convey any non-public information such person(s) learns in its role as a director. The Company shall, from time to time, use its best efforts to cause the election of the Certificate person(s) so designated to serve as members of Incorporation: the Board of Directors as promptly as possible. If for any reason under applicable law or the Company’s By-laws any such designee cannot immediately be elected to the Board of Directors, then until such time as such person(s) is elected to the Board of Directors (i) the Board person(s) so designated shall adopt an amendment have the right to the Bylaws be present at all meetings of the Company establishing nine as the number Board of directors which Directors, but shall constitute the whole Board and not be entitled to vote on any action taken at such meeting, (ii) the Class B Directors serving on Company shall provide notice to such person(s) of the date, place and time of each such meeting at least the same period in advance as the shortest such notice provided to any member of the Board immediately preceding of Directors, (iii) the Company shall provide such conversion shall continue person(s) all agendas and other information and materials provided to serve on the Board of Directors contemporaneously with the time the Company provides the same to the Board of Directors and (iv) the Company shall provide to such person(s) copies of each proposed unanimous written consent of the Board of Directors which consent is given to all members of the Board of Directors for execution by the directors during such period, at the same time such written consent is given to all members of the Board of Directors. In case any person designated as Class A a member of the Board of Directors until their successors are duly elected pursuant to this Section 3.16 shall resign, die, be removed from office or otherwise be unable to serve, the Majority Holders shall be entitled to appoint a Person to designate a replacement pursuant to, and qualified or until their earlier deathin accordance with, resignation or removalthis Section 3.16. (b) From and after In the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time event that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting approval of the stockholders of the Company held shall be required to elect directors; PROVIDEDthe person(s) designated to serve as a member of the Board of Directors pursuant to this Section 3.16, HOWEVERthe Company shall call a meeting of stockholders to be held within 90 days after the date such person(s) is so designated, that shall prepare and file with the maximum number SEC as promptly as practical, but in no event later than 30 days after such date, preliminary proxy materials which set forth a proposal to seek the approval of persons so designated the election of such designee(s), and the Board of Directors shall recommend approval thereof by the Company’s stockholders. The Company shall mail and distribute its proxy materials for such party shall be equal stockholder meeting to its stockholders at least 30 days prior to the result (rounded date of such stockholder meeting and shall actively solicit proxies to vote for the nearest whole number) election of applying the following formula:such designee(s). (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board Notwithstanding anything herein to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directorscontrary, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b). (d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director Xxxxxxxxx holds all or any portion of this Note or any Other Note, the rights and obligations under Delaware law (it being agreed that being an employee this Section 3.16 may not be waived or otherwise a representative amended without the consent of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)Xxxxxxxxx.

Designation of Directors. Each holder of Company Shares hereby agrees to cast all votes to which such holder is entitled in respect of the Company Shares, whether at any annual or special meeting, by written consent or otherwise: (a) Following so as to cause the automatic conversion of Company’s directors, at all Class B Common Stock into Class A Common Stock pursuant times prior to subsection (c)(iii)(B) of Article FOURTH the first anniversary of the Certificate of Incorporationdate on which the Company ceases to be a Controlled Company, to consist of: (i) five THL Directors, (ii) three Xxxx Directors, (iii) one Providence Director, (iv) one Lexa Director, (v) one director who at all times shall be the Board shall adopt an amendment to the Bylaws then current chief executive officer of the Company establishing nine (the “CEO Director”), who shall initially be Xxxxx Xxxxxxxx, Xx., with Xx. Xxxxxxxx also to serve as Chairman of the Board during his tenure as the CEO Director, and (vi) three additional directors (the “Independent Directors”); (b) so as to cause the Company’s directors, at all times on or after the first anniversary of the date on which the Company ceases to be a Controlled Company, to consist of such directors as shall have been designated pursuant to such procedures as the Investor Groups shall agree from time to time, subject to the requirements of applicable law (including the rules of the Commission and any exchange upon which equity securities of the Company might be listed); and (c) so as to elect as the Company’s directors: (i) the number of THL Directors as determined under or in accordance with procedures established pursuant to this Section 2.1.2, designated as follows: (A) first, one director designated by Xxxxxx X. Xxx Equity Fund V, L.P., if it then holds any Company Shares, (B) then, one director designated by Xxxxxx X. Xxx Parallel Fund V, L.P., if it then holds any Company Shares, (C) then, one director designated by THL WMG Equity Investors, L.P., if it then holds any Company Shares and (D) then, such other directors which shall constitute designated by the whole Board and Majority THL Investors as the remaining THL Directors; (ii) the Class B number of Xxxx Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified determined under or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock in accordance with procedures established pursuant to subsection this Section 2.1.2, designated as follows: (c)(iii)(BA) first, one director designated by Xxxx Capital VII Coinvestment Fund, L.P., if (1) it then holds any Company Shares or (2) it is then the sole member of Article FOURTH of Xxxx Capital VII Coinvestment Fund, LLC and the Certificate of Incorporationlatter then holds any Company Shares, at any time it being understood and agreed that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common StockXxxx Capital VII Coinvestment Fund, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees L.P. is intended to be included in a third party beneficiary of this Section 2.1.2(c)(ii)(A) and the slate related provisions of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee Section 2.2 and shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one enforce such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term provisions of this Agreement; PROVIDEDAgreement as though it were a party hereto, HOWEVERand (B) then, that nothing in this subsection 5(csuch other directors designated by the Majority Xxxx Investors as the remaining Xxxx Directors; (iii) shall limit Apollo's other rights to designate directors the number of Providence Directors as determined under or in accordance with subsection 5(b).procedures established pursuant to this Section 2.1.2, designated by Providence Equity Partners IV, L.P., if it then holds any Company Shares, otherwise by the Majority Providence Investors; (div) In the event that a person nominated and elected to the Board number of Lexa Directors as determined under or in accordance with procedures established pursuant to subsection 5(bthis Section 2.1.2, designated by Music Capital Partners, L.P., if it then holds any Company Shares, otherwise by the Majority Lexa Investors; (v) the CEO Director; and (vi) the number of Independent Directors as determined under or 5(c) shall cease in accordance with procedures established pursuant to serve as a director for any reasonthis Section 2.1.2, a successor each of whom shall be designated and nominated in unanimously by the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority members of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board elected pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall clauses (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law through (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independentv) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)above.

Designation of Directors. Each holder of Company Shares hereby agrees to cast all votes to which such holder is entitled in respect of the Company Shares, whether at any annual or special meeting, by written consent or otherwise: (a) Following so as to cause the automatic conversion of Company’s directors, at all Class B Common Stock into Class A Common Stock pursuant times prior to subsection (c)(iii)(B) of Article FOURTH the first anniversary of the Certificate of Incorporationdate on which the Company ceases to be a Controlled Company, to consist of: (i) five THL Directors, (ii) three Bain Directors, (iii) one Providence Director, (iv) one Lexa Director, (v) one director who at all times shall be the Board shall adopt an amendment to the Bylaws then current chief executive officer of the Company establishing nine (the “CEO Director”), who shall initially be Xxxxx Xxxxxxxx, Xx., with Xx. Xxxxxxxx also to serve as Chairman of the Board during his tenure as the CEO Director, and (vi) three additional directors (the “Independent Directors”); (b) so as to cause the Company’s directors, at all times on or after the first anniversary of the date on which the Company ceases to be a Controlled Company, to consist of such directors as shall have been designated pursuant to such procedures as the Investor Groups shall agree from time to time, subject to the requirements of applicable law (including the rules of the Commission and any exchange upon which equity securities of the Company might be listed); and (c) so as to elect as the Company’s directors: (i) the number of THL Directors as determined under or in accordance with procedures established pursuant to this Section 2.1.2, designated as follows: (A) first, one director designated by Xxxxxx X. Xxx Equity Fund V, L.P., if it then holds any Company Shares, (B) then, one director designated by Xxxxxx X. Xxx Parallel Fund V, L.P., if it then holds any Company Shares, (C) then, one director designated by THL WMG Equity Investors, L.P., if it then holds any Company Shares and (D) then, such other directors which shall constitute designated by the whole Board and Majority THL Investors as the remaining THL Directors; (ii) the Class B number of Bain Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified determined under or until their earlier death, resignation or removal. (b) From and after the automatic conversion of all Class B Stock into Class A Stock in accordance with procedures established pursuant to subsection this Section 2.1.2, designated as follows: (c)(iii)(BA) first, one director designated by Xxxx Capital VII Coinvestment Fund, L.P., if (1) it then holds any Company Shares or (2) it is then the sole member of Article FOURTH of Xxxx Capital VII Coinvestment Fund, LLC and the Certificate of Incorporationlatter then holds any Company Shares, at any time it being understood and agreed that Xxxxx Xxxxxxx or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common StockXxxx Capital VII Coinvestment Fund, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees L.P. is intended to be included in a third party beneficiary of this Section 2.1.2(c)(ii)(A) and the slate related provisions of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee Section 2.2 and shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula: (c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one enforce such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term provisions of this Agreement; PROVIDEDAgreement as though it were a party hereto, HOWEVERand (B) then, that nothing in this subsection 5(csuch other directors designated by the Majority Bain Investors as the remaining Bain Directors; (iii) shall limit Apollo's other rights to designate directors the number of Providence Directors as determined under or in accordance with subsection 5(b).procedures established pursuant to this Section 2.1.2, designated by Providence Equity Partners IV, L.P., if it then holds any Company Shares, otherwise by the Majority Providence Investors; (div) In the event that a person nominated and elected to the Board number of Lexa Directors as determined under or in accordance with procedures established pursuant to subsection 5(bthis Section 2.1.2, designated by Music Capital Partners, L.P., if it then holds any Company Shares, otherwise by the Majority Lexa Investors; (v) the CEO Director; and (vi) the number of Independent Directors as determined under or 5(c) shall cease in accordance with procedures established pursuant to serve as a director for any reasonthis Section 2.1.2, a successor each of whom shall be designated and nominated in unanimously by the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c). (e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority members of the Board to fill such seat. (f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board elected pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings. (g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall clauses (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law through (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independentv) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee)above.