Common use of Director Designees Clause in Contracts

Director Designees. (a) The Company and the Board agree to nominate the Icahn Designees for election as directors of the Board at the 2014 Meeting and to include the Icahn Designees in the Company’s slate of directors and in its proxy statement for the 2014 Meeting. In addition to the Icahn Designees, the Board shall nominate nine (9) other directors for election or re-election at the 2014 Meeting (the “Company Nominees”). The Company and the Board agree to use commercially reasonable efforts to cause the election of the Icahn Designees to the Board (including soliciting proxies to vote for the Icahn Designees, recommending that the Company’s shareholders vote in favor of the election of the Icahn Designees, and otherwise supporting each of the Icahn Designees for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Company Nominees in the aggregate). The Board shall also re-nominate two (2) of the Company's existing directors (the “Additional Company Candidates”) and the Shareholders shall be entitled to nominate and the Company and the Board agree to nominate, subject to the approval of the Board (such approval not to be unreasonably withheld, conditioned or delayed, and if such approval is not granted by the Board, the Shareholders shall be entitled to continue designating a candidate until such approval is granted), one (1) additional candidate (the “Additional Shareholders Candidate” and, together with the Additional Company Candidates, the “Additional Candidates”) for election at the 2014 Meeting; provided, however, that the agenda item to elect the Additional Candidates shall be conditioned on (x) the Board Reduction Proposal not being validly approved and (y) a shareholder of the Company validly nominating one or more directors (other than the Icahn Designees or their Replacements) for election at the 2014 Meeting. If the conditions set forth in clauses (x) and (y) of the preceding sentence are not satisfied, then the Company, the Board, the Shareholders and the Icahn Designees agree that the Board shall have at least three (3) vacancies and agree not to nominate any person to such vacancies. The Company shall name each of the Company Nominees, the Icahn Designees and the Additional Candidates in the proxy statement prepared, filed and delivered in connection with the 2014 Meeting, and the Company and the Board agree to use commercially reasonable efforts to cause the election of each of the Additional Candidates to the Board (subject to the conditions set forth in this Section 1.3(a)) (including soliciting proxies to vote for the Additional Shareholders Candidate, recommending that the Company’s shareholders vote in favor of the election of the Additional Shareholders Candidate, and otherwise supporting the Additional Shareholders Candidate for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Additional Company Candidates in the aggregate). The Shareholders agree to provide the Company with the information about the Additional Shareholders Candidate that is required by applicable law or is otherwise necessary for inclusion in the Company's proxy materials for the 2014 Meeting promptly after the Company requests such information from the Shareholders. The Additional Shareholders Candidate shall be deemed to be an Icahn Designee for all purposes under this Agreement. (b) In the event any Icahn Designee resigns from the Board or is rendered unable to, or refuses to, be appointed to, or for any other reason fails to serve or is not serving, on the Board, the Shareholders shall be entitled to designate, and the Company and the Board shall cause to be added as a nominee to the Board a replacement (a “Replacement”) that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, the Shareholders shall be entitled to continue designating a recommended Replacement until such proposed designee is an Acceptable Person), at the 2014 Meeting or an extraordinary general meeting of shareholders after the 2014 Meeting. The Company and the Board hereby agree to schedule and hold such extraordinary general meeting as promptly as reasonably practicable following the Shareholders’ designation of an Acceptable Person; provided that the Company shall only be required to call one extraordinary general meeting, which meeting shall be one-half at the Company's and one-half at the Shareholders' cost and expense, after the 2014 Meeting and before the termination of this Agreement for the sole purpose of allowing the Company's shareholders to vote on any such Replacement. Subject to Section 1.3(a), for the avoidance of doubt, the Shareholders shall have the right to designate two (2) nominees for election at the 2014 Meeting. Any such Replacement who becomes a Board member in replacement of the Icahn Designee or the Additional Shareholders Candidate, if applicable, shall be deemed to be an Icahn Designee for all purposes under this Agreement. Notwithstanding the foregoing, the Company and the Board agree that each of Xx. Xxxxxxxxx and Xx. Xxxxxxxx are Acceptable Persons. (c) Prior to the 2014 Meeting, the Company shall prepare and file with the SEC and disseminate to the Company’s shareholders proxy soliciting materials that comply with the obligations of the Company and the Board in this Agreement and publish the meeting notification under applicable Swiss law. If an Icahn Designee is elected by the Company’s shareholders to serve as a director on the Board at the 2014 Meeting, such Icahn Designee shall serve until the annual general meeting of shareholders of the Company in 2015 or until such Icahn Designee is required to resign, or resigns, in accordance with the terms of this Agreement, or until his earlier death, resignation or removal by shareholders in accordance with Article 705 of the Swiss Code of Obligations, the Articles and the definitive Minder Ordinance (as defined below). The Shareholders agree to provide the Company with any information about the Icahn Designees as is required to be disclosed in the Company’s proxy solicitation materials under applicable law or is otherwise necessary for inclusion of the Icahn Designees on the Company’s slate. (d) The Company shall not be obligated to include either or both of the Icahn Designees (or the Additional Shareholders Candidate, if applicable) on its slate of directors proposed for election at the Company’s annual general meeting of shareholders for any meeting other than the 2014 Meeting or an extraordinary general meeting as set forth in Section 1.3(b). (e) If the Shareholders collectively cease to beneficially own 14,423,621 or more shares of the Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence), in which case the Shareholders shall promptly (but in no event later than four (4) business days or, if earlier and required under applicable Swiss law and regulations, SIX Swiss Exchange trading days) notify the Company that it owns less than such number of shares of Common Stock, but continue to beneficially own 10,817,716 or more shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall only be obligated to include one of the Icahn Designees (as designated by the Shareholders), as well as the Additional Shareholders Candidate, if applicable, on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, if (A) (x) the Board is composed of more than eleven (11) directors, (y) both Icahn Designees are members of the Board and (z) the Additional Shareholders Candidate is a member of the Board, then one of such persons, as designated by the Shareholders, agrees to, and the Shareholders agree to cause such person, to promptly resign from the Board (such that the Shareholders would continue to have two designees on the Board) or (B) (x) the Board is composed of eleven (11) directors or fewer and (y) both Icahn Designees are members of the Board, then one Icahn Designee, as designated by the Shareholders, and the Shareholders agree to cause such Icahn Designee to promptly resign from the Board (such that the Shareholders would continue to have one designee on the Board). (f) If the Shareholders collectively cease to beneficially own at least 10,817,716 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall have no obligation to include the Icahn Designees (or the Additional Shareholders Candidate) on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, assuming either or both of the Icahn Designees and/or the Additional Shareholders Candidate, if applicable, have been elected as directors of the Board, then the Icahn Designees agree to, and the Shareholders agree to cause the Icahn Designees and the Additional Shareholders Candidate, if applicable, to promptly resign from the Board.

Director Designees. (a) The Company From and after the Board agree to nominate date hereof through and including the Icahn Designees for election earlier of (i) the date as directors of which the number of Shares of Common Stock beneficially owned by Wu shall be less than four million five hundred thousand (4,500,000) shares and shall represent less than ten percent (10%) of the Board at the 2014 Meeting number of shares of common stock then outstanding and (ii) December 31, 2020, but in no event prior to include the Icahn Designees in the Company’s slate 2019 annual meeting of directors and in its proxy statement for the 2014 Meeting. In addition to the Icahn Designees, the Board shall nominate nine (9) other directors for election or re-election at the 2014 Meeting stockholders (the earlier of such dates being the “Company NomineesExpiration Date”). The Company and the Board agree to use commercially reasonable efforts to cause the election of the Icahn Designees to the Board (including soliciting proxies to vote for the Icahn Designees, recommending that the Company’s shareholders vote in favor of the election of the Icahn Designees, and otherwise supporting each of the Icahn Designees for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Company Nominees in the aggregate). The Board shall also re-nominate two (2) of the Company's existing directors (the “Additional Company Candidates”) and the Shareholders shall be entitled to nominate and the Company and the Board agree to nominate, subject to the approval of the Board (such approval not to be unreasonably withheld, conditioned or delayed, and if such approval is not granted by the Board, the Shareholders shall be entitled to continue designating a candidate until such approval is granted), one (1) additional candidate (the “Additional Shareholders Candidate” and, together with the Additional Company Candidates, the “Additional Candidates”) for election at the 2014 Meeting; provided, however, that the agenda item to elect the Additional Candidates shall be conditioned on (x) the Board Reduction Proposal not being validly approved and (y) a shareholder of the Company validly nominating one or more directors (other than the Icahn Designees or their Replacements) for election at the 2014 Meeting. If the conditions set forth in clauses (x) and (y) of the preceding sentence are not satisfied, then the Company, the Board, the Shareholders and the Icahn Designees agree that the Board shall have at least three (3) vacancies and agree not to nominate any person to such vacancies. The Company shall name each of the Company Nominees, the Icahn Designees and the Additional Candidates in the proxy statement prepared, filed and delivered in connection with the 2014 Meeting, and the Company and the Board agree to use commercially reasonable efforts to cause the election of each of the Additional Candidates to the Board (subject to the conditions set forth in this Section 1.3(a)) (including soliciting proxies to vote for the Additional Shareholders Candidate, recommending that the Company’s shareholders vote in favor of the election of the Additional Shareholders Candidate, and otherwise supporting the Additional Shareholders Candidate for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Additional Company Candidates in the aggregate). The Shareholders agree to provide the Company with the information about the Additional Shareholders Candidate that is required by applicable law or is otherwise necessary for inclusion in the Company's proxy materials for the 2014 Meeting promptly after the Company requests such information from the Shareholders. The Additional Shareholders Candidate shall be deemed to be an Icahn Designee for all purposes under this Agreement. (b) In the event any Icahn Designee resigns from the Board or is rendered unable to, or refuses to, be appointed to, or for any other reason fails to serve or is not serving, on the Board, the Shareholders shall be entitled to designate, and the Company and the Board shall cause to be added as a nominee to the Board a replacement (a “Replacement”) that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, the Shareholders shall be entitled to continue designating a recommended Replacement until such proposed designee is an Acceptable Person), at the 2014 Meeting or an extraordinary general meeting of shareholders after the 2014 Meeting. The Company and the Board hereby agree to schedule and hold such extraordinary general meeting as promptly as reasonably practicable following the Shareholders’ designation of an Acceptable Person; provided that the Company shall only be required to call one extraordinary general meeting, which meeting shall be one-half at the Company's and one-half at the Shareholders' cost and expense, after the 2014 Meeting and before the termination of this Agreement for the sole purpose of allowing the Company's shareholders to vote on any such Replacement. Subject to Section 1.3(a), for the avoidance of doubt, the Shareholders Wu shall have the right to designate two members for appointment and election, as applicable, to the Company’s Board of Directors. Within five days of the date hereof, the Company, and the Company’s Board of Directors or committee thereof, as applicable, shall increase the authorized number of directors on the Company’s Board of Directors by two directorships, providing for a total of seven (7) directors, and shall fill the two vacancies created by such newly created directorships by appointing the two (2) nominees for election at individuals designated in writing by Wu from time to time (the 2014 Meeting. Any such Replacement who becomes a Board member in replacement “Designated Directors”), as directors of the Icahn Designee Company to serve until the next annual meeting to elect the Company’s directors following the date of their appointment and until their successors are duly elected and qualified; provided that prior to such appointment each individual designated to become a director (y) provides the Company with an appropriate biography for inclusion in reports filed by the Company with the SEC and (z) consents in writing to be named as a director of the Company. If Wu shall decline to name one or both of his designees at this time, he shall be permitted to do so at any time prior to the Additional Shareholders CandidateExpiration Date. Further, if for any reason one or both of Wu’s designees shall be unwilling or unable to serve as a director, Wu may designate a substitute in his sole discretion and without any input from the Company with respect thereto. For purposes hereof, a substitute is deemed a “Designated Director.” At each annual or special meeting of the Company’s stockholders, or action by written consent, to elect the Company’s directors following the date of the Designated Directors’ appointment and to and including the Expiration Date, the Company, and the Company’s Board of Directors or committee thereof, as applicable, shall (i) nominate for re-election by the Company’s stockholders at each such annual or special meeting, or action by written consent, each of the Designated Directors to serve until the next annual meeting to elect the Company’s directors following each such election and until their successors are duly elected and qualified and (ii) recommend the election of each such Designated Director in any proxy statement or similar recommendation delivered or conveyed to the Company’s stockholders in connection with each such annual or special meeting, or action by written consent, to elect directors. In addition to the foregoing, the Company, and the Company’s Board of Directors or committee thereof, as applicable, agree to cause the nomination and election of the Designated Directors as provided in this Agreement and appoint the Designated Directors to each existing or future committee of the Company’s Board of Directors, including the compensation committee and the nominating and corporate governance committee, provided that the Director Nominees need not be deemed to be an Icahn Designee members of the audit committee, and for all purposes under this Agreement. Notwithstanding the avoidance of doubt and in furtherance of the foregoing, the Company and the Company’s Board of Directors or committee thereof, as applicable, agree that each of Xx. Xxxxxxxxx and Xx. Xxxxxxxx are Acceptable Persons. (c) Prior not to the 2014 Meeting, the Company shall prepare and file with the SEC and disseminate recommend to the Company’s shareholders proxy soliciting materials that comply with the obligations stockholders for election, and not to take any other action in furtherance of the Company election of, in each case, any other directors to the extent the nomination and election of such other directors would cause the Board Designated Directors not to be nominated and elected as provided in this Agreement and publish the meeting notification under applicable Swiss law. If an Icahn Designee is elected by the Company’s shareholders to serve as a director on the Board at the 2014 Meeting, such Icahn Designee shall serve until the annual general meeting of shareholders of the Company in 2015 or until such Icahn Designee is required to resign, or resigns, in accordance with the terms of this Agreement, or until his earlier death, resignation or removal by shareholders in accordance with Article 705 of the Swiss Code of Obligations, the Articles and the definitive Minder Ordinance (as defined below). The Shareholders agree to provide the Company with any information about the Icahn Designees as is required to be disclosed in the Company’s proxy solicitation materials under applicable law or is otherwise necessary for inclusion of the Icahn Designees on the Company’s slate. (d) The Company shall not be obligated to include either or both of the Icahn Designees (or the Additional Shareholders Candidate, if applicable) on its slate of directors proposed for election at the Company’s annual general meeting of shareholders for any meeting other than the 2014 Meeting or an extraordinary general meeting as set forth in Section 1.3(b). (e) If the Shareholders collectively cease to beneficially own 14,423,621 or more shares of the Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence), in which case the Shareholders shall promptly (but in no event later than four (4) business days or, if earlier and required under applicable Swiss law and regulations, SIX Swiss Exchange trading days) notify the Company that it owns less than such number of shares of Common Stock, but continue to beneficially own 10,817,716 or more shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall only be obligated to include one of the Icahn Designees (as designated by the Shareholders), as well as the Additional Shareholders Candidate, if applicable, on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, if (A) (x) the Board is composed of more than eleven (11) directors, (y) both Icahn Designees are members of the Board and (z) the Additional Shareholders Candidate is a member of the Board, then one of such persons, as designated by the Shareholders, agrees to, and the Shareholders agree to cause such person, to promptly resign from the Board (such that the Shareholders would continue to have two designees on the Board) or (B) (x) the Board is composed of eleven (11) directors or fewer and (y) both Icahn Designees are members of the Board, then one Icahn Designee, as designated by the Shareholders, and the Shareholders agree to cause such Icahn Designee to promptly resign from the Board (such that the Shareholders would continue to have one designee on the Board). (f) If the Shareholders collectively cease to beneficially own at least 10,817,716 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall have no obligation to include the Icahn Designees (or the Additional Shareholders Candidate) on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, assuming either or both of the Icahn Designees and/or the Additional Shareholders Candidate, if applicable, have been elected as directors of the Board, then the Icahn Designees agree to, and the Shareholders agree to cause the Icahn Designees and the Additional Shareholders Candidate, if applicable, to promptly resign from the Board.

Director Designees. (a) The If the Shareholders then beneficially own an aggregate Net Long Position of at least the Ownership Threshold and no Shareholder has materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, then the Shareholders may deliver, on or after March 1, 2015 and on or before April 15, 2015, a request for the Company to appoint (a “Company Appointment Request”) an Icahn designee to the Company Board. If the Board agree to nominate the Icahn Designees for election as directors of the Board at the 2014 Meeting and to include the Icahn Designees in the Company’s slate of directors and in its proxy statement for the 2014 Meeting. In addition to the Icahn Designeesapproves such designee, the Board shall nominate nine (9) other directors for election or re-election at the 2014 Meeting (the “Company Nominees”). The Company and the Board agree to use commercially reasonable efforts to cause the election of the Icahn Designees to the Board (including soliciting proxies to vote for the Icahn Designees, recommending that the Company’s shareholders vote in favor of the election of the Icahn Designees, and otherwise supporting each of the Icahn Designees for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Company Nominees in the aggregate). The Board shall also re-nominate two (2) of the Company's existing directors (the “Additional Company Candidates”) and the Shareholders shall be entitled to nominate and the Company and the Board agree to nominate, subject to the approval of the Board (such approval shall not to be unreasonably withheld, conditioned or delayed, and if then such approval is not granted by the Board, the Shareholders shall be entitled to continue designating a candidate until such approval is granted), one (1) additional candidate (the “Additional Shareholders Candidate” and, together with the Additional Company Candidates, the “Additional Candidates”) for election at the 2014 Meeting; provided, however, that the agenda item to elect the Additional Candidates shall be conditioned on (x) the Board Reduction Proposal not being validly approved and (y) a shareholder of the Company validly nominating one or more directors (other than the Icahn Designees or their Replacements) for election at the 2014 Meeting. If the conditions set forth in clauses (x) and (y) of the preceding sentence are not satisfied, then the Company, the Board, the Shareholders and the Icahn Designees agree that the Board shall have at least three (3) vacancies and agree not to nominate any person to such vacancies. The Company shall name each of the Company Nominees, the Icahn Designees and the Additional Candidates in the proxy statement prepared, filed and delivered in connection with the 2014 Meeting, and the Company and the Board agree to use commercially reasonable efforts to cause the election of each of the Additional Candidates to the Board (subject to the conditions set forth in this Section 1.3(a)) (including soliciting proxies to vote for the Additional Shareholders Candidate, recommending that the Company’s shareholders vote in favor of the election of the Additional Shareholders Candidate, and otherwise supporting the Additional Shareholders Candidate for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Additional Company Candidates in the aggregate). The Shareholders agree to provide the Company with the information about the Additional Shareholders Candidate that is required by applicable law or is otherwise necessary for inclusion in the Company's proxy materials for the 2014 Meeting promptly after the Company requests such information from the Shareholders. The Additional Shareholders Candidate designee shall be deemed to be an Icahn Designee for all purposes under this Agreement. (b) In the event any Icahn Designee resigns from the Board or is rendered unable to, or refuses to, be appointed to, or for any other reason fails to serve or is not serving, on the Board, the Shareholders shall be entitled to designate, and the Company and the Board shall cause to be added as a nominee to the Board a replacement (a “Replacement”) that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (an “Company Acceptable Person”) ” (and if such proposed designee is not an a Company Acceptable Person, then the Shareholders shall be entitled entitled, without regard to any deadline contained in the previous sentence, to continue designating proposing designees until a recommended Replacement until such proposed designee is an a Company Acceptable Person), at the 2014 Meeting or an extraordinary general meeting of shareholders after the 2014 Meeting. The Company ) and the Board hereby agree to schedule and hold such extraordinary general meeting as promptly as reasonably practicable shall, no later than 10 days following the Shareholders’ designation approval of an a Company Acceptable Person; provided that , take action to increase the Company shall only be required to call one extraordinary general meeting, which meeting shall be one-half at the Company's and one-half at the Shareholders' cost and expense, after the 2014 Meeting and before the termination of this Agreement for the sole purpose of allowing the Company's shareholders to vote on any such Replacement. Subject to Section 1.3(a), for the avoidance of doubt, the Shareholders shall have the right to designate two (2) nominees for election at the 2014 Meeting. Any such Replacement who becomes a Board member in replacement size of the Board by one member and to appoint such designee (the “Icahn Designee or Company Designee”) to fill the Additional Shareholders Candidate, if applicable, shall be deemed to be an Icahn Designee vacancy so created for all purposes under this Agreement. Notwithstanding a term no less than through the foregoing, the Company and the Board agree that each of Xx. Xxxxxxxxx and Xx. Xxxxxxxx are Acceptable Persons. (c) Prior to the 2014 Meeting, the Company shall prepare and file with the SEC and disseminate to the Company’s shareholders proxy soliciting materials that comply with the obligations of the Company and the Board in this Agreement and publish the meeting notification under applicable Swiss law. If an Icahn Designee is elected by the Company’s shareholders to serve as a director on the Board at the 2014 Meeting, such Icahn Designee shall serve until the 2016 annual general meeting of shareholders of the Company in 2015 (the “2016 Meeting”). (b) (i) If FoodserviceCo will be SpinCo, and if twenty-five (25) days immediately prior to the Separation Effective Time, the Shareholders beneficially own an aggregate Net Long Position of at least the Ownership Threshold and no Shareholder or until such Icahn Designee has materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, then (A) no less than twenty (20) days prior to the Separation Effective Time, the Company shall provide a written request to the Shareholders requesting the name of an Icahn designee to be appointed to the board of directors of FoodserviceCo (the “FoodserviceCo Board”), and (B) no later than ten (10) days following receipt of such written request, the Shareholders shall notify the Company of the name of such designee to be appointed to the FoodserviceCo Board (a “FoodserviceCo Appointment Request”). If the Board approves such designee, which such approval shall not be unreasonably withheld, conditioned or delayed, then such designee shall be deemed a “FoodserviceCo Acceptable Person” (and if such proposed designee is not a FoodserviceCo Acceptable Person, then the Shareholders shall be entitled, without regard to any deadline contained in this Section 2.1(b)(i), to continue proposing designees until a proposed designee is a FoodserviceCo Acceptable Person) and the Company (or the FoodserviceCo Board, to the extent additional time is required to resign, or resigns, in accordance with agree upon a FoodserviceCo Acceptable Person) shall appoint such designee (the terms of this Agreement, or until his earlier death, resignation or removal by shareholders in accordance with Article 705 “Icahn FoodserviceCo Designee”) to the FoodserviceCo Board effective as of the Swiss Code of Obligations, Separation Effective Time (or such later time to the Articles and the definitive Minder Ordinance (as defined below). The Shareholders agree to provide the Company with any information about the Icahn Designees as extent additional time is required to be disclosed in agree upon a FoodserviceCo Acceptable Person) if at the Company’s proxy solicitation materials under applicable law time of such appointment the Shareholders beneficially own an aggregate Net Long Position of at least the Ownership Threshold (or is otherwise necessary for inclusion an aggregate Net Long Position of Voting Securities of FoodserviceCo equal to at least 5% of the Icahn Designees on the Company’s slate. (d) The Company shall not be obligated to include either or both outstanding Voting Securities of the Icahn Designees (or the Additional Shareholders CandidateFoodserviceCo, if applicable) on its slate of directors proposed for election at and no Shareholder or Icahn Designee has materially breached this Agreement or the Company’s annual general meeting of shareholders for any meeting other than the 2014 Meeting or an extraordinary general meeting as set forth in Section 1.3(b). (e) If the Shareholders collectively cease Confidentiality Agreement and failed to beneficially own 14,423,621 or more shares of the Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence), in which case the Shareholders shall promptly (but in no event later than four (4) cure such breach within five business days or, if earlier and required under applicable Swiss law and regulations, SIX Swiss Exchange trading days) notify of written notice from the Company that it owns less than specifying any such number of shares of Common Stock, but continue to beneficially own 10,817,716 or more shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall only be obligated to include one of the Icahn Designees (as designated by the Shareholders), as well as the Additional Shareholders Candidate, if applicable, on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, if (A) (x) the Board is composed of more than eleven (11) directors, (y) both Icahn Designees are members of the Board and (z) the Additional Shareholders Candidate is a member of the Board, then one of such persons, as designated by the Shareholders, agrees to, and the Shareholders agree to cause such person, to promptly resign from the Board (such that the Shareholders would continue to have two designees on the Board) or (B) (x) the Board is composed of eleven (11) directors or fewer and (y) both Icahn Designees are members of the Board, then one Icahn Designee, as designated by the Shareholders, and the Shareholders agree to cause such Icahn Designee to promptly resign from the Board (such that the Shareholders would continue to have one designee on the Board)breach. (f) If the Shareholders collectively cease to beneficially own at least 10,817,716 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall have no obligation to include the Icahn Designees (or the Additional Shareholders Candidate) on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, assuming either or both of the Icahn Designees and/or the Additional Shareholders Candidate, if applicable, have been elected as directors of the Board, then the Icahn Designees agree to, and the Shareholders agree to cause the Icahn Designees and the Additional Shareholders Candidate, if applicable, to promptly resign from the Board.

Director Designees. (a) The Company and For so long as BlueLine Partners, LLC or any of its Affiliates holds any shares of Preferred Stock issued pursuant to this Agreement, BlueLine Partners, LLC shall have the Board agree right, to nominate (x) designate an individual, in its sole discretion, (the Icahn Designees “Primary Purchaser Director Designee”) for election service as directors a member of the Board at the 2014 Meeting and to include the Icahn Designees in the Company’s slate of directors and in its proxy statement for the 2014 Meeting. In addition to the Icahn Designees, the Board shall nominate nine (9) other directors for election or re-election at the 2014 Meeting (the “Company Nominees”). The Company and the Board agree to Company shall use commercially reasonable its best efforts to cause the election of the Icahn Designees Primary Purchaser Director Designee to be initially appointed to the Board (including soliciting proxies to vote for the Icahn Designees, recommending that the Company’s shareholders vote in favor of the election of the Icahn Designees, and otherwise supporting each of the Icahn Designees for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Company Nominees in the aggregate). The Board shall also re-nominate two (2) of the Company's existing directors (the “Additional Company CandidatesPrimary Purchaser Board Seat”) and the Shareholders (y) designate a second individual, who shall be entitled to nominate and the Company and the Board agree to nominate, subject to the approval of the Board (such Company, which approval shall not to be unreasonably withheld, conditioned or delayed, and if such approval is not granted by the Board, the Shareholders shall be entitled to continue designating a candidate until such approval is granted), one (1) additional candidate withheld (the “Additional Shareholders Candidate” and, together with the Additional Company Candidates, the “Additional CandidatesSecondary Purchaser Director Designee”) for election at the 2014 Meeting; provided, however, that the agenda item to elect the Additional Candidates shall be conditioned on (x) the Board Reduction Proposal not being validly approved and (y) a shareholder of the Company validly nominating one or more directors (other than the Icahn Designees or their Replacements) for election at the 2014 Meeting. If the conditions set forth in clauses (x) and (y) of the preceding sentence are not satisfied, then the Company, the Board, the Shareholders and the Icahn Designees agree that the Board shall have at least three (3) vacancies and agree not to nominate any person to such vacancies. The Company shall name each of the Company Nominees, the Icahn Designees and the Additional Candidates in the proxy statement prepared, filed and delivered in connection with the 2014 Meeting), and the Company and the Board agree to shall use commercially reasonable its best efforts to cause the election of each of the Additional Candidates Secondary Purchaser Director Designee to be initially appointed to the Board (subject the “Secondary Purchaser Board Seat”). Subject to the conditions set forth in this Section 1.3(a)) (including soliciting proxies to vote for the Additional Shareholders Candidate, recommending that the Company’s shareholders vote in favor fiduciary duties of the Board, for so long as BlueLine Partners, LLC or any of its Affiliates holds any shares of Preferred Stock issued pursuant to this Agreement, the Company shall nominate the Primary Purchaser Director Designee and the Secondary Purchaser Director Designee for reelection by the stockholders of the Company to fill the Primary Purchaser Board Seat and the Secondary Purchaser Board Seat, respectively, at each annual or special meeting of the stockholders at which election of directors to the Additional Shareholders Candidate, and otherwise supporting the Additional Shareholders Candidate for election in a manner no less rigorous and favorable than the manner in which Board of the Company is proposed for consideration by the stockholders and to appoint the Primary Purchaser Director Designee to fill any vacancy in the Primary Purchaser Board Seat and the Board support the Additional Company Candidates Secondary Purchaser Director Designee to fill any vacancy in the aggregate). The Shareholders agree to provide the Company with the information about the Additional Shareholders Candidate that is required by applicable law or is otherwise necessary for inclusion in the Company's proxy materials for the 2014 Meeting promptly after the Company requests such information from the Shareholders. The Additional Shareholders Candidate shall be deemed to be an Icahn Designee for all purposes under this AgreementSecondary Purchaser Board Seat. (b) In the event that none of BlueLine Partners, LLC or any Icahn of its Affiliates shall any longer hold any shares of Preferred Stock issued pursuant to this Agreement (whether as result of conversion, sale or other disposition), then for so long as BlueLine Partners, LLC or any of its Affiliates holds at least 500,000 shares of Common Stock of the Company, (x) BlueLine Partners, LLC shall have the right, so long as the initial designation of the Primary Purchaser Director Designee resigns from has not previously been made pursuant to Section 4.6(a), to designate the Primary Purchaser Director Designee for service as a member of the Board or is rendered unable toand the Company shall use its best efforts to cause the Primary Purchaser Director Designee to be initially appointed to the Primary Purchaser Board Seat, or refuses toand (y) thereafter, be appointed to, or for any other reason fails subject to serve or is not serving, on the fiduciary duties of the Board, the Shareholders Company shall be entitled to designate, and nominate the Primary Purchaser Director Designee for reelection by the stockholders of the Company and to fill the Primary Purchaser Board shall cause to be added as a nominee Seat at each annual or special meeting of the stockholders at which election of directors to the Board a replacement (a “Replacement”) that of the Company is approved proposed for consideration by the Board, such approval not stockholders and to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, appoint the Shareholders shall be entitled Primary Purchaser Director Designee to continue designating a recommended Replacement until such proposed designee is an Acceptable Person), at fill any vacancy in the 2014 Meeting or an extraordinary general meeting of shareholders after the 2014 Meeting. The Company and the Primary Purchaser Board hereby agree to schedule and hold such extraordinary general meeting as promptly as reasonably practicable following the Shareholders’ designation of an Acceptable Person; provided that the Company shall only be required to call one extraordinary general meeting, which meeting shall be one-half at the Company's and one-half at the Shareholders' cost and expense, after the 2014 Meeting and before the termination of this Agreement for the sole purpose of allowing the Company's shareholders to vote on any such Replacement. Subject to Section 1.3(a), for the avoidance of doubt, the Shareholders shall have the right to designate two (2) nominees for election at the 2014 Meeting. Any such Replacement who becomes a Board member in replacement of the Icahn Designee or the Additional Shareholders Candidate, if applicable, shall be deemed to be an Icahn Designee for all purposes under this Agreement. Notwithstanding the foregoing, the Company and the Board agree that each of Xx. Xxxxxxxxx and Xx. Xxxxxxxx are Acceptable PersonsSeat. (c) Prior to Notwithstanding any other provisions of the 2014 MeetingTransaction Documents, the Company shall prepare and file with the SEC and disseminate to the Company’s shareholders proxy soliciting materials that comply with the obligations rights of the Company and the Board BlueLine Partners, LLC set forth in this Agreement and publish the meeting notification under applicable Swiss law. If an Icahn Designee is elected by the Company’s shareholders to serve as a director on the Board at the 2014 Meeting, such Icahn Designee shall serve until the annual general meeting of shareholders of the Company in 2015 or until such Icahn Designee is required to resign, or resigns, in accordance with the terms of this Agreement, or until his earlier death, resignation or removal by shareholders in accordance with Article 705 of the Swiss Code of Obligations, the Articles and the definitive Minder Ordinance (as defined below). The Shareholders agree to provide the Company with any information about the Icahn Designees as is required to be disclosed in the Company’s proxy solicitation materials under applicable law or is otherwise necessary for inclusion of the Icahn Designees on the Company’s slate. (d) The Company Section 4.6 shall not be obligated to include either transferable under any circumstances, whether by sale or both assignment of the Icahn Designees (securities issuable hereunder or the Additional Shareholders Candidate, if applicable) on its slate of directors proposed for election at the Company’s annual general meeting of shareholders for any meeting other than the 2014 Meeting or an extraordinary general meeting as set forth in Section 1.3(b)otherwise. (e) If the Shareholders collectively cease to beneficially own 14,423,621 or more shares of the Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence), in which case the Shareholders shall promptly (but in no event later than four (4) business days or, if earlier and required under applicable Swiss law and regulations, SIX Swiss Exchange trading days) notify the Company that it owns less than such number of shares of Common Stock, but continue to beneficially own 10,817,716 or more shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall only be obligated to include one of the Icahn Designees (as designated by the Shareholders), as well as the Additional Shareholders Candidate, if applicable, on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, if (A) (x) the Board is composed of more than eleven (11) directors, (y) both Icahn Designees are members of the Board and (z) the Additional Shareholders Candidate is a member of the Board, then one of such persons, as designated by the Shareholders, agrees to, and the Shareholders agree to cause such person, to promptly resign from the Board (such that the Shareholders would continue to have two designees on the Board) or (B) (x) the Board is composed of eleven (11) directors or fewer and (y) both Icahn Designees are members of the Board, then one Icahn Designee, as designated by the Shareholders, and the Shareholders agree to cause such Icahn Designee to promptly resign from the Board (such that the Shareholders would continue to have one designee on the Board). (f) If the Shareholders collectively cease to beneficially own at least 10,817,716 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall have no obligation to include the Icahn Designees (or the Additional Shareholders Candidate) on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, assuming either or both of the Icahn Designees and/or the Additional Shareholders Candidate, if applicable, have been elected as directors of the Board, then the Icahn Designees agree to, and the Shareholders agree to cause the Icahn Designees and the Additional Shareholders Candidate, if applicable, to promptly resign from the Board.

Director Designees. (a) The If the Shareholders then beneficially own an aggregate Net Long Position of at least the Ownership Threshold and no Shareholder has materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, then the Shareholders may deliver, on or after March 1, 2015 and on or before April 15, 2015, a request for the Company to appoint (a "Company Appointment Request") an Icahn designee to the Company Board. If the Board agree to nominate the Icahn Designees for election as directors of the Board at the 2014 Meeting and to include the Icahn Designees in the Company’s slate of directors and in its proxy statement for the 2014 Meeting. In addition to the Icahn Designeesapproves such designee, the Board shall nominate nine (9) other directors for election or re-election at the 2014 Meeting (the “Company Nominees”). The Company and the Board agree to use commercially reasonable efforts to cause the election of the Icahn Designees to the Board (including soliciting proxies to vote for the Icahn Designees, recommending that the Company’s shareholders vote in favor of the election of the Icahn Designees, and otherwise supporting each of the Icahn Designees for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Company Nominees in the aggregate). The Board shall also re-nominate two (2) of the Company's existing directors (the “Additional Company Candidates”) and the Shareholders shall be entitled to nominate and the Company and the Board agree to nominate, subject to the approval of the Board (such approval shall not to be unreasonably withheld, conditioned or delayed, and if then such approval is not granted by the Board, the Shareholders shall be entitled to continue designating a candidate until such approval is granted), one (1) additional candidate (the “Additional Shareholders Candidate” and, together with the Additional Company Candidates, the “Additional Candidates”) for election at the 2014 Meeting; provided, however, that the agenda item to elect the Additional Candidates shall be conditioned on (x) the Board Reduction Proposal not being validly approved and (y) a shareholder of the Company validly nominating one or more directors (other than the Icahn Designees or their Replacements) for election at the 2014 Meeting. If the conditions set forth in clauses (x) and (y) of the preceding sentence are not satisfied, then the Company, the Board, the Shareholders and the Icahn Designees agree that the Board shall have at least three (3) vacancies and agree not to nominate any person to such vacancies. The Company shall name each of the Company Nominees, the Icahn Designees and the Additional Candidates in the proxy statement prepared, filed and delivered in connection with the 2014 Meeting, and the Company and the Board agree to use commercially reasonable efforts to cause the election of each of the Additional Candidates to the Board (subject to the conditions set forth in this Section 1.3(a)) (including soliciting proxies to vote for the Additional Shareholders Candidate, recommending that the Company’s shareholders vote in favor of the election of the Additional Shareholders Candidate, and otherwise supporting the Additional Shareholders Candidate for election in a manner no less rigorous and favorable than the manner in which the Company and the Board support the Additional Company Candidates in the aggregate). The Shareholders agree to provide the Company with the information about the Additional Shareholders Candidate that is required by applicable law or is otherwise necessary for inclusion in the Company's proxy materials for the 2014 Meeting promptly after the Company requests such information from the Shareholders. The Additional Shareholders Candidate designee shall be deemed to be an Icahn Designee for all purposes under this Agreement. (b) In the event any Icahn Designee resigns from the Board or is rendered unable to, or refuses to, be appointed to, or for any other reason fails to serve or is not serving, on the Board, the Shareholders shall be entitled to designate, and the a "Company and the Board shall cause to be added as a nominee to the Board a replacement (a “Replacement”) that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) " (and if such proposed designee is not an a Company Acceptable Person, then the Shareholders shall be entitled entitled, without regard to any deadline contained in the previous sentence, to continue designating proposing designees until a recommended Replacement until such proposed designee is an a Company Acceptable Person), at the 2014 Meeting or an extraordinary general meeting of shareholders after the 2014 Meeting. The Company ) and the Board hereby agree to schedule and hold such extraordinary general meeting as promptly as reasonably practicable shall, no later than 10 days following the Shareholders’ designation approval of an a Company Acceptable Person; provided that , take action to increase the Company shall only be required to call one extraordinary general meeting, which meeting shall be one-half at the Company's and one-half at the Shareholders' cost and expense, after the 2014 Meeting and before the termination of this Agreement for the sole purpose of allowing the Company's shareholders to vote on any such Replacement. Subject to Section 1.3(a), for the avoidance of doubt, the Shareholders shall have the right to designate two (2) nominees for election at the 2014 Meeting. Any such Replacement who becomes a Board member in replacement size of the Board by one member and to appoint such designee (the "Icahn Designee or Company Designee") to fill the Additional Shareholders Candidate, if applicable, shall be deemed to be an Icahn Designee vacancy so created for all purposes under this Agreement. Notwithstanding a term no less than through the foregoing, the Company and the Board agree that each of Xx. Xxxxxxxxx and Xx. Xxxxxxxx are Acceptable Persons. (c) Prior to the 2014 Meeting, the Company shall prepare and file with the SEC and disseminate to the Company’s shareholders proxy soliciting materials that comply with the obligations of the Company and the Board in this Agreement and publish the meeting notification under applicable Swiss law. If an Icahn Designee is elected by the Company’s shareholders to serve as a director on the Board at the 2014 Meeting, such Icahn Designee shall serve until the 2016 annual general meeting of shareholders of the Company in 2015 (the "2016 Meeting"). (b) (i) If FoodserviceCo will be SpinCo, and if twenty-five (25) days immediately prior to the Separation Effective Time, the Shareholders beneficially own an aggregate Net Long Position of at least the Ownership Threshold and no Shareholder or until such Icahn Designee has materially breached this Agreement or the Confidentiality Agreement and failed to cure such breach within five business days of written notice from the Company specifying any such breach, then (A) no less than twenty (20) days prior to the Separation Effective Time, the Company shall provide a written request to the Shareholders requesting the name of an Icahn designee to be appointed to the board of directors of FoodserviceCo (the "FoodserviceCo Board"), and (B) no later than ten (10) days following receipt of such written request, the Shareholders shall notify the Company of the name of such designee to be appointed to the FoodserviceCo Board (a "FoodserviceCo Appointment Request"). If the Board approves such designee, which such approval shall not be unreasonably withheld, conditioned or delayed, then such designee shall be deemed a "FoodserviceCo Acceptable Person" (and if such proposed designee is not a FoodserviceCo Acceptable Person, then the Shareholders shall be entitled, without regard to any deadline contained in this Section 2.1(b)(i), to continue proposing designees until a proposed designee is a FoodserviceCo Acceptable Person) and the Company (or the FoodserviceCo Board, to the extent additional time is required to resign, or resigns, in accordance with agree upon a FoodserviceCo Acceptable Person) shall appoint such designee (the terms of this Agreement, or until his earlier death, resignation or removal by shareholders in accordance with Article 705 "Icahn FoodserviceCo Designee") to the FoodserviceCo Board effective as of the Swiss Code of Obligations, Separation Effective Time (or such later time to the Articles and the definitive Minder Ordinance (as defined below). The Shareholders agree to provide the Company with any information about the Icahn Designees as extent additional time is required to be disclosed in agree upon a FoodserviceCo Acceptable Person) if at the Company’s proxy solicitation materials under applicable law time of such appointment the Shareholders beneficially own an aggregate Net Long Position of at least the Ownership Threshold (or is otherwise necessary for inclusion an aggregate Net Long Position of Voting Securities of FoodserviceCo equal to at least 5% of the Icahn Designees on the Company’s slate. (d) The Company shall not be obligated to include either or both outstanding Voting Securities of the Icahn Designees (or the Additional Shareholders CandidateFoodserviceCo, if applicable) on its slate of directors proposed for election at and no Shareholder or Icahn Designee has materially breached this Agreement or the Company’s annual general meeting of shareholders for any meeting other than the 2014 Meeting or an extraordinary general meeting as set forth in Section 1.3(b). (e) If the Shareholders collectively cease Confidentiality Agreement and failed to beneficially own 14,423,621 or more shares of the Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence), in which case the Shareholders shall promptly (but in no event later than four (4) cure such breach within five business days or, if earlier and required under applicable Swiss law and regulations, SIX Swiss Exchange trading days) notify of written notice from the Company that it owns less than specifying any such number of shares of Common Stock, but continue to beneficially own 10,817,716 or more shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall only be obligated to include one of the Icahn Designees (as designated by the Shareholders), as well as the Additional Shareholders Candidate, if applicable, on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, if (A) (x) the Board is composed of more than eleven (11) directors, (y) both Icahn Designees are members of the Board and (z) the Additional Shareholders Candidate is a member of the Board, then one of such persons, as designated by the Shareholders, agrees to, and the Shareholders agree to cause such person, to promptly resign from the Board (such that the Shareholders would continue to have two designees on the Board) or (B) (x) the Board is composed of eleven (11) directors or fewer and (y) both Icahn Designees are members of the Board, then one Icahn Designee, as designated by the Shareholders, and the Shareholders agree to cause such Icahn Designee to promptly resign from the Board (such that the Shareholders would continue to have one designee on the Board)breach. (f) If the Shareholders collectively cease to beneficially own at least 10,817,716 shares of Common Stock (as adjusted from time to time for any stock dividends, combinations, splits, reverse stock splits, recapitalizations, or other similar occurrence): (i) prior to the 2014 Meeting, then the Company shall have no obligation to include the Icahn Designees (or the Additional Shareholders Candidate) on its slate at the 2014 Meeting; or (ii) after the 2014 Meeting, assuming either or both of the Icahn Designees and/or the Additional Shareholders Candidate, if applicable, have been elected as directors of the Board, then the Icahn Designees agree to, and the Shareholders agree to cause the Icahn Designees and the Additional Shareholders Candidate, if applicable, to promptly resign from the Board.