Common use of Director Nominee Clause in Contracts

Director Nominee. (a) Having considered the request of the Investors that the Nominees, individuals mutually selected by the Investors and the Company, be appointed to the Company’s board of directors (the “Board”), and having received the consent of the Nominees to act as directors of the Company, the Nominating Committee of the Board (the “Nominating Committee”) has reviewed the nominations and has recommended the appointment of the Nominees as directors of the Company on the terms set out in this Agreement. Based upon such recommendation, concurrent with the execution and delivery of this Agreement, the Board has as of this date (i) elected the Nominees as directors of the Company, to serve until the annual meeting of stockholders of the Company in 2012 (the “2012 Meeting”) and (ii) subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees for election as directors of the Company and recommend in favor of their election by stockholders at the 2012 Meeting. If the Nominees are elected by the Company’s stockholders to serve as directors of the Company at the 2012 Meeting, then subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees shall serve until the annual meeting of stockholders of the Company in 2013 (including any adjournment or postponement thereof) (the “2013 Meeting”), or until their earlier death, resignation, disqualification or removal. (b) The Company acknowledges that each Nominee has satisfied all of the conditions to each Nominee’s nomination for election as a director of the Company at the 2012 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees and each member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Market. (c) Upon becoming a director of the Company, and at all times while serving as a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 Meeting.

Director Nominee. (a) Having considered the request of the Investors that the Nominees, individuals mutually selected by the Investors and the Company, be appointed to the Company’s board of directors (the “Board”), and having received the consent of the Nominees to act as directors of the Company, the Nominating Committee of the Board (the “Nominating Committee”) has reviewed the nominations and has recommended the appointment of the Nominees as directors of If the Company on has not entered into a definitive agreement to merge with, or sell substantially all of its assets to, another person or entity within six (6) months from the terms set out in this Agreement. Based upon such recommendation, concurrent with the execution and delivery date of this Agreement, Ben-Xxxxxx xxxll be entitled to designate one director to the Board has as class of this date (i) elected the Nominees as directors of the Company, to that serve until the annual meeting Annual Meeting of stockholders of the Company to be held in 2012 2002 (the “2012 "2002 ANNUAL MEETING") and, with respect to the 2002 Annual Meeting”) , the Company shall take all necessary or appropriate action to assist in the nomination and (ii) subject to compliance election as director the individual designated by each member Ben-Xxxxxx xx be elected as a director of the Investor Group and the Nominees with all class of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees for election as directors of the Company and recommend in favor of their election by stockholders to be elected at the 2012 2002 Annual Meeting. If the Nominees are elected by the Company’s stockholders ; PROVIDED, THAT in each case such designee (i) will qualify as an "independent" director, (ii) is not an affiliate of Ben-Xxxxxx xxx (iii) is otherwise reasonably acceptable to serve as directors of the Company at the 2012 Meetingtime of his or her designation. Notwithstanding the foregoing, then subject to compliance by each member in the event that at any time Ben-Xxxxxx xxxll no longer beneficially own at least 5% of the Investor Group voting securities of the Company, Ben-Xxxxxx xxxll not have the right to designate a director of the Company, Ben-Shmuel's rights and duties under Sections 1 and 2 shall terminate, at the Nominees with Company's request Ben-Xxxxxx xxxll cause his designee to resign forthwith such that no designee of Ben-Xxxxxx xxxains on the Board of Directors of the Company and all of the terms covenants under Sections 1 and 2 of this Agreement shall lapse and the Nominees continuing to satisfy all no longer be of any force or effect. For purposes of this Agreement, "affiliate" shall be defined as such term is defined under Rule 405 of the ConditionsSecurities Act of 1933, as amended. So long as Ben-Xxxxxx xx entitled to designate one director in accordance with the provisions of Section 1 hereof or until the 2002 Annual Meeting, except to the extent otherwise provided herein, the Nominees Company shall serve until take all necessary or appropriate action to assist in the annual meeting of stockholders of nomination and election as director the Company individual specified in 2013 (including any adjournment or postponement thereof) (the “2013 Meeting”), or until their earlier death, resignation, disqualification or removal. (b) The Company acknowledges that each Nominee has satisfied all of the conditions to each Nominee’s nomination for election this Section 1 designated by Ben-Xxxxxx xx be elected as a director of the Company and further agrees not to oppose such designee's nomination and election at the 2012 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees and each member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Market. (c) Upon becoming a director of the Company, and at all times while serving as a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 2002 Annual Meeting.

Director Nominee. (a) Having considered the request of the Investors that the Nominees, individuals mutually selected by the Investors and the Company, Nominee be appointed to the Company’s board of directors (the “Board”), and having received the consent of the Nominees Nominee to act as directors a director of the Company, the Nominating Committee of the Board (the “Nominating Committee”) has reviewed the nominations such nomination and has recommended the appointment of the Nominees Nominee as directors a director of the Company on the terms set out forth in this Agreement. Based upon such recommendation, concurrent with the execution and delivery of this Agreement, the Board has has, as of this date date, (i) elected the Nominees Nominee as directors a director of the Company, to serve until the annual meeting of stockholders of the Company in 2012 to be held during the 2016 calendar year (the “2012 2016 Meeting”) on the terms set out in this Agreement, (ii) accepted the resignation of C. Sxxxxxx Xxxxx as a director of the Company, effective conditioned upon the appointment of the Nominee to the Board, and (iiiii) subject to compliance by each member of the Investor Group and the Nominees Nominee with all of the terms of this Agreement and the Nominees Nominee continuing to satisfy all of the ConditionsConditions (as defined herein), determined to nominate the Nominees Nominee for election as directors a director of the Company and recommend recommend, support and solicit proxies in favor of their his election by stockholders at the 2012 Meeting2016 Meeting in the same manner as the Company Nominees (as defined herein). If the Nominees are Nominee is elected by the Company’s stockholders to serve as directors of the Company at the 2012 2016 Meeting, then subject to compliance by each member of the Investor Group and the Nominees Nominee with all of the terms of this Agreement and the Nominees Nominee continuing to satisfy all of the Conditions, the Nominees Nominee shall serve until the annual meeting of stockholders of the Company in 2013 to be held during the 2017 calendar year (including any adjournment or postponement thereof) (the “2013 2017 Meeting”), or until their his earlier death, resignation, disqualification or removal. In addition, in connection with the nomination of the Nominee for election as a director of the Company at the 2016 Meeting, each party to this Agreement hereby acknowledges and agrees that the slate of nominees for election as directors of the Company at the 2016 Meeting will consist of (i) the Nominee (Wxxxx Xxxx) and (ii) Dxxxx Xxxxx, Sxxxx X. Xxxxxxxxxx, Cxxxxxx Xxxxxxxx, Lxxxx Xxxxxxxxx, Dxxxx Xxxxx and Rxxxxx Xxxx (such individuals in this clause (ii) being the “Company Nominees”). (b) The Company acknowledges that each the Nominee has satisfied all of the conditions Conditions to each the Nominee’s nomination for election as a director of the Company at the 2012 2016 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees Nominee and each member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates a candidate for directors director in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Market. (c) Upon becoming a director of the Company, and at all times while serving as a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 Meeting.

Director Nominee. (a) Having considered Prior to the request execution of this Agreement, the Stockholders have proposed Xxxxxxx X. Xxxx as the initial nominee of the Investors that Stockholders (the Nominees, individuals mutually selected by the Investors and the Company, “Nominee”) to be appointed to the Company’s board of directors (the “Board”), and having the Company has received the Nominee’s consent of the Nominees to act serve as directors of the Company, the Nominating Committee of the Board a director. (the “Nominating Committee”b) has reviewed the nominations and has recommended the appointment of the Nominees as directors of the Company on the terms set out in this Agreement. Based upon such recommendation, concurrent Concurrent with the execution and delivery of this Agreement, the Board has as of this date date: (i) elected increased the Nominees as directors size of the Company, Board by one director and appointed Xxxxxxx X. Xxxx to serve as a director of the Company until the annual meeting of stockholders of the Company in 2012 2010 (the “2012 2010 Annual Meeting”) and ), and (ii) subject to compliance by each member approved the nomination of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees Xxxxxxx X. Xxxx for election as directors of the Company and recommend in favor of their election by stockholders at the 2012 Meeting. If the Nominees are elected by the Company’s stockholders to serve as directors a director of the Company at the 2012 Meeting, then subject 2010 Annual Meeting to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees shall serve until the annual meeting of stockholders of the Company in 2013 (including any adjournment or postponement thereof) (the “2013 Annual Meeting”), or until their his earlier death, resignation, disqualification or removal. (bc) The Company acknowledges that each shall include the Nominee has satisfied all in the Board’s slate of the conditions to each Nominee’s nomination nominees for election as a director in the proxy statement for the 2010 Annual Meeting, and use its reasonable best efforts to cause the election of the Company Nominee at the 2012 2010 Annual Meeting under to serve until the 2013 Annual Meeting, including without limitation, obtaining the Board’s recommendation that the Company’s Bylaws, policies and procedures, and the Nominees and each member stockholders vote in favor of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Market. (c) Upon becoming a director election of the Company, and Nominee at all times while serving as a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable 2010 Annual Meeting. The Stockholders agree to members vote in favor of the Board, including, without limitation, ’s slate of nominees for election as directors at the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (2010 Annual Meeting; provided that such slate includes the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the CompanyNominee. (d) The Subject to applicable law and the rules of the New York Stock Exchange (the “Exchange”), if at any time during the Term a vacancy on the Board is created as a result of the Nominee’s death, resignation, disqualification or removal, or the nomination of the Nominee at the 2010 Annual Meeting is withdrawn for any reason, then the Stockholders and the Company (acting through the Board) shall work together in good faith to fill such vacancy or replace such nominee with an individual employed by, or a member or partner of, one the Stockholders or Representatives (as defined below) who meets the Conditions and is mutually acceptable to the Stockholders and the Company, each and thereafter such individual shall serve and/or be nominated as the “Nominee” under this Agreement. (e) The Nominee will not be entitled to any compensation during the Term for service as a member of the Investor Group and each Board or any committee of the Board. The Company will pay for, or reimburse the Nominee acknowledges and agrees that: (i) iffor, prior to each out-of-pocket expenses for attending meetings in connection with the Nominee’s nomination or election to service as a member of the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director member of, or observer to, any committee of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 Meeting.

Director Nominee. (a) Having considered For so long as Purchaser, Parent and their Control Subsidiaries together beneficially own at least 379,743 shares of Common Stock (subject to adjustment in the request event of a stock split or stock dividend on, or other recapitalization of, the Investors that the NomineesCommon Stock), individuals mutually selected by the Investors Purchaser and the Company, Parent shall be appointed entitled to (i) nominate one representative to the Company’s board Board of directors (the “Board”), and having received the consent of the Nominees to act as directors Directors of the Company, who shall serve as a Class III Director, subject to the approval of the Company's Nominating Committee (which approval shall not be unreasonably withheld), to serve in such capacity in accordance with the Restated Certificate of Incorporation and the By-Laws of the Company or (ii) be represented at meetings of the Board (the “Nominating Committee”) has reviewed the nominations and has recommended the appointment of the Nominees as directors Directors of the Company by an observer during such times as there is no Purchaser nominee on the terms set out in this Agreement. Based upon such recommendation, concurrent with the execution and delivery Board of this Agreement, the Board has as of this date (i) elected the Nominees as directors of the Company, to serve until the annual meeting of stockholders of the Company in 2012 (the “2012 Meeting”) and (ii) subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees for election as directors of the Company and recommend in favor of their election by stockholders at the 2012 Meeting. If the Nominees are elected by the Company’s stockholders to serve as directors of the Company at the 2012 Meeting, then subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees shall serve until the annual meeting of stockholders of the Company in 2013 (including any adjournment or postponement thereof) (the “2013 Meeting”), or until their earlier death, resignation, disqualification or removalDirectors. (b) The Company acknowledges that each Nominee has satisfied all Notwithstanding the foregoing, Purchaser and Parent shall have no obligation under this Agreement (i) to nominate a representative to the Board of Directors, (ii) to have any such representative continue to serve on the Board of Directors or (iii) to be represented at meetings of the conditions to each Nominee’s nomination for election as a director Board of the Company at the 2012 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees and each member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock MarketDirectors by an observer. (c) If (i) the Cooperation Agreement is terminated by the Company pursuant to Section 8.2 of the Cooperation Agreement and (ii) there is no ongoing or unresolved dispute between Parent or Purchaser, on the one hand, and the Company, on the other hand, with respect to the validity or effectiveness of such termination of the Cooperation Agreement, then the rights provided to Purchaser and Parent in Section 4.3(a) shall terminate and Purchaser and Parent shall cause their nominee to resign from the Board of Directors. (d) In the event that Purchaser's or Parent's nominee is no longer a senior executive of Purchaser or Parent or no longer has responsibilities with Purchaser and Parent with respect to the commercial relationship between the parties set forth in the Cooperation Agreement or the Development Agreement, then Purchaser or Parent, as the case may be, shall cause such nominee to resign from the Board of Directors and, if it desires to fill such vacancy, shall name a person who is a senior executive of Purchaser or Parent or who has responsibilities with Purchaser or Parent with respect to the commercial relationship between the parties set forth in the Cooperation Agreement or the Development Agreement, subject to the approval of the Company's Nominating Committee (which approval shall not be unreasonably withheld), to fill the vacancy created by such resignation. Upon becoming a director request by the Company that Purchaser's or Parent's nominee be removed from the Board of Directors without cause, Purchaser will give reasonable consideration to such request but shall not be obligated to take any action. (e) In the event of a Major Competitor Transaction, the Company may request in writing that Purchaser's or Parent's nominee pursuant to this Section 4.3 be removed from the Board of Directors of the Company, and at all times while serving Purchaser or Parent, as a director the case may be, shall cause such nominee to resign from the Board of Directors of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 Meeting.

Director Nominee. (a) Having considered Within two (2) Business Days following the request date on which the sale of the Investors that Designated Interest to EDFI or an affiliate is consummated, the Nominees, individuals mutually selected by the Investors and the Company, be appointed to the Company’s board number of directors constituting the Constellation Board of Directors shall be automatically increased by one (1) and, EDFI shall have the right to nominate one (1) individual (herein referred to as the “BoardEDFI Nominee”), and having received the consent of the Nominees to act as directors of the Company, the Nominating Committee of the Board (the “Nominating Committee”) has reviewed the nominations and has recommended the appointment of the Nominees as directors of the Company on the terms set out in this AgreementDirectors shall appoint such EDFI Nominee to such newly created directorship. Based upon such recommendation, concurrent with the execution and delivery of this Agreement, the Board has as of this date (i) elected the Nominees as directors of the Company, to The EDFI Nominee so appointed shall serve until the next annual meeting of the stockholders of Constellation and until his or her successor is elected and qualifies. The Board of Directors shall cause Constellation to include the EDFI Nominee in the slate of nominees recommended by the Board of Directors to the holders of Constellation’s common stock for election at the 2009 annual meeting of stockholders of Constellation and for reelection at every meeting thereafter and shall use all commercially reasonable efforts to cause the Company election of the EDFI Nominee, including soliciting proxies in 2012 favor of his or her election. In the event the EDFI Nominee resigns, is unable to serve as a member of the Board of Directors, is removed from the Board of Directors or fails to be elected as a member of the Board of Directors at any annual stockholders meeting, EDFI shall have the right to nominate another individual (the a “2012 MeetingSubstitute Nominee”) and (ii) subject the Board of Directors shall appoint such Substitute Nominee to compliance fill the vacancy created by each member the resignation or removal of the Investor Group and prior EDFI Nominee, at which point such Substitute Nominee shall be deemed to be the Nominees EDFI Nominee. EDFI’s rights hereunder with all respect to the appointment of the terms EDFI Nominee shall be terminated at such time as EDFI has transferred, sold or otherwise disposed of this Agreement its membership interests in CENG to a third party (and the Nominees continuing not to satisfy all an affiliate) such that its ownership interest in CENG is less than 25% of the Conditions, determined to nominate the Nominees for election as directors of the Company and recommend outstanding membership interests in favor of their election by stockholders at the 2012 Meeting. If the Nominees are elected by the Company’s stockholders to serve as directors of the Company at the 2012 Meeting, then subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees shall serve until the annual meeting of stockholders of the Company in 2013 (including any adjournment or postponement thereof) (the “2013 Meeting”), or until their earlier death, resignation, disqualification or removalCENG. (b) The Company acknowledges that each Nominee has satisfied all For so long as such membership does not conflict with any applicable law or regulation or listing requirement of the conditions NYSE or any other applicable market (as determined in good faith by the Board of Directors of Constellation) on which Constellation Stock is listed for trading, the EDFI Nominee shall be entitled to each Nominee’s nomination for election serve as a director member of each committee of the Company at the 2012 Meeting under the Company’s BylawsBoard of Directors, policies and procedures, except for any committee formed to consider a transaction between Constellation and the Nominees and each EDFI Group or any member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Marketthereof. (c) Upon becoming If EDFI has not exercised its right to nominate a director of the CompanyEDFI Nominee but is entitled to do so pursuant to this Section 3.2, and at all times while serving as it may appoint a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy board observer (the “Trading PolicyBoard Observer”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors who shall have the right to designate another individual for appointment as a replacement nominee until one attend and participate in all meetings of, and receive all material distributed to, the Board of Directors, but shall not be entitled to vote at meetings of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee Board of Directors or any committees thereof. The Board Observer shall be required entitled to sign attend and participate in each committee of the Board of Directors, except for any committee formed to consider a joinder agreement agreeing transaction between Constellation and any member of the EDFI Group. Constellation shall reimburse the Board Observer for all costs and expenses reasonably incurred in connection with attending any meetings of the Board of Directors or committees thereof. Notwithstanding the above, Constellation has the right to be bound by withhold any information from the terms Board Observer and provisions to exclude the Board Observer from any meeting or portion thereof if access to such information or attendance at such meeting, could: (1) based on the advice of this AgreementConstellation’s outside counsel, adversely affect the attorney-client privilege between Constellation and its counsel; (ii2) ifcause the Board of Directors to breach its duties; or (3) result in a conflict between interests of Constellation, following such election on the one hand, and those of the Board Observer or its Affiliates, on the other hand. Constellation will use its reasonable best efforts to ensure that any withholding of information or any restriction on attendance is strictly limited only to the Boardextent necessary as set forth in the preceding sentence. Notwithstanding anything in the foregoing to the contrary, each Nominee is or otherwise becomes unable or unwilling Constellation shall be entitled to serve as a director take actions and establish procedures to the extent reasonably required to restrict the access of the Company, then the Company shall be under no obligation Board Observer to nominate any restricted national security data of Constellation or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or of any other designee person whose national security data is in the possession or control of the Investors for election Constellation. The Board Observer shall not have any authority to the Board at the 2013 Meetingbind Constellation.

Director Nominee. (a) Having considered the request of the Investors Provided that the Nomineesboth Director Thresholds are met, individuals mutually selected by the Investors and the Company, be appointed subject to the Company’s board other provisions of directors this Agreement, following delivery of an Exercise Notice, EGLX (acting through the “Board”), and having received the consent of the Nominees to act as directors of the Company, the Nominating Committee of the Board ) shall: (the “Nominating Committee”i) has reviewed the nominations and has recommended effect the appointment of the Nominees initial Blue Ant Nominee within five (5) Business Days following the date the Exercise Notice is delivered. (ii) include the Blue Ant Nominee among the Board’s nominees as directors of the Company on the terms set out EGLX to be nominated at each Directors Election Meeting and shall recommend that shareholders vote in this Agreement. Based upon such recommendation, concurrent with the execution and delivery of this Agreement, the Board has as of this date (i) elected the Nominees as directors favour of the Company, to serve until the annual meeting of stockholders election or re-election (as applicable) of the Company in 2012 (the “2012 Meeting”) and (ii) subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees for election as directors of the Company and recommend in favor of their election by stockholders at the 2012 Meeting. If the Nominees are elected by the Company’s stockholders to serve as directors of the Company at the 2012 Meeting, then subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees shall serve until the annual meeting of stockholders of the Company in 2013 (including any adjournment or postponement thereof) (the “2013 Meeting”), or until their earlier death, resignation, disqualification or removalBlue Ant Nominee. (b) The Company acknowledges that each Blue Ant shall, in its sole discretion, be entitled to remove the Blue Ant Nominee has satisfied all from office and to name for appointment to the Board another person designated by Blue Ant in his or her place. Upon receipt of notice from Blue Ant requiring the removal of the conditions Blue Ant Nominee pursuant to each Nominee’s nomination for election as a director this Section 2.1(b), EGLX shall procure that the Board (i) promptly takes commercially reasonable efforts to effect such removal and (ii) appoints another person designated by Blue Ant in place of such Blue Ant Nominee within five (5) Business Days following the Company at the 2012 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees and each member of the Investor Group have provided to the Company the information that date such Blue Ant Nominee is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Marketso removed. (c) Upon becoming a director of the CompanySo long as Blue Ant meets both Directors Thresholds, and if at all times while serving any time, as a result of his or her death, resignation, disqualification, removal (with or without cause) or otherwise, there exists a vacancy on the Board with respect to the director of the Companynominated, each Nominee shall: (i) comply with all reasonably customary policiesor entitled to be nominated, proceduresby Blue Ant, processes, codes, rules, standards and guidelines generally applicable to members of or for any other reason there is at any time no director nominated by Blue Ant serving on the Board, includingEGLX (acting through the Board) shall take all steps required to fill such vacancy or replace such nominee with an individual selected by Blue Ant, and such Blue Ant Nominee shall meet the Conditions below, and thereafter such individual shall serve and/or be nominated as the “Blue Ant Nominee” under this Agreement and EGLX shall not, without limitationthe written consent of Blue Ant, permit the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, prior to each Nominee’s nomination or election to the Board at the 2012 Meeting, a Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing vacancy to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such Nominee; and (iii) the Company shall be under no obligation to nominate the Nominees or any other designee of the Investors for election to the Board at the 2013 Meetingfilled.

Director Nominee. (a) Having considered the request of the Investors Stockholders that the NomineesNominee, individuals mutually an individual selected by the Investors and the CompanyStockholders, be appointed to the Company’s board of directors (the “Board”), and having received the consent of the Nominees Nominee to act as directors of the Companya director, the Corporate Governance, Nominating and Policy Committee of the Board (the “Nominating Governance Committee”) has reviewed the nominations nomination and has recommended the appointment of the Nominees Nominee as directors a director of the Company on the terms set out in this Agreement. Based upon such recommendation, concurrent with the execution and delivery of this Agreement, the Board has as of this date (i) increased the size of the Board by one director and elected the Nominees Nominee as directors a director of the Company, to serve until the annual meeting of stockholders of the Company in 2012 2008 (the “2012 2008 Meeting”) and (ii) subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, determined to nominate the Nominees Nominee for election as directors a director of the Company and recommend in favor of their election by stockholders at the 2012 2008 Meeting. If the Nominees are Nominee is elected by the Company’s stockholders to serve as directors of a director on the Company Board at the 2012 2008 Meeting, then subject to compliance by each member of the Investor Group and the Nominees with all of the terms of this Agreement and the Nominees continuing to satisfy all of the Conditions, the Nominees Nominee shall serve until the annual meeting of stockholders of the Company in 2013 2009 (including any adjournment or postponement thereof) (the “2013 2009 Meeting”), or until their his earlier death, resignation, disqualification or removal. (b) . The Company acknowledges Stockholders acknowledge and agree that each Nominee has satisfied all of the conditions to each Nominee’s nomination for election as a director of the Company at the 2012 Meeting under the Company’s Bylaws, policies and procedures, and the Nominees and each member of the Investor Group have provided to the Company the information that is required to be disclosed for candidates for directors in a proxy statement under the federal securities laws or applicable rules and regulations of The Nasdaq Stock Market. (c) Upon becoming a director of the Company, and at all times while serving as a director of the Company, each Nominee shall: (i) comply with all reasonably customary policies, procedures, processes, codes, rules, standards and guidelines generally applicable to members of the Board, including, without limitation, the Company’s code of conduct, Xxxxxxx Xxxxxxx Policy (the “Trading Policy”) and corporate governance guidelines; and (ii) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and committees of the Board, unless previously disclosed publicly by the Company. (d) The Company, each member of the Investor Group and each Nominee acknowledges and agrees that: (i) if, (A) prior to each the Nominee’s nomination or election to the Board at the 2012 Meeting2008 Meeting or (B) following such election to the Board, a the Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, the Investors shall have the right to designate another individual for appointment as a replacement nominee until one of the Investors’ designees is approved and appointed to serve as the replacement nominee, provided, however, that such replacement nominee shall be required to sign a joinder agreement agreeing to be bound by the terms and provisions of this Agreement; (ii) if, following such election to the Board, each Nominee is or otherwise becomes unable or unwilling to serve as a director of the Company, then the Company shall be under no obligation to nominate or appoint to the Board any replacement director for such the Nominee; and , and (iiiii) the Company shall be under no obligation to nominate the Nominees Nominee or any other designee of the Investors Stockholders for election to the Board at the 2013 2009 Meeting.