Common use of Nomination and Election of the New Independent Director Clause in Contracts

Nomination and Election of the New Independent Director. Promptly following the execution of this Agreement, the Company shall take all necessary actions (including increasing the number of members of the Board to ten) to nominate and appoint Xxxx Xxxxx to serve as a Class III director of the Company (the “New Independent Director”) with a term expiring at the 2017 Annual Meeting. The Board and the appropriate committee(s) of the Board shall take all necessary actions to nominate the New Independent Director and one incumbent director (the “Incumbent Class III Director” and, together with the New Independent Director, the “2017 Nominees”) for election at the 2017 Annual Meeting for terms expiring at the 2020 annual meeting of stockholders. The Board and the appropriate committee(s) of the Board shall not recommend or nominate any persons other than the 2017 Nominees for election to the Board at the 2017 Annual Meeting. The New Independent Director shall qualify as “independent” pursuant to the Securities and Exchange Commission (“SEC”) and NASDAQ listing standards, shall have relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and shall not be an Affiliate or Associate of Viex (as such terms are defined in Section 3 below). If the New Independent Director is not appointed by April 13, 2017, the Company shall extend the deadline for properly presented stockholder proposals, including director nominations, for the 2017 Annual Meeting until the date the New Independent Director, or his replacement, is appointed.Through the Standstill Period (as defined below), the Board and all applicable committees and subcommittees of the Board shall not (i) increase the size of the Board to more than eight (8) directors or (ii) seek to change the classes on which the Board members serve, in each case without the prior written consent of Viex. In the event the New Independent Director is unable to serve as a director, resigns as a director or is removed during the Standstill Period, Viex shall have the right to recommend a replacement director to the Board, and the Board shall appoint such replacement director to the Board, provided such replacement director is “independent” pursuant to the SEC and NASDAQ listing standards, has relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and is not an Affiliate or Associate of Viex, and such replacement director shall be mutually agreed upon by the Company and Viex, in good faith, with the Company’s agreement not to be unreasonably withheld.

Nomination and Election of the New Independent Director. Promptly following the execution of this Agreement, the Company shall take all necessary actions (including increasing the number of members of the Board to ten) to nominate and appoint Xxxx Xxxxx to serve as a Class III director of the Company (the “New Independent Director”) with a term expiring at the 2017 Annual Meeting. The Board and the appropriate committee(s) of the Board shall take all necessary actions to nominate the New Independent Director and one incumbent director (the “Incumbent Class III Director” and, together with the New Independent Director, the “2017 Nominees”) for election at the 2017 Annual Meeting for terms expiring at the 2020 annual meeting of stockholders. The Board and the appropriate committee(s) of the Board shall not recommend or nominate any persons other than the 2017 Nominees for election to the Board at the 2017 Annual Meeting. The New Independent Director shall qualify as “independent” pursuant to the Securities and Exchange Commission (“SEC”) and NASDAQ listing standards, shall have relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and shall not be an Affiliate or Associate of Viex (as such terms are defined in Section 3 below). If the New Independent Director is not appointed by April 13, 2017, the Company shall extend the deadline for properly presented stockholder proposals, including director nominations, for the 2017 Annual Meeting until the date the New Independent Director, or his replacement, is appointed.. Through the Standstill Period (as defined below), the Board and all applicable committees and subcommittees of the Board shall not (i) increase the size of the Board to more than eight (8) directors or (ii) seek to change the classes on which the Board members serve, in each case without the prior written consent of Viex. In the event the New Independent Director is unable to serve as a director, resigns as a director or is removed during the Standstill Period, Viex shall have the right to recommend a replacement director to the Board, and the Board shall appoint such replacement director to the Board, provided such replacement director is “independent” pursuant to the SEC and NASDAQ listing standards, has relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and is not an Affiliate or Associate of Viex, and such replacement director shall be mutually agreed upon by the Company and Viex, in good faith, with the Company’s agreement not to be unreasonably withheld.

Nomination and Election of the New Independent Director. Promptly following Effective upon the execution of this Agreement, the Company shall take all necessary actions (including increasing increase the number of members of the Board to ten) to nominate nine and appoint Xxxx Xxxxx X. Xxxxxxxxx to serve as a Class III director of the Company (the “New Independent Director”) with a term expiring at the 2017 Annual Meeting; it being understood that the Nominating and Governance Committee of the Board and the Board have determined, based on information provided by the New Independent Director, that the New Independent Director has satisfied the following conditions (the “Appointment Conditions”): such person (i) qualifies as “independent” pursuant to the Securities and Exchange Commission (“SEC”) and NASDAQ listing standards (including such standards of independence required for membership on the Compensation Committee of the Board), (ii) has relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), (iii) is not an Affiliate or Associate of Viex (as such terms are defined in Section 3 below) and (iv) has satisfied the requirements of Section 2(d) below. The So long as Viex continues to beneficially own a “net long position” (as such term is defined in Rule 14e-4 of the Securities Exchange Act of 1934, as amended, or the rules or regulations promulgated thereunder (the “Exchange Act”)) of at least 2% of the Company’s Common Stock (the “Minimum Ownership Threshold”), the Board and the appropriate committee(s) of the Board shall take all necessary actions to nominate the New Independent Director and one incumbent director (the “Incumbent Class III Director” and, together with the New Independent Director, the “2017 Nominees”) for election at the 2017 Annual Meeting for terms expiring at the 2020 annual meeting of stockholders. The Board and the appropriate committee(s) of the Board shall not recommend or nominate any persons other than the 2017 Nominees for election to the Board at the 2017 Annual Meeting. The New Independent Director shall qualify So long as “independent” pursuant Viex continues to satisfy the Securities and Exchange Commission (“SEC”) and NASDAQ listing standardsMinimum Ownership Threshold, shall have relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and shall not be an Affiliate or Associate of Viex (as such terms are defined in Section 3 below). If the New Independent Director is not appointed by April 13, 2017, the Company shall extend the deadline for properly presented stockholder proposals, including director nominations, for the 2017 Annual Meeting until the date the New Independent Director, or his replacement, is appointed.Through through the Standstill Period (as defined below), the Board and all applicable committees and subcommittees of the Board shall not (i) increase the size of the Board to more than eight seven (8) 7) directors or (ii) seek to change the classes on which the Board members serve, in each case without the prior written consent of Viex. In the event the New Independent Director is unable to serve as a director, resigns as a director or is removed during the Standstill PeriodPeriod and Viex continues to satisfy the Minimum Ownership Threshold, Viex shall have the right to recommend a replacement director to the Board, and the Board shall promptly appoint such replacement director to the Board, provided such replacement director is “independent” pursuant to satisfies the SEC and NASDAQ listing standards, has relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and is not an Affiliate or Associate of ViexAppointment Conditions, and such replacement director shall be mutually agreed upon by agreeable to the Company and Viex, in good faith, with the Company’s and Viex’s agreement not to be unreasonably withheld.

Nomination and Election of the New Independent Director. Promptly following the execution of this Agreement but no later than 90 calendar days from the date of execution of this Agreement, the Company shall take all necessary actions use its reasonable best efforts to appoint one (including increasing the number of members of the Board to ten1) to nominate and appoint Xxxx Xxxxx to serve as a Class III new independent director of the Company (the “New Independent Director”) with a term expiring at the 2017 Annual Meeting. The Board and the appropriate committee(s) of the Board shall take all necessary actions to nominate the New Independent Director and one incumbent director (the “Incumbent Class III Director” and, together with the New Independent Director, the “2017 Nominees”) for election at the 2017 Annual Meeting for terms expiring at the 2020 annual meeting of stockholders. The Board and the appropriate committee(s) of the Board shall not recommend or nominate any persons other than the 2017 Nominees for election to the Board at the 2017 Annual Meeting. The New Independent Director shall qualify Board, who qualifies as “independent” pursuant to the Securities and Exchange Commission (“SEC”) and NASDAQ listing standards, who shall have relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee)Board, and who shall not be an Affiliate or Associate of Viex (as such terms are defined in Section 3 below), and who shall be mutually agreed upon by the Company and Viex. If The search process for the New Independent Director is not appointed shall be conducted by April 13the Governance and Nominating Committee acting in good faith, 2017which shall give due consideration to any candidate recommended by Viex. After the Governance and Nominating Committee and Viex jointly recommend a New Independent Director to the Board, the Company Board shall extend vote on the deadline for properly presented stockholder proposalsappointment of such New Independent Director to the Board, including and if approved (such approval not to be unreasonably withheld or delayed), he or she shall be appointed to the Board as a Class I director nominations, for the 2017 Annual Meeting continuing in office until the date the New Independent Director, or his replacement, is appointed.2018 annual meeting of stockholders. Through the Standstill Period (as defined below), the Board and all applicable committees and subcommittees of the Board shall not (i) increase the size of the Board to more than eight nine (8) 9) directors or (ii) seek to change the classes on which the Board members serve, in each case without the prior written consent of Viex. In the event the New Independent Director is unable to serve as a director, resigns as a director or is removed during the Standstill Period, Viex the Parties shall have follow the right to recommend procedures of this Section 1(b) until a replacement director is appointed to the Board, and the Board shall appoint such replacement director to the Board, provided such replacement director is “independent” pursuant to the SEC and NASDAQ listing standards, has relevant financial and business experience to serve on the Board (including past experience serving on the board of directors of a public company and such experience as to qualify as a “financial expert” on the Audit Committee and a potential chairperson of such committee), and is not an Affiliate or Associate of Viex, and such replacement director shall be mutually agreed upon by the Company and Viex, in good faith, with the Company’s agreement not to be unreasonably withheld.