Common use of The Board Clause in Contracts

The Board. (a) Subject to the limitations and conditions set forth in this section and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right to be on the Board, and Xxxxxx X. May shall have a personal, nonassignable, right to be on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor shall be entitled to establish the size of the Board and to nominate the remaining members of the Board (the “Investor Nominees”). If necessary, the Board shall elect such independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, and the Existing Stockholders shall each take all actions necessary in connection therewith (provided, that such independent directors shall be reasonably acceptable to, and elected by, a majority of the Board). The foregoing provisions of this Section 7.1(a) shall also apply with respect to the Board of each direct and indirect subsidiary of the Company. Accordingly, the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause to be voted all of the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable.

The Board. Subject to the terms and conditions of this Section --------- 7, until the earlier to occur of (a) Subject the date that is both (i) at least the 180/th/ day after the consummation of an Initial Public Offering, and (ii) such time as less than 25% of the outstanding Common Stock is held by the Stockholders and their Permitted Transferees or (b) the date of the sale by FS Stockholder or its Permitted Transferees of more than 50% of the Initial Shares held by them,(the earlier of such dates described in clauses (a) or (b) referred to herein as a "Board Rights Termination Event"), at each annual or special meeting of stockholders of the limitations and conditions set forth Company, or in this section and Section 7.2any written consent executed in lieu of a stockholder meeting, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right at or pursuant to be which persons are being elected to fill positions on the Board, the FS Stockholder, the Ripplewood Stockholder and Xxxxxx X. May shall have a personalthe Existing Stockholders agree to exercise, nonassignable, right or cause to be exercised, voting rights with respect to the shares of Voting Securities then held of record or beneficially owned by them, in such a manner that (i) the candidates nominated by FS Stockholder, (ii) Xx. Xxxxxxx or, in the event of his death or disability, his representative designated in writing, and (iii) one (1) candidate nominated by the Ripplewood Stockholder shall be elected to fill and continue to hold positions on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor shall be entitled to establish the size of the Board and to nominate the remaining members of the Board (the “Investor Nominees”). If necessary, the Board shall elect such additional independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, FS Stockholder and the Existing Stockholders shall each take all actions necessary in connection therewith therewith. Xx. Xxxxxxx (providedor his representative) may not be removed from the Board without cause. In addition, Xx. Xxxxxxx shall not be disqualified from being a director by virtue of his age. If, at any time from and after the date hereof until a Board Rights Termination Event, FS Stockholder, Xx. Xxxxxxx or the Ripplewood Stockholder shall give notice of its desire to remove any director previously nominated by that such independent directors shall be reasonably acceptable to, and elected by, a majority of party to serve on the Board). The foregoing provisions of this Section 7.1(a) shall also apply , the FS Stockholder, the Ripplewood Stockholder and the Existing Stockholders agree to exercise or cause to be exercised voting rights with respect to the Board all Voting Securities held of each direct and indirect subsidiary record or beneficially owned by it or them so as to remove such director of the Company. AccordinglyIf at any time from and after the date hereof, until Board Rights Termination Event any director previously nominated by FS Stockholder, Xx. Xxxxxxx or the parties agree Ripplewood Stockholder to use their commercially reasonable efforts to ensure that serve on the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause ceases to be voted all a director (whether by reason of death, resignation, removal or otherwise), FS Stockholder, Xx. Xxxxxxx or the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor NomineeRipplewood Stockholder, as the case may be, shall be entitled to nominate a successor director to fill the vacancy created thereby, and the FS Stockholder, the Ripplewood Stockholder and the Existing Stockholders agree to exercise voting rights with respect to the shares of Voting Securities held of record or beneficially owned by them so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless to elect such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties nominee as a director of the Company. In furtherance of its obligations under this Section 7.1, and its ----------- other obligations hereunder, effective on the willful engaging date hereof the Ripplewood Stockholder shall and hereby does grant to FSEP IV an irrevocable proxy to vote the shares of the Ripplewood Stockholder in any manner that FSEP IV shall choose consistent with the terms of this Agreement, in the form attached hereto as Exhibit B. The irrevocable proxy shall be transferable to any Permitted Transferee of the FS Stockholder, and the Ripplewood Stockholder shall execute and deliver a new irrevocable proxy if necessary to effect such transfer. No Transfer by a director in conduct which is demonstrably and materially injurious the Ripplewood Stockholder to the Company, the director’s conviction of any crime constituting a felony, Permitted Transferee or other transferee (or any attempt by the director to circumvent those provisions subsequent transferee) shall be effective unless such transferee first delivers a substantially identical irrevocable proxy in favor of the Company’s by-laws referred to in Section 7.1(e) below FSEP IV or to have any its Permitted Transferee. Any such provision declared illegal, invalid, or unenforceableirrevocable proxy shall expire upon consummation of an Initial Public Offering.

The Board. (a) Subject to the limitations terms and conditions set forth of this Section --------- 7, at each annual or special meeting of stockholders of the Company, or in this section and Section 7.2any written consent executed in lieu of a stockholder meeting, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right at or pursuant to be which persons are being elected to fill positions on the Board, the FS Stockholder and Xxxxxx X. May shall have a personalthe Existing Stockholders agree to exercise, nonassignable, right or cause to be exercised, voting rights with respect to the shares of Voting Securities then held of record or beneficially owned by them, in such a manner that five candidates nominated by FS Stockholder and three candidates nominated by the Chief Executive Officer of the Company (the "CEO") shall be elected to fill and continue to hold positions on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject Pursuant to the limitations and conditions set forth in this section Investor shall be terms of the 10% Preferred Stock, holders of the 10% Preferred Stock are entitled to establish the size elect one member of the Board and Board. The parties shall use their reasonable best efforts to nominate the remaining members of ensure that the Board (the “Investor Nominees”)consists of not more than nine members. If necessary, the Board shall elect such additional independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, FS Stockholder and the Existing Stockholders shall each take all actions necessary in connection therewith (providedtherewith. If at any time from and after the date hereof, FS Stockholder or the CEO shall give notice of their desire to remove any director previously nominated by that such independent directors shall be reasonably acceptable to, and elected by, a majority of party to serve on the Board). The foregoing provisions of this Section 7.1(a) shall also apply , the FS Stockholder and the Existing Stockholders agree to exercise or cause to be exercised voting rights with respect to the Board all shares of each direct and indirect subsidiary Voting Securities held of record or beneficially owned by it or them so as to remove such director of the Company. AccordinglyIf at any time from and after the date hereof, any director previously nominated by FS Stockholder or the parties agree CEO to use their commercially reasonable efforts to ensure that serve on the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause ceases to be voted all a director (whether by reason of death, resignation, removal or otherwise), FS Stockholder or the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor NomineeCEO, as the case may be, shall be entitled to nominate a successor director to fill the vacancy created thereby, and the FS Stockholder and the Existing Stockholders agree to exercise voting rights with respect to the shares of Voting Securities held of record or beneficially owned by them so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless to elect such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties nominee as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable.

The Board. The Company shall take all actions necessary so that: (a) as of the date of this Agreement and until the Closing, the full Board shall consist of ten directors, one of whom shall be the Original Investor Designee (who shall be in the class of directors whose term of office expires at the annual meeting in 1999; PROVIDED, HOWEVER, that, if no Funding has occurred and this Agreement is terminated in accordance with its terms, the Investor shall cause the Original Investor Designee to promptly resign from the Board), and (b) as of and after the Closing, the Board shall consist of seven directors, who shall be the Original Investor Designee (who shall resign from the aforementioned class and be renominated for a one-year term), the Additional Investor Designees (who shall each serve for one-year terms), one member of the incumbent management of the Company and three independent directors (satisfying the standard of independence established in the rules of the New York Stock Exchange, Inc.) who shall be selected by the Incumbent Board with the approval of the Investor (which shall not be unreasonably withheld). Subject to applicable law, the limitations Company shall take all action necessary to effect any such election or appointment, including timely mailing to its stockholders the information required by Section 14(f) of the Exchange Act and conditions Rule 14f-1 promulgated thereunder (and the Investor shall provide to the Company on a timely basis all information required to be included in the Proxy Statement with respect to the Original Investor Designee and the Additional Investor Designees). From and after the Effective Date, the voting rights of holders of the Preferred Shares shall be as set forth in this section the Amended and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right to be on the BoardRestated Certificate of In corporation, and Xxxxxx X. May shall have a personal, nonassignable, right to be on directors nominated by the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as holders of the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor Preferred Shares shall be entitled to establish the size represented on any committee of the Board and shall constitute one half of the Executive Committee of the Board, if the Board decides to nominate have an Executive Committee. So long as any amounts are owed under the remaining members Promissory Note, at least one member of the Board (the “Investor Nominees”). If necessary, the Board shall elect such independent members, if any, as may be required under applicable law or stock exchange requirements or designated by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, and the Existing Stockholders shall each take all actions necessary in connection therewith (provided, that such independent directors shall be reasonably acceptable to, and elected by, a majority of the Board). The foregoing provisions of this Section 7.1(a) shall also apply with respect to the Board of each direct and indirect subsidiary of the Company. Accordingly, the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause to be voted all of the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable.

The Board. (a) Subject to the limitations terms and conditions set forth of this --------- Section 7, at each annual or special meeting of stockholders of the Company, or in this section and Section 7.2any written consent executed in lieu of a stockholder meeting, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right at or pursuant to be which persons are being elected to fill positions on the Board, the FS Stockholder, XXXXXX and Xxxxxx X. May shall have a personalthe Existing Stockholders agree to exercise, nonassignable, right or cause to be exercised, voting rights with respect to the shares of Voting Securities then held of record or beneficially owned by them, in such a manner that six candidates nominated by the FS Stockholder, three candidates nominated by the Chief Executive Officer of the Company (the "CEO") and one candidate nominated by XXXXXX shall be elected to fill and continue to hold positions on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject Pursuant to the limitations and conditions set forth in this section Investor shall be terms of the 10% Preferred Stock, holders of the 10% Preferred Stock are entitled to establish the size elect one member of the Board and Board. The parties shall use their reasonable best efforts to nominate the remaining members of ensure that the Board (the “Investor Nominees”)consists of not more than eleven members. If necessary, the Board shall elect such additional independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the InvestorFS Stockholder, XXXXXX and the Existing Stockholders shall each take all actions necessary in connection therewith (providedtherewith. All directors will be reimbursed for reasonable out-of- pocket expenses in connection with the performance of their duties. If at any time from and after the date hereof, the FS Stockholder, the CEO or XXXXXX shall give notice of their desire to remove any director previously nominated by that such independent directors shall be reasonably acceptable to, and elected by, a majority of party to serve on the Board). The foregoing provisions of this Section 7.1(a) shall also apply , the FS Stockholder, XXXXXX and the Existing Stockholders agree to exercise or cause to be exercised voting rights with respect to the Board all shares of each direct and indirect subsidiary Voting Securities held of record or beneficially owned by it or them so as to remove such director of the Company. AccordinglyIf at any time from and after the date hereof, any director previously nominated by the FS Stockholder, the parties agree CEO or XXXXXX to use their commercially reasonable efforts to ensure that serve on the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause ceases to be voted all a director (whether by reason of the shares beneficially owned death, resignation, removal or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to causeotherwise), the removal of (A) any Management Director for CauseFS Stockholder, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director CEO or Investor NomineeXXXXXX, as the case may be, shall be entitled to nominate a successor director to fill the vacancy created thereby, and the FS Stockholder, XXXXXX and the Existing Stockholders agree to exercise voting rights with respect to the shares of Voting Securities held of record or beneficially owned by them so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless to elect such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties nominee as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable."

The Board. (a) Subject At each annual or special meeting of stockholders of the Company, or in any written consent executed in lieu of a stockholder meeting, at or pursuant to the limitations and conditions set forth in this section and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right which persons are being elected to be fill positions on the Board, the FS Stockholder, the Sears Stockholder, the Ripplewood Stockholder, the Existing Stockholders and Xxxxxx X. May shall have a personalthe Xxxxxxxx Stockholder agree to exercise, nonassignable, right or cause to be exercised, voting rights with respect to the shares of Voting Securities then held of record or beneficially owned by them, in such a manner that (i) three (3) candidates nominated by FS Stockholder, (ii) Xx. Xxxxxxx or, in the event of his death or disability, his representative designated in writing, (iii) one (1) candidate nominated by the Ripplewood Stockholder, (iv) the Chief Executive Officer of the Company, (v) three (3) candidates nominated by the Sears Stockholder, and (vi) Xx. Xxxxxxxx, shall be elected to fill and continue to hold positions on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor shall be entitled to establish the size of The FS Stockholder may require the Board to nominate, and the Stockholders to nominate the remaining vote their shares in favor of electing, up to three (3) independent members of the Board of Directors (such persons being mutually acceptable to FS Stockholder and Sears Stockholder), and each Stockholder shall take all actions necessary in connection therewith. Upon consummation of the “Investor Nominees”). If necessaryDiscount Merger, or as soon as practicable thereafter, the Company shall have at least three (3) independent members of the Board shall elect of Directors (such independent members, if anypersons being mutually acceptable to FS Stockholder and Sears Stockholder), as may be required under by applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public OfferingDiscount Merger, and the Investor, and the Existing Stockholders each Stockholder shall each take all actions necessary in connection therewith therewith. Neither Xx. Xxxxxxx (providedor his representative) nor Xx. Xxxxxxxx may be removed from the Board without cause. In addition, Xx. Xxxxxxx shall not be disqualified from being a director by virtue of his age. The Board of Directors shall have no fewer than ten (10) and no more than fourteen (14) directors and the Stockholders shall vote to have the Bylaws provide that such independent directors the Company shall be reasonably acceptable tohave no fewer than ten (10) nor more than fourteen (14) directors. Notwithstanding the preceding sentence, in the event of an acquisition by the Company where more than 10% of the Voting Securities are issued to the seller, and elected by, a majority as an important element of the Boardtransaction additional Board seats are required (an "Acquisition Event"). The foregoing provisions of this Section 7.1(a) shall also apply with respect to the Board of each direct and indirect subsidiary of the Company. Accordingly, the parties agree to Stockholders will use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause to be voted all of the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to callmake such Board seats available including, or without limitation, taking all necessary actions to amend this Agreement and the Bylaws and cause their respective nominees to the appropriate officers and directors Board to approve an increase in the size of the Company Board, necessary amendments to callthis Agreement, a special meeting and the election of stockholders new members of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reasonBoard. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable."

The Board. (a) Subject In accordance with the provisions of the Organizational Documents, the business and affairs of the Company shall be managed by and corporate powers shall be exercised by or under the direction of the Board solely to the limitations extent required by applicable law or as set forth herein. To the extent not so required, the business and conditions affairs of the Company shall be managed by and corporate powers shall, insofar as possible by applicable law, be exercised by or under the direction of the President. (b) The initial Board shall consist of three members, two of whom shall be nominated by Toshiba UK, and one of whom shall be nominated by Sxxx Sub. In the event that a Person acquires Shares and such Person’s Ownership Percentage exceeds 10%, then such Person shall be entitled to nominate one Director and the total number of the Directors shall increase by such number (subject to the Organizational Documents); provided, however, that Toshiba UK shall have the right to nominate such number of the Directors as represents at least a majority of the members of the Board so long as Toshiba UK’s Ownership Percentage is 51% or more. If at any time the Ownership Percentage of Sxxx Sub is less than 10%, Sxxx Sub shall lose the right to nominate one Director and promptly cause the Director nominated by it to resign from the Board and waive any claims that he would otherwise have against the Company as a result of such resignation and the number of Directors will be immediately reduced by such number. Each Shareholder agrees that it will vote its Shares or execute consents, as the case may be, and take all other necessary action (including, if necessary, causing the Company to call a meeting of Shareholders) in order to ensure that the composition of the Board is at all times as set forth in this section Section 3.01 and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right that the nominees provided herein are elected to be on the Board, and Xxxxxx X. May shall have a personal, nonassignable, right to be on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor shall be entitled to establish the size of the Board and to nominate the remaining The members of the Board (the “Investor Nominees”). If necessary, the Board shall elect such independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, and the Existing Stockholders shall each take all actions necessary in connection therewith (provided, that such independent directors shall be reasonably acceptable the same as those of the US Acquisition Co.’s Board. (c) Each Shareholder agrees that it will not vote, or grant any consent with respect to, and elected by, a majority any of its Shares in favor of the Board). The foregoing provisions of this Section 7.1(a) shall also apply with respect to removal from the Board of each direct and indirect subsidiary any Director elected at the request of the Companyother Shareholders unless the Shareholder entitled to nominate such Director shall have consented to such removal in writing. AccordinglyEach Shareholder agrees to cause to be called, if necessary, a meeting of the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary Shareholders of the Company is similarly constituted. (i) Each of the Stockholders agrees and to vote or cause to be voted all of the shares Shares directly or indirectly beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder Shareholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee from the Board if the Investor Shareholder which nominated such Director requests in a writing, signed by such directorShareholder, such Director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reason. (cd) Except If, as provided a result of death, disability, retirement, resignation, removal or otherwise, there shall exist or occur any vacancy on the Board with respect to any Director, the Shareholder who nominated such Director in accordance with Section 7.1(b)(ii)3.01(b) shall within 30 days of such event notify the Board in writing of a replacement Director, each Stockholder hereby agrees that it will not vote and upon any such nomination (whether before or after such 30-day period) all Shareholders shall promptly take all actions necessary to ensure the election to the Board of such replacement Director to fill the unexpired term of the Director whom such new Director is replacing, including, if necessary, calling a meeting of Shareholders and voting their Shares thereat, or executing any written consent in lieu thereof, in favor of the removal election of any Management Director or Investor Nominee unless such removal Director. (e) Meetings of the Board and general Shareholder meetings shall be presided over by the President. One of the two Directors nominated by Toshiba UK shall be the President. One-third of the members of the Board then in office, provided such number includes at least one Director nominated by Toshiba UK, shall constitute a quorum for Causethe transaction of business at any meeting of the Board, and all actions of the Board shall require the affirmative approval of at least a majority of the votes of the Board to be cast at the relevant Board meeting. For Each Director present at a meeting of the purposes Board or any committee thereof shall have a number of this Section 7.1, “Cause” shall mean votes at such a meeting equal to (a) the willful and continued failure by a director substantially to perform his duties as a director Ownership Percentage of all classes of stock of the Company, considered as a single class, owned by the willful engaging by a director in conduct Shareholder which is demonstrably and materially injurious nominated such Director for election to the CompanyBoard, divided by (b) the number of Directors so nominated by such Shareholder who are present at such meeting. (By way of illustration, based on the Ownership Percentages as of the Closing Date, the director’s conviction Director nominated by Sxxx would have 20 votes while the Directors nominated by Toshiba UK who actually attend the meeting would collectively have 77 votes in the aggregate. As for Toshiba UK nominated Directors, if two of them attend, then each would have 38.5 votes; if only one attends, he would have 77 votes.) In the event there is a vacancy on the Board and an individual has been nominated to fill such vacancy, the first order of business at any meeting held during such time shall be to fill such vacancy. (f) Any one or more members of the Board may participate in a meeting of the Board by means of a conference telephone, video conference or similar communications equipment allowing all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at a meeting and directors so participating shall count towards a quorum for such meeting. (g) Unless otherwise prohibited by law, any action required or permitted to be taken by the Board may be taken without a meeting if all members of the Board consent in writing to the adoption of a resolution authorizing the action. The resolution and the written consents thereto by the members of the Board shall be filed with the minutes of proceedings of the Board. (h) The languages for all meetings of the Board shall be English. Translation and interpretation shall be provided as necessary or appropriate. All minutes and other documents to be presented to the Board shall be prepared (or, in the case of exhibits, summarized) in English. (i) Notice of any crime constituting a felony, or any attempt by the director to circumvent those provisions meetings of the Company’s byBoard stating the place, date and hour of the meeting shall be given not less than five (5) business days before the date of the meeting unless otherwise agreed by all directors. (j) Any Shareholder who does not have a right under this Agreement to nominate a member of the Board shall have the right to designate an observer who may attend and monitor meetings of the Board, but who shall have no voting rights. (k) Without prejudice to Section 3.02, the Board may establish any sub-laws referred to committee and delegate decision-making authority thereto as it shall in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceableits absolute discretion determine.

The Board. (a) Subject to the limitations terms and conditions set forth of this --------- Section 6, at each annual or special meeting of shareholders of Holding or in this section and Section 7.2any written consent executed in lieu of a shareholder meeting, Xxxxx X. Xxxxxxxxxxx shall have a personalat or pursuant to which persons are being elected to fill positions on the Board of Directors of Holding, nonassignablethe FS Entities agree to exercise, right or cause to be exercised, voting rights with respect to the shares of Voting Securities of Holding then held of record or beneficially owned by them, in such a manner that Xxxxx Xxxxxx shall be elected to the Board of Directors of Holding. Subject to the terms and conditions of this Section 6, at each annual or special meeting of shareholders of the Company, or in any written consent executed in lieu of a shareholder meeting, at or pursuant to which persons are being elected to fulfill positions on the Board, Holding and Xxxxxx X. May shall have a personalthe Trust agree to exercise, nonassignable, right or cause to be on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject exercised, voting rights with respect to the limitations and conditions set forth shares of Voting Securities then held of record or beneficially owned by them, in this section Investor such manner that Xxxxx Xxxxxx shall be entitled elected to establish the size of the Board and all other nominees proposed for election by Holding to nominate the remaining members of the Board (the “Investor Nominees”)shall be elected. If necessary, the Board Boards of the Company and Holding shall elect such additional independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, Holding and the Existing Stockholders Trust shall each take all actions necessary in connection therewith therewith. If at any time from and after the date hereof, Holding shall give notice of its desire to remove any director previously nominated by it to serve on the Board, Holding and the Trust agree to exercise or cause to be exercised voting rights with respect to all shares of Voting Securities held of record or beneficially owned by it or them so as to remove such director of the Company. If at any time from and after the date hereof, any director previously nominated by Holding to serve on the Board ceases to be a director (providedwhether by reason of death, that such independent directors resignation, removal or otherwise), Holding shall be reasonably acceptable toentitled to nominate a successor director to fill the vacancy created thereby, and elected by, a majority of Holding and the Board). The foregoing provisions of this Section 7.1(a) shall also apply Trust agree to exercise voting rights with respect to the Board shares of each direct and indirect subsidiary of the Company. Accordingly, the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary of the Company is similarly constituted. (i) Each of the Stockholders agrees to vote or cause to be voted all of the shares beneficially owned or Voting Securities held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by them so as to elect such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that it will not vote in favor of the removal of any Management Director or Investor Nominee unless such removal shall be for Cause. For the purposes of this Section 7.1, “Cause” shall mean the willful and continued failure by a director substantially to perform his duties as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, the director’s conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceable.

The Board. (a) Subject At each annual or special meeting of --------- stockholders of the Company, or in any written consent executed in lieu of a stockholder meeting, at or pursuant to the limitations and conditions set forth in this section and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right which persons are being elected to be fill positions on the Board, the FS Stockholder, the Sears Stockholder, the Ripplewood Stockholder and Xxxxxx X. May shall have a personalthe Existing Stockholders agree to exercise, nonassignable, right or cause to be exercised, voting rights with respect to the shares of Voting Securities then held of record or beneficially owned by them, in such a manner that (i) three (3) candidates nominated by FS Stockholder, (ii) Xx. Xxxxxxx or, in the event of his death or disability, his representative designated in writing, (iii) one (1) candidate nominated by the Ripplewood Stockholder, (iv) the Chief Executive Officer of the Company and (v) three (3) candidates nominated by the Sears Stockholder shall be elected to fill and continue to hold positions on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred Prior to collectively as an Initial Public Offering by the “Management Directors.” Subject to Company, the limitations and conditions set forth in this section Investor shall be entitled to establish the size of FS Stockholder may require the Board to nominate, and the Stockholders to nominate the remaining vote their shares in favor of electing, up to two (2) independent members of the Board of Directors (such persons being mutually acceptable to FS Stockholder and Sears Stockholder), and each Stockholder shall take all actions necessary in connection therewith. Upon consummation of an Initial Public Offering by the “Investor Nominees”). If necessaryCompany, or as soon as practicable thereafter, the Company shall have at least two (2) independent members of the Board shall elect of Directors (such independent members, if anypersons being mutually acceptable to FS Stockholder and Sears Stockholder), as may be required under by applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the Investor, and the Existing Stockholders each Stockholder shall each take all actions necessary in connection therewith therewith. Xx. Xxxxxxx (providedor his representative) may not be removed from the Board without cause. In addition, Xx. Xxxxxxx shall not be disqualified from being a director by virtue of his age. The Board of Directors shall have no fewer than nine (9) and no more than eleven (11) directors and the Stockholders shall vote to have the Bylaws provide that such independent directors the Company shall be reasonably acceptable tohave no fewer than nine (9) nor more than eleven (11) directors. Notwithstanding the preceding sentence, in the event of an acquisition by the Company where more than 10% of the Voting Securities are issued to the seller, and elected byas an important element of the transaction additional Board seats are required (an "Acquisition Event"), a majority the Stockholders will use reasonable best efforts to make such Board seats available including, without limitation, taking all necessary actions to amend this Agreement and the Bylaws and cause their respective nominees to the Board to approve an increase in the size of the Board), necessary amendments to this Agreement, and the election of new members of the Board. The foregoing Notwithstanding any other provisions of this Section 7.1(a) shall also apply with respect to the Board of each direct and indirect subsidiary of the Company. Accordingly, the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary of the Company is similarly constituted. 7.1: (i) Each at such time as either of the Stockholders agrees to vote FS Stockholder or cause to be voted all the Sears Stockholder (including, in each case, their Permitted Transferees) have sold more than one-third but less than two-thirds of the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors and the Investor Nominees. (ii) The Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to causetheir Initial Shares, the removal of (A) any Management Director for Cause, if such Cause exists, and (B) any Investor Nominee if FS Stockholder or the Investor requests such director’s removal for any reason. The Investor shall have the right to nominate a new nominee in the event any Management Director or Investor NomineeSears Stockholder, as the case may be, shall be so removed entitled to designate no more than two (2) members of the Board; (ii) at such time as either of the FS Stockholder or the Sears Stockholder (including, in each case, their Permitted Transferees) have sold two-thirds or more of their Initial Shares, the FS Stockholder or the Sears Stockholder, as the case may be, shall vacate his directorship for any reason. be entitled to designate no more than one (c1) Except member of the Board; and (iii) at such time as provided in Section 7.1(b)(ii)FS Stockholder or Sears Stockholder shall own less than 5% of the Common Stock, each Stockholder hereby agrees that it such Stockholder's right to designate members of the Board shall terminate. Sales to Permitted Transferees will not vote cause a reduction in favor of the removal of any Management Director or Investor Nominee unless such removal shall be for Cause. For the purposes of rights under this Section 7.1. If, “Cause” at any time from and after the date hereof until a Board Rights Termination Event, a Stockholder shall mean give notice of its desire to remove any director previously nominated by that party to serve on the willful Board, the Stockholders agree to exercise or cause to be exercised voting rights with respect to all Voting Securities held of record or beneficially owned by it or them so as to remove such director of the Company. If at any time from and continued failure after the date hereof, until a Board Rights Termination Event any director previously nominated by FS Stockholder, Sears Stockholder, Xx. Xxxxxxx or the Ripplewood Stockholder to serve on the Board ceases to be a director substantially (whether by reason of death, resignation, removal or otherwise), Sears Stockholder, FS Stockholder, Xx. Xxxxxxx or the Ripplewood Stockholder, as the case may be, shall be entitled to perform his duties nominate a successor director to fill the vacancy created thereby, and the Stockholders agree to exercise voting rights with respect to the shares of Voting Securities held of record or beneficially owned by them so as to elect such nominee as a director of the Company. In furtherance of its obligations under this Section 7.1, and its ----------- other obligations hereunder, effective on the willful engaging date hereof the Ripplewood Stockholder shall and hereby does grant to FSEP IV an irrevocable proxy to vote the shares of the Ripplewood Stockholder in any manner that FSEP IV shall choose consistent with the terms of this Agreement, in the form previously granted. The irrevocable proxy shall be transferable to any Permitted Transferee (other than Unaffiliated Permitted Transferees) of the FS Stockholder, and the Ripplewood Stockholder shall execute and deliver a new irrevocable proxy if necessary to effect such transfer. No Transfer by a director in conduct which is demonstrably and materially injurious the Ripplewood Stockholder to the Company, the director’s conviction of any crime constituting a felony, Permitted Transferee or other transferee (or any attempt by the director to circumvent those provisions subsequent transferee) shall be effective unless such transferee first delivers a substantially identical irrevocable proxy in favor of the Company’s by-laws referred to in Section 7.1(e) below FSEP IV or to have any its Permitted Transferee. Any such provision declared illegal, invalid, or unenforceableirrevocable proxy shall expire upon consummation of an Initial Public Offering.

The Board. (a) The parties shall use their commercially reasonable efforts to ensure that the Board consists of not more than eight members. Subject to the limitations and conditions set forth in this section and Section 7.2, Xxxxx X. Xxxxxxxxxxx shall have a personal, nonassignable, right to be on the Board, and Xxxxxx X. May shall have a personal, nonassignable, right to be on the Board. Xx. Xxxxxxxxxxx and Mr. May are hereinafter referred to collectively as the “Management Directors.” Subject to the limitations and conditions set forth in this section Investor FS Stockholder shall be entitled to establish the size of the Board and entitled, but not required, to nominate five members (the remaining members "FS Nominees") of the Board (initially, Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxx, J. Xxxxxxxxx Xxxxxxx, Xxxx X. Xxxxx and Xxx X. Xxxxx). Subject to Section 7.2, the “Investor Existing Stockholders as a group shall be entitled, but not required, to nominate three members (the "Xxxxxxx Nominees”)") of the Board. If necessary, the Board shall elect such additional independent members, if any, as may be required under applicable law or stock exchange requirements or by the National Association of Securities Dealers or underwriters in connection with the Initial Public Offering, and the InvestorFS Stockholder, the Existing Stockholders and the Existing Additional Stockholders shall each take all actions necessary in connection therewith (provided, that such independent directors shall be reasonably acceptable to, and elected by, by a majority of the BoardBoard and reasonably acceptable to Xxxxxxx). The foregoing provisions Existing Stockholders, the Additional Stockholders and any Transferee of this Section 7.1(a) shall also apply with respect the Existing Stockholders or the Additional Stockholders agree not to nominate as a member of the Board any nominee or representative of each direct and indirect subsidiary of a Person that competes with the Company. Accordingly, the parties agree to use their commercially reasonable efforts to ensure that the Board of each direct and indirect subsidiary business of the Company is similarly constitutedas conducted by the Company as of the date of such nomination. (i) Each of the Stockholders agrees to vote or cause to be voted all of the shares beneficially owned or held of record by such Stockholder at any regular or special meeting of the stockholders Stockholders of the Company called for the purpose of filling positions on the Board, or in any written consent executed in lieu of such a meeting of stockholders, and agrees to take or cause to be taken all actions otherwise necessary, to ensure the election to the Board of the Management Directors Xxxxxxx Nominees and the Investor FS Nominees. (ii) The Each of the Company and each Stockholder hereby agrees to use its reasonable best efforts to call, or cause the appropriate officers and directors of the Company to call, a special meeting of stockholders of the Company, and each Stockholder hereby agrees to vote or cause to be voted all of the Voting Securities with voting rights beneficially owned or held of record by such Stockholder for, or to take or cause to be taken all actions by written consent in lieu of any such meeting necessary to cause, the removal (with or without Cause) of (A) any Management Director Xxxxxxx Nominee if Xxxxxxx requests such director's removal for Cause, if such Cause existsany reason, and (B) any Investor FS Nominee if the Investor FS Stockholder requests such director’s 's removal for any reason. The Investor Existing Stockholders or the FS Stockholders shall have the right to nominate a new nominee in the event any Management Director Xxxxxxx Nominee or Investor FS Nominee, as the case may be, shall be so removed or shall vacate his directorship for any reason. (c) Except as provided in Section 7.1(b)(ii), each Stockholder hereby agrees that that, it will not vote in favor of the removal of any Management Director Xxxxxxx Nominee or Investor FS Nominee unless such removal shall be for Cause. For the purposes of this Section 7.1, “"Cause” " shall mean the willful and continued failure by a director substantially to perform his duties as a director of the Company, the willful engaging by a director in conduct which is demonstrably and materially injurious to the Company, or the director’s 's conviction of any crime constituting a felony, or any attempt by the director to circumvent those provisions of the Company’s by-laws referred to in Section 7.1(e) below or to have any such provision declared illegal, invalid, or unenforceablefelony which involves moral turpitude.