Common use of Directors Clause in Contracts

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.

Directors. (a) Following After the Acceptance Date and the Purchaser accepts for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition“Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Parent, the Offer) Purchaser or any of their respective Subsidiaries bears to the total number of Company Shares then outstanding, and, upon Merger Sub’s request at any time following . After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall cause shall, upon Parent’s request, take all actions as are necessary or desirable to enable Parent’s designees to be so elected or appointed to the Company Board, including by but not limited to promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including by amending the Company Bylaws if necessary to increase the size of the Company Board) or promptly securing the resignations of such number of its incumbent directors, and seeking and accepting resignations of incumbent directorsshall cause Parent’s designees to be so elected or appointed at such time. Following After the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestTime, the Company shall also also, upon Parent’s request, cause individuals the directors elected or designated by Parent to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Company Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage as such individuals represent on extent permitted by applicable Law and the Company BoardMarketplace Rules of The NASDAQ Global Market (the “Nasdaq”). Notwithstanding After the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use its commercially reasonable efforts also, upon Parent’s request, take all action necessary to ensure elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 5615(c)(1) and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that all Parent, the Purchaser or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the members election of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to Upon the Offer as satisfies the Minimum ConditionAcceptance Time and all times thereafter, subject to compliance with the Company’s certificate of incorporation applicable Laws and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules rules of the NASDAQ)NYSE, Parent Purchaser shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (after giving effect to the election of any additional directors elected or designated by Purchaser pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment Parent, Purchaser and actually paid by Merger Sub pursuant to the Offer) any of their Subsidiaries bears to the total number of shares of Company Shares Common Stock then outstanding. As used in this Agreement, andthe terms “beneficial ownership” (and its correlative terms) shall have the meaning assigned to such term in Rule 13d-3 under the Exchange Act. The Company and the Company Board shall, upon Merger SubPurchaser’s request at any time following the purchase of and payment for Company Shares pursuant Offer Acceptance Time, take all such actions necessary to (A) appoint to the OfferCompany Board the individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including promptly filling vacancies or newly created directorships on the Company shall cause ParentBoard, promptly increasing the size of the Company Board (including by amending the bylaws of the Company if necessary so as to increase the size of the Company Board) and/or promptly securing the resignations of such number of its incumbent directors as are necessary or desirable to enable Purchaser’s designees to be so elected or appointed designated to the Company Board, including by increasing the number of directorsand (B) cause Purchaser’s designees to be so appointed at such time. The Company shall, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to upon Purchaser’s request following the Offer as satisfies the Minimum ConditionAcceptance Time, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals Persons elected or designated by Parent Purchaser to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on (A) the Company Board of each committee of the Company Board to the extent permitted by applicable Laws and (B) each board of directors of each Subsidiary the rules of the NYSE. From and after the Offer Acceptance Time, the Company shall, at Parent’s request, take all action necessary to elect to be treated as a “controlled company” as defined in the rules of the NYSE and make all necessary filings and disclosures associated with such status. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-l in order to fulfill its obligations under this Section 1.3(a), including mailing to stockholders (together with the Schedule 14D-9) the information required by Section 14(f) of the Exchange Act and each committee thereof) that represents the same percentage Rule 14f-l as such individuals represent on is necessary to enable Purchaser’s designees to be elected or designated to the Company Board. Notwithstanding Purchaser shall supply the foregoingCompany with, until Parent and/or Merger Sub acquires a majority and be solely responsible for, information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and Affiliates to the extent required by Section 14(f) of the outstanding Company Shares on a fullyExchange Act and Rule 14f-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.l.

Directors. (a) Following Provided that the Acceptance Date and the payment by Minimum Condition is satisfied, promptly after Merger Sub accepts for such number of Company payment and pays for any Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Appointment Time”), Parent and at all times thereafter, Merger Sub shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Board of Directors of the Company Board that equals as is equal to the product of (i) the total number of directors on the Board of Directors of the Company Board (giving effect to the election of any additional directors elected or designated by Merger Sub pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or and Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Shares then outstanding; provided, however, that, subject to applicable Law and the rules of the NYSE, Merger Sub shall be entitled to designate at least a majority of the directors on the Board of Directors of the Company Shares outstanding, and, upon at all times following the Appointment Time. Upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferAppointment Time, the Company shall cause Parenttake such actions, including but not limited to filling vacancies or newly created directorships on the Board of Directors of the Company, increasing the size of the Board of Directors of the Company (including by amending the Bylaws of the Company if necessary so as to increase the size of the Board of Directors of the Company) and/or requesting and accepting the resignations of such number of its incumbent directors, as is reasonably necessary to enable Merger Sub’s designees to be so elected or appointed designated to the Company Board, including by increasing Board of Directors of the number of directorsCompany, and seeking and accepting resignations of incumbent directorsshall cause Merger Sub’s designees to be so elected or designated at such time. Following the Acceptance Date and the payment by Merger Sub for such number of The Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)shall, upon Merger Sub’s requestrequest following the Appointment Time, the Company shall also cause individuals Persons elected or designated by Parent Merger Sub to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the Board of Directors of the Company of (Ai) each committee of the Company Board and of Directors of the Company, (Bii) each board of directors (or similar body) of each Subsidiary Company Subsidiary, and (iii) each committee (or similar body) of each such board, in each case to the extent permitted by applicable Law and the rules of the NYSE. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including mailing to stockholders (together with the Schedule 14D-9, unless otherwise requested by Parent) the information required by Section 14(f) and each committee thereof) that represents Rule 14f-1 as is necessary to enable Merger Sub’s designees to be elected or designated to the same percentage as such individuals represent on Board of Directors of the Company. Merger Sub shall supply the Company Boardwith, and solely be responsible for, information with respect to Merger Sub’s designees and Parent’s and Merger Sub’s respective officers, directors and affiliates to the extent required by Section 14(f) and Rule 14f-1. Notwithstanding The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that any of Merger Sub, Parent or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the foregoing, until Parent and/or Merger Sub acquires a majority election of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment for, a number of shares of Viasoft Common Stock by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as that satisfies the Minimum Tender Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall Merger Sub will be entitled to designate the for appointment or election to Viasoft's Board of Directors, upon written notice to Viasoft, such number of directors, persons so that the designees of Merger Sub constitute the same percentage (but in no event less than a majority) of Viasoft's Board of Directors (rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) as the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to acquired in connection with the Offer) bears to the total number of Company Shares outstanding, and. Viasoft will, upon Merger Sub’s request at any time following 's request, promptly increase the purchase size of and payment for Company Shares pursuant the Board of Directors and/or secure the resignations of such number of directors as is necessary to the Offer, the Company shall cause Parent’s enable Merger Sub's designees to be elected or appointed to the Company BoardBoard of Directors and will cause Merger Sub's designees to be so elected. Subject to applicable law, Viasoft will take all action requested by Compuware necessary to effect any such election, including mailing to its shareholders the Information Statement containing the information required by increasing Section 14(f) of the number of directorsExchange Act and Rule 14f-1 promulgated thereunder, and seeking and accepting resignations Viasoft agrees to make such mailing with the mailing of incumbent directorsthe Schedule 14D-9 (provided that Merger Sub will have provided to Viasoft on a timely basis all information required to be included in the Information Statement with respect to Merger Sub's designees). Following the Acceptance Date election or appointment of Merger Sub's designees pursuant to this Section 6.7, and prior to the payment Effective Time, any amendment or termination of this Agreement, extension for the performance or waiver of the obligations or other acts of Compuware or Merger Sub or exercise or waiver of Viasoft's rights or remedies hereunder, will require the concurrence of a majority of Viasoft's directors (including, if Compuware so elects, a majority of Viasoft's non-employee directors) (or the concurrence of the sole remaining director, if there is only one remaining) then in office who are directors of Viasoft on the date hereof, or are directors (other than directors designated by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance in accordance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals this Section 6.7) designated by Parent such persons or person to constitute fill any vacancy (the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time"Continuing Directors").

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to Upon the Offer as satisfies the Minimum ConditionAcceptance Time and all times thereafter, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including and the applicable Marketplace Rules of the NASDAQ), Parent Purchaser shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Board of Directors of the Company Board that equals as is equal to the product of (i) the total number of directors on the Board of Directors of the Company Board (after giving effect to the election of any additional directors elected or designated by Purchaser pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment Parent, Purchaser and actually paid by Merger Sub pursuant to the Offer) any of their Subsidiaries bears to the total number of Company Shares then outstanding, andand Parent shall be entitled to have such designees be elected or appointed to such classes of the Board of Directors of the Company so as to be evenly distributed as possible among the three classes of directors of the Board of Directors of the Company. As used in this Agreement, the terms “beneficial ownership” (and its correlative terms) shall have the meaning assigned to such term in Rule 13d-3 under the Exchange Act. The Company and the Board of Directors of the Company shall, upon Merger SubPurchaser’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, take all such actions necessary to (A) appoint to the Board of Directors of the Company shall cause Parentthe individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including promptly filling vacancies or newly created directorships on the Board of Directors of the Company, promptly increasing the size of the Board of Directors of the Company (including by amending the bylaws of the Company if necessary so as to increase the size of the Board of Directors of the Company) and/or promptly securing the resignations of such number of its incumbent directors as are necessary or desirable to enable Purchaser’s designees to be so elected or appointed designated to the Company Board, including by increasing Board of Directors of the number of directorsCompany, and seeking and accepting resignations of incumbent directors(B) cause Purchaser’s designees to be so appointed at such time. Following the Acceptance Date and the payment by Merger Sub for such number of The Company Shares validly tendered and not properly withdrawn pursuant to shall, upon Purchaser’s request following the Offer as satisfies the Minimum ConditionAcceptance Time, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals Persons elected or designated by Parent Purchaser to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on (A) the Board of Directors of the Company of each committee of the Company Board and (B) each board of directors of each Subsidiary Directors of the Company (to the extent permitted by applicable Legal Requirements and each committee thereof) that represents the same percentage as such individuals represent on NASDAQ Marketplace Rules. From and after the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisOffer Acceptance Time, the Company shall, at Parent’s request, take all action necessary to elect to be treated as a “controlled company” as defined by NASDAQ Marketplace Rule 5615(c)(1) and make all necessary filings and disclosures associated with such status. The Company’s obligations under this Section 1.3(a) shall use its commercially reasonable efforts be subject to ensure that all Section 14(f) of the members Exchange Act and Rule 14f-l promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) of the Company Board Exchange Act and such committees and boards as Rule 14f-l in order to fulfill its obligations under this Section 1.3(a), including mailing to stockholders (together with the Schedule 14D-9) the information required by Section 14(f) of the date hereof who are not employees Exchange Act and Rule 14f-l as is necessary to enable Purchaser’s designees to be elected or designated to the Board of Directors of the Company. Purchaser shall supply the Company remain members with, and be solely responsible for, information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and Affiliates to the extent required by Section 14(f) of the Company Board Exchange Act and such committees Rule 14f-l. The provisions of this Section 1.3(a) are in addition to and boards until shall not limit any rights that any of Purchaser, Parent or any of their respective Subsidiaries may have as a record holder or beneficial owner of Shares as a matter of applicable Legal Requirements with respect to the Effective Timeelection of directors or otherwise.

Directors. (a) Following Subject to compliance with applicable Law and the Acceptance Date articles of incorporation and bylaws of the Company, promptly upon the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer representing at least such number of Shares as satisfies shall satisfy the Minimum ConditionCondition (the “Election Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directorsdirectors on the Company Board (“Directors”), rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board Directors (determined after giving effect to the election of any additional directors Directors elected or appointed pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or and Merger Sub and their respective Affiliates (as defined in Section 9.3(a) hereof) at such time (including Company Shares so accepted for payment and actually paid by Merger Sub pursuant to the OfferOffer and any Top-Up Shares (as defined in Section 1.5(a) hereof) actually acquired by Merger Sub) bears to the total number of Shares then outstanding (disregarding any outstanding Company Shares outstanding, and, upon Merger Sub’s request at Stock Options or Company Warrants or any time following the purchase of and payment for Company Shares pursuant other rights to the Offeracquire Shares). In furtherance thereof, the Company shall shall, upon request of Parent, subject to compliance with applicable Law and the articles of incorporation and bylaws of the Company, promptly (and in any event no later than one Business Day after such request by Parent) (i) take all such actions as are necessary or desirable to appoint to the Company Board the individuals so designated by Parent pursuant to this Section 1.4, including promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including by action of the Company Board and by the amendment of the bylaws of the Company, if necessary) and/or promptly seeking the resignations of such number of incumbent directors as is necessary or desirable to enable Parent’s designees to be elected to the Company Board and (ii) cause Parent’s designees to be elected or appointed to the Company Board. The Company shall, including by increasing upon request of Parent at any time after the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionElection Time, subject to compliance with applicable Law and the Company’s certificate articles of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Company, upon Merger Sub’s request, the Company shall also promptly use reasonable best efforts to cause individuals designated by Parent to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (A) each committee of the Company Board and (including, without limitation, the audit committee), (B) each board of directors (or similar body) of each Subsidiary of the Company and (and C) each committee thereof(or similar body) that represents the same percentage as of each such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeboard.

Directors. (a) Following Subject to applicable Law and provided that the Acceptance Date Minimum Tender Condition is satisfied, promptly after Acquisition Sub accepts for payment and the payment by Merger Sub pays for such number any shares of Company Shares validly Common Stock tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Appointment Time”), Parent and at all times thereafter, Acquisition Sub shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the board of directors of the Company Board that equals as is equal to the product of (i) the total number of directors on the board of directors of the Company Board (giving effect to the election of any additional directors elected or designated by Acquisition Sub pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of shares of Company Shares Common Stock beneficially owned by Parent and/or Merger and Acquisition Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of shares of Company Shares Common Stock then outstanding; provided, andhowever, upon Merger that, subject to applicable Law and the rules of the NYSE, Acquisition Sub shall be entitled to designate at least a majority of the directors on the board of directors of the Company at all times following the Appointment Time. Upon Acquisition Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferAppointment Time, the Company shall cause Parentshall, subject to the terms of the Restated Certificate of Incorporation and the Bylaws of the Company, take such actions, including but not limited to filling vacancies or newly created directorships on the board of directors of the Company, increasing the size of the board of directors of the Company (including by amending the Bylaws of the Company if necessary so as to increase the size of the board of directors of the Company) and/or requesting and accepting the resignations of such number of its incumbent directors, as is reasonably necessary to enable Acquisition Sub’s designees to be so elected or appointed designated to the Company Board, including by increasing board of directors of the number of directorsCompany, and seeking and accepting resignations of incumbent directorsshall cause Acquisition Sub’s designees to be so elected or designated at such time. Following the Acceptance Date and the payment by Merger Sub for such number of The Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)shall, upon Merger Acquisition Sub’s requestrequest following the Appointment Time, the Company shall also cause individuals Persons elected or designated by Parent Acquisition Sub to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the board of directors of the Company of (Ai) each committee of the Company Board and board of directors of the Company, (Bii) each board of directors (or similar body) of each Subsidiary subsidiary of the Company Company, and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage extent permitted by applicable Law and the rules of the NYSE. The Company’s obligations under this Section 2.4(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 2.4(a), including mailing to the Company’s stockholders (together with the Schedule 14D-9, unless otherwise requested by Parent) the information required by Section 14(f) and Rule 14f-1 as such individuals represent on is necessary to enable Acquisition Sub’s designees to be elected or designated to the board of directors of the Company. Parent shall supply the Company Boardwith, and solely be responsible for, information with respect to Acquisition Sub’s designees and Parent’s and Acquisition Sub’s respective officers, directors and affiliates to the extent required by Section 14(f) and Rule 14f-1. Notwithstanding The provisions of this Section 2.4(a) are in addition to and shall not limit any rights that any of Acquisition Sub, Parent or any of their respective affiliates may have as a record holder or beneficial owner of shares of Company Common Stock as a matter of applicable Law with respect to the foregoing, until Parent and/or Merger Sub acquires a majority election of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following the Acceptance Date and the Promptly after Purchaser first accepts for payment by Merger Sub for such number of Company any Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Appointment Time”), Parent and from time to time thereafter as Shares are accepted for payment by Purchaser, Purchaser shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals of Directors as is equal to the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors elected or designated by Purchaser pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment Parent, Purchaser and actually paid by Merger Sub pursuant to the Offer) any of its affiliates bears to the total number of Shares then outstanding; provided that in no event shall the number of Purchaser designees constitute less than a majority of the Company Shares outstanding, andBoard of Directors. The Company shall, upon Merger SubPurchaser’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, take such actions, including but not limited to promptly (and in any event to the extent reasonably practicable within one (1) Business Day) filling vacancies or newly created directorships on the Company shall cause ParentBoard of Directors, promptly (and in any event to the extent reasonably practicable within one Business Day) increasing the size of the Company Board of Directors (including by amending the Amended and Restated Certificate of Incorporation of the Company (the “Company Certificate”), the Amended and Restated Bylaws of the Company (the “Company Bylaws”, and together with the Company Certificate, the “Company Governing Documents”) of the Company if necessary so as to increase the size of the Company Board of Directors) and/or promptly (and in any event to the extent reasonably practicable within one Business Day) securing the resignations of such number of its incumbent directors as are necessary or desirable to enable Purchaser’s designees to be so elected or appointed designated to the Company Board, including by increasing the number Board of directorsDirectors, and seeking shall use its best efforts to cause Purchaser’s designees to be so elected or designated at such time. Any and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules all members of the NASDAQ)Company Board of Directors immediately prior to such appointments by Parent who remain on the Company Board after such appointments by Parent shall be referred to as “Continuing Directors” and each a “Continuing Director”. The Company shall, upon Merger SubPurchaser’s requestrequest following the Appointment Time, the Company shall also cause individuals Persons elected or designated by Parent Purchaser to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of Directors of (Ai) each committee of the Company Board and of Directors, (Bii) each board of directors (or similar body) of each Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage as such individuals represent on extent permitted by applicable Law and the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority Marketplace Rules of the outstanding Company Shares on a fully-diluted basis, Nasdaq Global Market (the “Nasdaq”). The Company shall use promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its commercially reasonable efforts obligations under this Section 1.3(a), including mailing to ensure that all of stockholders (together with the members of Schedule 14D-9) the information required by Section 14(f) and Rule 14f-1 as is necessary to enable Purchaser’s designees to be elected or designated to the Company Board and such committees and boards as of the date hereof who are not employees of Directors. Purchaser shall supply the Company remain members with information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and affiliates to the extent required by Section 14(f) and Rule 14f-1. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that any of Purchaser, Parent or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the Company Board and such committees and boards until the Effective Timeelection of directors or otherwise.

Directors. (a) Following Provided that the Acceptance Date and Minimum Condition is satisfied, promptly after the first time that Purchaser accepts for payment by Merger Sub for such number of Company any Shares validly tendered and not properly validly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Acceptance Time”), Parent and at all times thereafter, Purchaser shall be entitled to designate the elect or designate, from time to time, such number of directors, rounded up to the next whole number, on the Company Board that equals of Directors as is equal to the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors elected or designated by Purchaser pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub and Purchaser (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the OfferOffer and any Top-Up Option Shares) bears to the total number of Company Shares then outstanding, and, upon Merger Sub. Upon Purchaser’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall cause Parentas promptly as practicable take all actions, including filling vacancies or newly created directorships on the Company Board of Directors, increasing the size of the Company Board of Directors (including by amending the Company Bylaws if necessary so as to increase the size of the Company Board of Directors) and/or using its commercially reasonable efforts to secure the resignations of such number of its incumbent directors, in each case as is reasonably necessary to enable Purchaser’s designees to be so elected or appointed designated to the Company Board, including by increasing the number Board of directorsDirectors, and seeking and accepting resignations of incumbent directorsshall as promptly as practicable cause Purchaser’s designees to be so elected or designated at such time. Following The Company shall, upon Purchaser’s request following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionTime, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals Persons elected or designated by Parent Purchaser to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of Directors of (Ai) each committee of the Company Board and of Directors, (Bii) each the board of directors of each Company Subsidiary and (iii) each committee (or similar body) of each such board, in each case to the extent permitted by applicable Law and the Nasdaq Marketplace Rules. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the Company (Exchange Act and each committee thereof) that represents the same percentage as such individuals represent on the Company BoardRule 14f-1 promulgated thereunder. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the The Company shall use promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its commercially reasonable efforts obligations under this Section 1.3(a), including mailing to ensure that all of stockholders (together with the members of Schedule 14D-9) the information required by Section 14(f) and Rule 14f-1 as is necessary to enable Purchaser’s designees to be elected or designated to the Company Board and such committees and boards as of the date hereof who are not employees of Directors. Purchaser shall supply the Company remain members with, and solely be responsible for, information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and affiliates to the extent required by Section 14(f) and Rule 14f-1. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that any of Purchaser, Parent or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the Company Board and such committees and boards until the Effective Timeelection of directors or otherwise.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Offer, Parent shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board that equals of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors of the Company Board (giving effect to the election increase in the size of any additional directors such Board pursuant to this SectionSection 1.3) and (ii) the percentage that the number of Company votes represented by Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of votes represented by Shares then outstanding. In furtherance thereof, at such time the Company Shares outstanding, andshall, upon Merger Sub’s request at any time following of Parent and in compliance with Section 14(f) of the purchase Exchange Act and Rule 14f-1 promulgated thereunder, promptly take all action (including, without limitation, increasing the size of and payment for Company Shares pursuant its Board of Directors or securing the resignations of such number of its incumbent directors, or both), as is necessary to the Offer, the Company shall cause Parent’s enable such designees of Parent to be so elected or appointed to the Company Board, including by increasing the number Company's Board of directorsDirectors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant shall take all actions available to the Offer as satisfies the Minimum Condition, subject Company to compliance with the Company’s certificate cause such designees of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestParent to be so elected or appointed. At such time, the Company shall shall, if requested by Parent, also take all action necessary to cause individuals persons designated by Parent to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the Company's Board of Directors of (Ai) each committee of the Company Company's Board and of Directors, (Bii) each board of directors (or similar body) of each Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents the same percentage as of each such individuals represent on the Company Boardboard. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisSubject to applicable law, the Company shall use promptly take all action requested by Parent necessary to effect any such election, including mailing to its commercially reasonable efforts to ensure that all stockholders the information required by Section 14(f) of the members Exchange Act and Rule 14(f)-1 promulgated thereunder (or, at Parent's request, furnishing such information to Parent for inclusion in the Offer Documents initially filed with the SEC and distributed to the stockholders of the Company Company) as is necessary to enable Parent's designees to be elected to the Company's Board of Directors. Each of Parent and such committees Merger Sub shall furnish to the Company, and boards as be solely responsible for, any information with respect to itself and its nominees, directors and affiliates required by Section 14(f) of the date hereof who are not employees of the Company remain members of the Company Board Exchange Act and such committees and boards until the Effective TimeRule 14f-1 promulgated thereunder.

Directors. (a) Following Promptly following the Acceptance Date purchase of and the payment by Merger Sub for such a number of shares of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as Common Stock that satisfies the Minimum Condition, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter, Parent Purchaser shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Shares Common Stock beneficially owned by Parent and/or Merger Sub and Purchaser (including shares of Company Shares accepted Common Stock paid for payment and actually paid by Merger Sub pursuant to the Offer) ), upon such acceptance for payment, bears to the total number of shares of Company Shares Common Stock outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action within its power to cause Parent’s Purchaser's designees to be elected or appointed to the Company Board, including by including, without limitation, increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall will also use its best efforts to cause individuals individual directors designated by Parent Purchaser to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board other than any such committee of such board established to take action under this Agreement and (Bii) each board of directors of each Subsidiary (as defined below) of the Company (Company, and each committee thereof) , that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, in the event that Purchaser's designees are to be appointed or elected to the Board, until Parent and/or Merger Sub acquires the Effective Time (as defined below), such board of directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company (the "Continuing Directors"); provided that in the -------------------- event that the number of Continu- ing Directors shall be reduced below two for any reason whatsoever, any remaining Con tinuing Directors (or Continuing Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Continuing Directors for purposes of this Agreement. As used in this Agreement, the term "Subsidiary" when used with respect to any ---------- party means any corporation or other organization, whether incorporated or unincorporated, of which such party directly or indirectly owns or controls at least a majority of the outstanding Company Shares on securities or other interests having by their terms ordinary voting power to elect a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all majority of the members board of the Company Board and directors or others performing similar functions with respect to such committees and boards as corporation or other organization, or any organization of the date hereof who are not employees of the Company remain members of the Company Board and which such committees and boards until the Effective Timeparty is a general partner.

Directors. (a) Following Upon the Acceptance Date Time and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionall times thereafter, subject to compliance with the Company’s certificate of incorporation applicable Laws and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules rules of the NASDAQ)Applicable Exchange, Parent Merger Sub shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (after giving effect to the election of any additional directors elected or designated by Merger Sub pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the aggregate number of Company Shares shares of Common Stock beneficially owned by Parent and/or Parent, Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) each of their Subsidiaries bears to the total number of shares of Common Stock then outstanding. As used in this Agreement, the term “beneficial ownership” (and its correlative terms) shall have the meaning assigned to such term in Rule 13d-3 under the Exchange Act. The Company Shares outstanding, andand the Company Board shall, upon Merger Sub’s request at any time following the purchase of and payment for Acceptance Time, take all such actions necessary to implement the foregoing. In the event that Merger Sub’s designees are elected or designated to the Company Shares Board pursuant to this Section 1.3, then, until the OfferEffective Time, the Company shall cause Parent’s designees the Company Board to be elected maintain at least three (3) independent directors who are members of the Company Board on or appointed prior to the Company Boarddate hereof and who are not officers, including by increasing directors or employees of Parent, Merger Sub, or any of their Subsidiaries (the number of directors“Continuing Directors”). Notwithstanding anything in this Agreement to the contrary, and seeking and accepting resignations of incumbent directors. Following after the Acceptance Date Time and until the payment by Merger Sub Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required (i) for such number the Company to amend or terminate this Agreement, (ii) to exercise or waive any of Company Shares validly tendered and not properly withdrawn pursuant the Company’s rights hereunder, (iii) to the Offer as satisfies the Minimum Condition, subject to compliance with amend the Company’s certificate of incorporation and bylaws and applicable Legal Requirements incorporation, or (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent iv) to constitute the number of members, rounded up to the next whole number, on (A) each committee take any other action of the Company Board and (Bunder or in connection with this Agreement. The Company’s obligations under this Section 1.3 shall be subject to Section 14(f) each board of directors of each Subsidiary of the Company (Exchange Act and each committee thereof) that represents the same percentage as such individuals represent on Rule 14f-1 promulgated thereunder and Parent and Merger Sub supplying the Company Boardwith information with respect to Merger Sub’s designees and Parent’s and Merger Sub’s respective officers, directors and Affiliates to the extent required by Section 14(f) of the Exchange Act and Rule 14f-1. Notwithstanding the foregoing, until Parent and/or and Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board be solely responsible for any such information supplied by Parent and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeMerger Sub.

Directors. (a) Following After the Acceptance Date and the Purchaser accepts for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn as represents no less than a majority of the voting power of the shares of capital stock of the Company then outstanding (determined on a fully diluted basis) pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Acceptance Time”), Parent and at all times thereafter, the Purchaser shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by the Purchaser pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (and its direct or indirect wholly-owned Subsidiaries, including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) Purchaser, bears to the total number of Company Shares then outstanding, and, upon Merger Sub’s request at any time following . After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall cause Parentshall, upon the Purchaser’s request, take all actions as are necessary or desirable to enable the Purchaser’s designees to be so elected or appointed designated to the Company Board, including promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including by increasing amending the Company Bylaws if necessary to increase the size of the Company Board) and/or promptly securing the resignations of such number of its incumbent directors, and shall cause the Purchaser’s designees to be so elected or designated at such time (any and all members of the Company Board immediately prior to any designees of the Purchaser joining the Company Board and who remain on the Company Board after any designees of the Purchaser join the Company Board, the “Continuing Directors”). If at any time the number of directorsdirectors who are Continuing Directors is reduced to zero, then the other directors on the Company Board shall designate and seeking appoint to the Company Board one director who is not a stockholder or affiliate of Parent or the Purchaser (other than as a result of such designation) and accepting resignations such director shall be deemed to be a Continuing Director for purposes of incumbent directorsthis Agreement. Following After the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestTime, the Company shall also also, upon the Purchaser’s request, cause individuals the directors elected or designated by Parent the Purchaser to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Company Subsidiary and (iii) each committee (or similar body) of each such board, in each case to the extent permitted by applicable Law and the listing requirements of the Company NASDAQ Global Market (and each committee thereof) that represents “NASDAQ”). After the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use also, upon the Purchaser’s request, take all action necessary to elect to be treated as a “controlled company” as defined by NASDAQ Rule 4350(c) and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that Parent or its commercially reasonable efforts direct or indirect Subsidiaries, including the Purchaser, may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to ensure that all the election of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following the Acceptance Date and the payment by Merger Promptly after such time as Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company purchases Shares pursuant to the Offer, Sub shall be entitled, to the fullest extent permitted by law, to designate at its option up to that number of directors, rounded to the nearest whole number, of the Company's Board of Directors, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by Sub equal to the percentage of the aggregate voting power of the shares of Company Common Stock held by Parent or any of its Subsidiaries; provided, however, that if Sub's designees are elected to the Board of Directors of the Company, until the Effective Time such Board of Directors shall have at least three directors who are directors of the Company on the date of this Agreement (the "Continuing Directors"); and provided further that, in such event, (i) if the number of Continuing Directors shall be reduced below three for any reason whatsoever, the remaining Continuing Directors or Director shall designate a person or persons to fill such vacancy or vacancies, each of whom shall be deemed to be an Continuing Director for purposes of this Agreement or (ii) if no Continuing Directors then remain, the other directors shall designate three persons to fill such vacancies who shall not be officers or affiliates of the Company or any of its subsidiaries, or officers or affiliates of Parent or any of its subsidiaries, and such persons shall be deemed to be Continuing Directors for purposes of this Agreement, and in the case of either clause (i) or (ii) Sub shall cause such person or persons to be elected to fill such vacancy or vacancies. Following the election or appointment of Sub's designees pursuant to this Section 6.3 and prior to the Effective Time, any amendment, or waiver of any term or condition, of this Agreement or the Company Charter or the Amended and Restated Bylaws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Sub or Parent or waiver or assertion of any of the Company's rights hereunder, and any other consent or action by the Board of Directors of the Company with respect to this Agreement, will require the concurrence of a majority of the Continuing Directors and, except as required by applicable law, no other action by the Company, including any action by any other director of the Company, shall be required for purposes of this Agreement. To the fullest extent permitted by applicable law, the Company shall cause take all action requested by Parent that is reasonably necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees). In connection with the foregoing, the Company will promptly, at the option of Parent’s , to the fullest extent permitted by law, the Company Charter and the Amended and Restated Bylaws of the Company, either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Sub's designees to be elected or appointed to the Company Board, including by increasing the number Company's Board of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Directors as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following After the Acceptance Date and the Purchaser accepts for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition“Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Parent, the Offer) Purchaser or any of their respective Subsidiaries bears to the total number of Company Shares then outstanding, and, upon Merger Sub’s request at any time following . After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall, upon Parent’s request, take all actions as are necessary or desirable to enable Parent’s designees to be so elected or designated to the Company Board, including but not limited to promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including by amending the Company Bylaws if necessary to increase the size of the Company Board) or promptly securing the resignations of such number of its incumbent directors, and shall cause Parent’s designees to be so elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsdesignated at such time. Following After the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestTime, the Company shall also also, upon Parent’s request, cause individuals the directors elected or designated by Parent to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Company Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage as such individuals represent on extent permitted by applicable Law and the Company BoardMarketplace Rules of The NASDAQ Global Market (the “Nasdaq”). Notwithstanding After the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use its commercially reasonable efforts also, upon Parent’s request, take all action necessary to ensure elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 4350(c) and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that all Parent, the Purchaser or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the members election of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment by Merger Sub for for, any shares of Company Common Stock pursuant to the Offer, Parent, U.S. Parent or Merger Sub shall be entitled to designate, from time to time, such number of directors on the Company Shares validly tendered and not properly withdrawn pursuant to the Offer Board as satisfies the Minimum Conditionwill give Merger Sub, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation on the Company Board equal to designate the at least that number of directors, rounded up to the next whole number, on the Company Board that equals which is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) multiplied by (b) the percentage that (i) such number of shares of Company Common Stock so accepted for payment and paid for by Merger Sub plus the number of shares of Company Common Stock otherwise owned by Parent, U.S. Parent or Merger Sub or any other subsidiary of Parent bears to (ii) the percentage number of such shares outstanding, and the Company shall, at such time, cause Merger Sub’s designees to be so elected; provided, however, that in the event that Merger Sub’s designees are appointed or elected to the Company Board, until the Effective Time the Company Board shall have at least three directors who are Directors on the date of this Agreement and who will be independent for purposes of Rule 10A-3 under the Exchange Act (the “Independent Directors”); provided, further that, in such event, if the number of Company Shares beneficially owned by Parent and/or Merger Sub Independent Directors shall be reduced below three for any reason whatsoever, any remaining Independent Directors (including Company Shares accepted or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for payment purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three persons to fill such vacancies who will be independent for purposes of Rule 10A-3 under the Exchange Act, and actually paid by Merger Sub pursuant such persons shall be deemed to the Offer) bears be Independent Directors for purposes of this Agreement. Subject to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offerapplicable Law, the Company shall cause Parenttake all action requested by Parent or U.S. Parent necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Merger Sub’s designees). In connection with the foregoing, the Company shall promptly, at the option of Merger Sub, either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsBoard as provided above. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall also take all action necessary to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Company Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.

Directors. (a) Following The Company agrees it shall cause the Acceptance Date 2006 Annual Meeting to occur no later than July 6, 2006. The Company shall cause the Board and all applicable committees of the Board to nominate each of the Knightspoint Nominees, the Xxxxxxxxxx Nominees and the payment by Merger Sub Independent Nominees for election to the Board (collectively, the “Company Nominees”) at the 2006 Annual Meeting and to solicit votes for each of these nominees’ election in the same manner as votes are solicited for each of the Xxxxxxxxxx Nominees. The Company shall cause the Board to recommend that the Company’s stockholders vote for the Company Nominees as Directors of the Company at the 2006 Annual Meeting and the Company shall include this recommendation in its proxy materials for the 2006 Annual Meeting. The Company shall cause the proxy used for the 2006 Annual Meeting to solicit authority to vote for the Company Nominees at the 2006 Annual Meeting. The Company shall use commercially reasonable efforts to solicit proxies in favor of the election of the Company Nominees at the 2006 Annual Meeting. The Company shall cause the Board to take all necessary action so that effective as of the election of Directors at the 2006 Annual Meeting the size of the Board shall be fixed at nine members. If any Independent Nominee cannot serve as a Director on the date of the 2006 Annual Meeting but can serve at a later date prior to the Company’s 2007 Annual Meeting of Stockholders (the “2007 Annual Meeting”), the Knightspoint Entities and the Company agree (i) to appoint such number of Company Shares validly tendered Independent Nominee to the Board at the time such person is able to serve following the 2006 Annual Meeting and not properly withdrawn (ii) to hold open the Director seat created pursuant to the Offer preceding sentence for the purpose of appointing such Independent Nominee. If any Knightspoint Nominee is unable or elects not to continue to serve as satisfies a Director once elected after the Minimum Condition2006 Annual Meeting, subject to compliance with then the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent Knightspoint Entities shall be entitled to designate select a replacement Director, and each of the number Knightspoint Entities and the Xxxxxxxxxx Entities shall cause its respective Directors to elect such replacement Director. If any Xxxxxxxxxx Nominee is unable or elects not to continue to serve as a Director once elected at the 2006 Annual Meeting, then the Xxxxxxxxxx Entities shall be entitled to select a replacement Director, and each of directorsthe Knightspoint Entities and the Xxxxxxxxxx Entities shall cause its Directors to elect such replacement Director. If any Independent Director is unable or elects not to continue to serve as a Director once elected at the 2006 Annual Meeting, rounded up to the next whole number, on then the Company shall select a replacement Director, and each of the Knightspoint Entities and the Xxxxxxxxxx Entities shall cause its Directors to elect such replacement Director. The Company and the Board that equals shall not submit any matters to a stockholder vote at the product of 2006 Annual Meeting other than: (i) the total number election of directors on the Company Board (giving effect Nominees to the election of any additional directors pursuant to this Section) Board, and (ii) the percentage that ratification of the number appointment of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeoutside auditor.

Directors. (a) Following the Acceptance Date and Subject to compliance with applicable Law, promptly upon the payment by Merger Sub Purchaser for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer representing at least such number of Shares as satisfies shall satisfy the Minimum Condition, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter as Shares are acquired by Purchaser, Parent Purchaser shall be entitled to designate the for appointment or election such number of directors, rounded up to the next whole number, on the Board of Directors of Company Board that equals as is equal to the product of (i) the total number of directors on the Board of Directors of Company Board (determined after giving effect to the election of any additional directors pursuant to elected as contemplated by this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) Purchaser or its Affiliates bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and then outstanding (including for this purpose all Shares that are accepted for payment for Company Shares pursuant to the Offer, the but excluding any shares held by Company and its Subsidiaries), and Company shall cause Parentpromptly take all actions necessary to allow Purchaser’s designees to be elected or appointed so elected, including, if necessary, (1) calling for a meeting of the Board of Directors and/or shareholders of Company to elect Purchaser’s designees, (2) to the extent necessary, calling for a meeting of the Board of Directors and shareholders of the Company Board, including by for the purpose of increasing the number size of directors, and seeking and accepting resignations such Board of incumbent directors. Following Directors or obtaining the Acceptance Date and the payment by Merger Sub for resignation of such number of Company Shares validly tendered and not properly withdrawn pursuant its directors as is necessary to give effect to the Offer foregoing provision and (3) registering at least one Share, duly endorsed and delivered by the Purchaser or its Affiliates for this purpose, in the name of each such designee in the books of Company to qualify him or her as satisfies the Minimum Conditiona director. At such time, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Company shall also, upon Merger Sub’s requestthe request of Purchaser, the Company shall also cause individuals such persons designated by Parent Purchaser to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on Company’s Board of Directors of (Ai) each committee of Company’s Board of Directors, subject to compliance with applicable securities laws and the Company Board rules of the Nasdaq Global Market (“NASDAQ”), SRC and PSE, and (Bii) each board of directors (or similar body) of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as of each such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeboard (or similar body).

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of shares of Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies (the Minimum Condition“Appointment Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQSection 1.3(b), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the number of shares of Company Shares beneficially Common Stock owned by Parent and/or or Merger Sub (including shares of Company Shares Common Stock accepted for payment and actually paid by Merger Sub pursuant to the Offerpayment) bears to the total number of shares of Company Shares Common Stock outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action reasonably necessary to cause Parent’s designees to be elected or appointed to the Company Board, including by including, without limitation, at the option of Parent, increasing the number of directors, and or seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant , or both; provided, however, that prior to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestEffective Time, the Company Board shall also cause individuals designated by Parent always have at least two members who were directors of the Company prior to constitute consummation of the Offer (each, a “Continuing Director”). If the number of members, rounded up Continuing Directors is reduced to fewer than two for any reason prior to the next whole numberEffective Time, on (A) each committee of the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy. Notwithstanding anything in this Agreement to the contrary, if Parent’s designees are elected to the Company Board and (B) each board prior to the Effective Time, the affirmative vote of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, Continuing Directors shall be required for the Company shall use its commercially reasonable efforts to ensure that all (i) amend or terminate this Agreement or agree or consent to any amendment or termination of this Agreement, (ii) waive any of the members Company’s rights, benefits or remedies hereunder, (iii) extend the time for performance of Parent’s and Merger Sub’s respective obligations hereunder, or (iv) approve any other action by the Company which is reasonably likely to adversely affect the interests of the Company Board Stockholders (other than Parent, Merger Sub and such committees and boards as of the date hereof who are not employees of their affiliates (other than the Company remain members of and its Subsidiaries)) with respect to the Company Board and such committees and boards until the Effective Timetransactions contemplated by this Agreement.

Directors. (a) Following Promptly upon the Acceptance Date satisfaction of the Minimum Tender Condition and the acceptance for payment of, and payment by Merger Sub for such number of for, any Company Common Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionOffer, Merger Sub shall, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act and Rule 14f-1 promulgated thereunder, Parent shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up down to the next whole number, on the Company Board that equals which is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (iib) a fraction, the percentage that numerator of which is the number of Company Common Shares beneficially owned by Parent and/or Merger Sub (including Company Shares so accepted for payment and actually paid for by Merger Sub pursuant to and the Offer) bears to denominator of which is the total number of Company Common Shares outstanding, and, upon Merger Sub’s request outstanding at any the time following the purchase of and acceptance for payment for of Company Common Shares pursuant to the Offer, and the Company shall shall, promptly upon such designation by Merger Sub, cause Parent’s Merger Sub's designees to be elected or appointed to the Company Board; provided, including by increasing however, that during the period commencing with the election or appointment of Merger Sub's designees to the Company Board until the Effective Time or earlier termination of this Agreement, the Company Board shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company or representatives of any affiliates of the Company (the "Independent Directors"); and provided further, however, that if during such period the number of directorsIndependent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill any such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who are not officers, affiliates, associates or shareholders of Parent or Merger Sub, and seeking and accepting resignations such persons shall be deemed to be Independent Directors for purposes of incumbent directorsthis Agreement. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant Subject to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestlaw, the Company shall also cause individuals designated take all action requested by Parent to constitute for the number purpose of memberseffecting any such election or appointment of Merger Sub's designees. In connection with the foregoing, rounded up to the next whole numberCompany shall promptly, on (A) each committee at the option of Merger Sub, either increase the size of the Company Board or accept the resignations (which resignations the Company will obtain on or before the date of this Agreement, and (B) each board of directors of each Subsidiary which resignations shall only be effective as of the time of, and shall be conditional upon, acceptance for payment of any Company (and each committee thereofCommon Shares pursuant to the Offer) that represents the same percentage of such number of its current directors as such individuals represent on is necessary to enable Merger Sub's designees to be elected or appointed to the Company BoardBoard as provided above. Notwithstanding Prior to the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisEffective Time, the Company shall use its commercially reasonable efforts to ensure that all cause each member of the members Company Board, other than Merger Sub's designees, to execute and deliver a letter effectuating his or her resignation as a director of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until effective immediately prior to the Effective Time.

Directors. (a) Following the Acceptance Date Promptly upon acceptance for payment of, and the payment by Merger Sub for such number for, any shares of the Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies Offer, the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent or Merger Sub shall be entitled to designate designate, from time to time, such number of persons for election or appointment to the Company Board as will give Merger Sub representation on the Company Board equal to at least such number of directors, rounded up to the next nearest whole number, on the Company Board that equals is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or appointed pursuant to this Sectionsentence) multiplied by (b) a fraction (i) the numerator of which shall be the number of shares of the Company Common Stock so accepted for payment and paid for by Merger Sub plus the number of shares of the Company Common Stock otherwise owned by Parent or Merger Sub or any Subsidiary of Parent and (ii) the percentage that denominator of which shall be the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number shares of Company Shares Common Stock outstanding, andand the Company shall, upon at such time, cause Merger Sub’s request at any time following designees to be so elected or appointed; provided, however, that in the purchase of and payment for Company Shares pursuant event that Merger Sub’s designees are appointed or elected to the OfferCompany Board, until the Effective Time the Company Board shall have at least three (3) directors who are directors on the date of this Agreement and who will be independent for purposes of Rule 10A-3 under the Exchange Act (the “Independent Directors”); provided, further, that, in such event, if the number of Independent Directors shall be reduced below three (3) for any reason whatsoever, any remaining Independent Directors (or Independent Director, if there shall be only one (1) remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three (3) persons to fill such vacancies who will be independent for purposes of Rule 10A-3 under the Exchange Act and the applicable stock exchange requirements, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. The Company’s obligations under this Section 7.16 shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Subject to applicable law, the Company shall cause Parentmake commercially reasonable efforts to effect any such election, including mailing to its shareholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Merger Sub’s designees). In connection with the foregoing, the Company shall promptly, at the option of the Parent or Merger Sub, either increase the authorized number of directors of the Company Board or use reasonable efforts to obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsBoard as provided above. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall also shall, if requested by Parent, take commercially reasonable efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next nearest whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company Company’s Subsidiaries (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding Board in each case to the foregoing, until Parent and/or Merger Sub acquires a majority extent permitted by applicable law or the rules of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNasdaq.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn Purchaser pursuant to the Offer of such number of Shares as satisfies shall satisfy the Minimum Condition, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter, Parent Purchaser shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as shall give Purchaser representation on the Company Board equal to the product of (i) the total number of directors on the Company Board (after giving effect to any increase in the election number of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the such number of Company Shares beneficially owned by Parent and/or Merger Sub so purchased (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offerpurchased Top-Up Shares) bears to the total number of Company Shares outstanding, andand the Company shall, upon Merger Sub’s request at any time following by Purchaser, promptly increase the purchase size of and payment for Company Shares pursuant to the Offer, the Company Board or use its reasonable best efforts to secure the resignations of such number of directors as is necessary to provide Purchaser with such level of representation and shall cause ParentPurchaser’s designees to be so elected or appointed appointed; provided, however, that Parent shall be entitled to designate at least a majority of the directors on the Company Board, including by increasing Board (as long as Parent and its Affiliates Beneficially Own a majority of the number Shares of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate ). Subject to subsection (c) of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestthis Section 1.3, the Company shall also cause individuals designated by Parent Purchaser to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent of the entire Company Board (but no less than a majority) on the following: (i) each committee of the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority ; (ii) each Board of Directors and each committee thereof of each wholly owned Subsidiary of the outstanding Company Shares and (iii) the designees, appointees or other similar representatives of the Company on a fullyeach Board of Directors (or other similar governing body) and each committee thereof of each non-diluted basiswholly owned Subsidiary. The Company’s obligations to appoint designees to the Company Board shall be subject to Section 14(f) of the Exchange Act. At the request of Purchaser, the Company shall use take all actions necessary to effect any such election or appointment of Purchaser’s designees, including mailing to its commercially reasonable efforts to ensure that all stockholders the information required by Section 14(f) of the members of Exchange Act and Rule 14f-l promulgated thereunder which, unless Purchaser otherwise elects, shall be so mailed together with the Schedule 14D-9. Parent and Purchaser shall supply to the Company Board all information with respect to themselves and their respective officers, directors and Affiliates required by such committees Section and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeRule.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and payment for, Shares by ACo pursuant to the payment by Merger Sub for Offer, ACo shall be entitled to designate such number of Company Shares validly tendered and not properly withdrawn pursuant to directors on the Offer TPC Board of Directors as satisfies the Minimum Conditionwill give ACo, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQExchange Act, a majority of such directors, and TPC shall, at such time, cause ACo's designees to be so elected by its existing Board of Directors; PROVIDED, HOWEVER, that in the event that ACo's designees are elected to the TPC Board of Directors, until the Effective Time such Board of Directors shall have at least three directors who are directors of TPC on the date of this Agreement (the "INDEPENDENT DIRECTORS"); and PROVIDED FURTHER that, Parent shall be entitled to designate in such event, if the number of directorsIndependent Directors shall be reduced below three for any reason whatsoever, rounded up the remaining Independent Directors or Director shall designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three persons to fill such vacancies who shall not be officers or affiliates of TPC or any of its Subsidiaries or of PHI or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, TPC shall take all action requested by PHI necessary to effect any such election, including mailing to its stockholders an Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and TPC agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that ACo shall have provided to the next whole numberCompany on a timely basis all information required to be included in the Information Statement with respect to ACo's designees). In connection with the foregoing, on TPC will promptly, at the Company option of PHI, either increase the size of TPC's Board that equals of Directors and/or obtain the product resignation of (i) the total such number of its current directors on the Company Board (giving effect as is necessary to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s enable ACo's designees to be elected or appointed to the Company Board, including by increasing the number TPC's Board of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Directors as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of shares of Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ"APPOINTMENT TIME"), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Company's Board of Directors that equals the product of (i) the total number of directors on the Company Company's Board of Directors (giving effect to the election of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the number of shares of Company Shares beneficially Common Stock owned by Parent and/or or Merger Sub (including shares of Company Shares Common Stock accepted for payment and actually paid by Merger Sub pursuant to the Offerpayment) bears to the total number of shares of Company Shares Common Stock outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action reasonably necessary to cause Parent’s 's designees to be elected or appointed to the Company BoardCompany's Board of Directors, including by including, without limitation, at the option of Parent, increasing the number of directors, and or seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant , or both; PROVIDED, HOWEVER, that prior to the Offer as satisfies the Minimum ConditionEffective Time, subject to compliance with the Company’s certificate 's Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Directors shall always have at least two members who were directors of the NASDAQCompany prior to consummation of the Offer (each, a "CONTINUING DIRECTOR"), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute . If the number of members, rounded up Continuing Directors is reduced to fewer than two for any reason prior to the next whole numberEffective Time, on (A) each committee the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy. Notwithstanding anything in this Agreement to the contrary, if Parent's designees are elected to the Company's Board of Directors prior to the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required for the Company Board to (a) amend or terminate this Agreement or agree or consent to any amendment or termination of this Agreement, (b) waive any of the Company's rights, benefits or remedies hereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (Bd) each board approve any other action by the Company which is reasonably likely to adversely affect the interests of directors of each Subsidiary the stockholders of the Company (other than Parent, Merger Sub and each committee thereof) that represents the same percentage as such individuals represent on their affiliates (other than the Company Board. Notwithstanding and its Subsidiaries)) with respect to the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timetransactions contemplated by this Agreement.

Directors. (a) Following Effective upon the Acceptance Date Time and the payment by Merger Sub for such number from time to time thereafter (including upon acceptance of Company Shares validly Common Stock tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQduring any subsequent offering period), Parent shall be entitled to designate designate, to serve on the Company’s board of directors, the number of directors, rounded up to the next whole number, on the Company Board that equals the product of determined by multiplying: (i) the total number of directors on the Company Board Company’s board of directors (giving effect to any increase in the election size of any additional the Company’s board of directors effected pursuant to this Section) and Section 1.3(a)); by (ii) a fraction having a numerator equal to the percentage that the aggregate number of shares of Company Shares Common Stock then beneficially owned by Parent and/or Merger or Acquisition Sub (including all shares of Company Shares Common Stock accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears ), and having a denominator equal to the total number of shares of Company Shares outstandingCommon Stock then issued and outstanding (provided, andhowever, upon Merger Subthat, in no event shall Parent’s request at any time following director designees constitute less than a majority of the purchase entire board of and payment for Company Shares pursuant to the Offer, directors of the Company after the Acceptance Time). The Company shall take all action necessary to cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number Company’s board of directors, and including seeking and accepting resignations of incumbent directors. Following directors and, if such resignations are not obtained, increasing the Acceptance Date and the payment by Merger Sub for such number size of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate board of incorporation directors. From and bylaws and applicable Legal Requirements (including after the applicable Marketplace Rules of Acceptance Time, to the NASDAQ), upon Merger Sub’s requestextent requested by Parent, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on on: (A1) each committee of the Company Board Company’s board of directors; and (B2) each the board of directors of each Subsidiary of the Company (and each committee thereof) that represents at least the same percentage as such individuals designated by Parent represent on the board of directors of the Company. After the Acceptance Time, upon Parent’s request, the Company Boardshall take all action necessary to elect to be treated as a “controlled company” as defined by Nasdaq Stock Market Rule 4350(c) and make all necessary filings and disclosures associated with such status. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority provisions of the outstanding Company Shares on a fully-diluted basisthis Section 1.3, the Company shall use its commercially reasonable efforts to ensure that that, at all times after the Acceptance Time and prior to the Effective Time, at least two of the members of the Company’s board of directors are individuals who were directors of the Company Board on the date of this Agreement (“Continuing Directors”); each of whom shall be “independent directors” as defined by Rule 5605(a)(2) of the Nasdaq Marketplace Rules; provided, however, that: (x) if at any time after the Acceptance Time and prior to the Effective Time there shall be only one Continuing Director serving as a director of the Company for any reason, then the Company’s board of directors shall cause an individual who satisfies the aforementioned independence requirements and selected by the remaining Continuing Director to be appointed to serve on the Company’s board of directors (and such committees individual shall be deemed to be a Continuing Director for all purposes under this Agreement); and boards as (y) if at any time after the Acceptance Time and prior to the Effective Time no Continuing Directors remain on the Company’s board of directors, then the date hereof Company’s board of directors shall appoint two individuals who satisfy the aforementioned independence requirements and who are not officers, employees or Affiliates of the Company remain members Company, Parent or Acquisition Sub to serve on the Company’s board of the Company Board directors (and such committees and boards until the Effective Timeindividuals shall be deemed to be Continuing Directors for all purposes under this Agreement).

Directors. (a) Following Promptly upon the Acceptance Date purchase of and acceptance for payment for any Shares (including, without limitation, all Shares subject to the payment Tender and Option Agreement) by Merger Acquisition Sub for such number or any affiliate of Company Shares validly tendered and not properly withdrawn Acquisition Sub pursuant to the Offer as satisfies or the Tender and Option Agreement which represents the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent Acquisition Sub shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors then serving on the Company such Board (after giving effect to the election of any additional directors designated by Acquisition Sub pursuant to this Section) and (ii) multiplied by the percentage that ratio of the aggregate number of Company Shares beneficially owned by Parent and/or Merger Acquisition Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears any of its affiliates to the total number of Shares then outstanding. The Company Shares outstanding, andshall, upon Merger request of Acquisition Sub’s request at any time following the purchase of and payment for Company Shares pursuant , take all action necessary to the Offer, the Company shall cause Parent’s Acquisition Sub's designees to be elected or appointed to the Company Board, including by including, without limitation, increasing the number size of directorsthe Board or, and seeking and accepting at the Company's election, securing the resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant its incumbent directors as is necessary to enable Acquisition Sub's designees to be so elected or appointed to the Offer as satisfies the Minimum ConditionBoard, subject and shall cause Acquisition Sub's designees to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestbe so elected or appointed. At such time, the Company shall also cause individuals persons designated by Parent Acquisition Sub to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Subsidiary (as defined below) of the Company and (and iii) each committee thereof(or similar body) of each such board. In the event that represents Acquisition Sub's designees are elected to the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, the Board shall have at least two directors who are directors on the date hereof (the "Company Directors"). In such event, if either of the Company Directors is unable to serve for any reason whatsoever, the other directors shall designate a person to fill such vacancy who shall not be a designee, shareholder or affiliate of Acquisition Sub to be a Company Director for purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, in the event that Acquisition Sub's designees are elected to the Board, after the acceptance for payment of shares of Common Stock pursuant to the Offer and prior to the Effective Time, the affirmative vote of the Company Directors shall be required to (a) amend or terminate this Agreement by the Company, (b) exercise or waive any of the Company's rights, benefits or remedies hereunder, (c) extend the time for performance of Acquisition Sub's respective obligations hereunder or (d) take any other action by the Board of Directors of the Company in connection with this Agreement.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of Company any Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionOffer, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter, Parent shall be entitled to designate the number of directorsdirectors (the "Parent Designees"), rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to any increase in the election number of any additional directors pursuant to this Section) and multiplied by (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted or Purchaser following the acceptance for payment and actually paid by Merger Sub of Shares pursuant to the Offer) Offer bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall promptly take all action necessary to cause Parent’s designees each of the Parent Designees to be elected or appointed to the Company Board, including by increasing the number size of directorsthe Company Board and seeking, accepting and seeking and accepting securing resignations of incumbent directors. Following the Acceptance Date At such time, and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant from time to time thereafter, to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestextent requested by Parent, the Company shall also use its best efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board Board of directors Directors of each Company Subsidiary of the Company (as hereinafter defined), and each committee thereof) , that represents the same percentage as such individuals the Parent Designees represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority foregoing provisions of the outstanding Company Shares on a fully-diluted basisthis Section 1.4, the Company parties hereto shall use its commercially reasonable their respective best efforts to ensure that all at least two of the members of the Company Board and such committees and boards as shall, at all times prior to the Effective Time, be directors of the Company who were directors of the Company on the date hereof (the "Continuing Directors"), provided that if there shall be in office fewer than two Continuing Directors for any reason, the Company Board shall cause a person designated by the remaining Continuing Director to fill such vacancy who shall be deemed to be a Continuing Director for all purposes of this Agreement, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate two persons to fill such vacancies who are not officers or employees or affiliates of the Company remain members Company, Parent or Purchaser or any of the Company Board their respective affiliates and such committees and boards until the Effective Timepersons shall be deemed to be Continuing Directors for all purposes of this Agreement.

Directors. (a) Following Subject to applicable Law and applicable marketplace rules of The NASDAQ Stock Market LLC applicable to the Acceptance Date Company at such time, promptly following the acceptance for payment of and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to and in accordance with the Offer as satisfies satisfying the Minimum ConditionTender Condition (the “Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules as long as Parent directly or indirectly beneficially owns not less than a majority of the NASDAQ)issued and outstanding Shares, Parent Merger Sub shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of Company Shares beneficially owned by Parent and/or Parent, Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) or any other Subsidiary of Parent bears to (B) the total number of Shares that are issued and outstanding (not determined on a Fully Diluted Basis). The Company Shares outstandingshall also, upon the request of Parent, cause such Persons designated by Merger Sub to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of each committee of the Company Board, subject to compliance with applicable securities Laws and the marketplace rules of The NASDAQ Stock Market LLC (other than any committee comprised solely of Continuing Directors established to take action under this Agreement, which shall be permitted to meet without the presence of other directors solely for purposes of considering and, upon if necessary, taking action referred to in Section 1.3(c) below); provided, however, that in the event that Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant designees are appointed or elected to the OfferCompany Board, until the Effective Time, the Company Board shall have at least two (2) directors who are directors on the date of this Agreement and who qualify as independent directors for purposes of the continued listing requirements of The NASDAQ Stock Market LLC and the SEC rules and regulations (such directors, the “Continuing Directors”); and provided further that, in such event, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the Company Board shall cause the Person(s) designated by the remaining Continuing Director(s) to fill such vacancy(ies), and such Person(s) shall be deemed to be a Continuing Director(s) for purposes of this Agreement or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate two (2) Persons to fill such vacancies who are not officers, employees, shareholders or Affiliates of the Company, Parent, Merger Sub or any other Subsidiary of Parent, and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parenteither increase the size of the Company Board or obtain the irrevocable resignation of such number of its current directors, or both, as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directorsBoard as provided above, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant shall take all actions available to the Offer as satisfies Company to cause Merger Sub’s designees to be so elected or appointed (the Minimum Condition, subject to compliance with date on which the majority of the Company’s certificate directors are designees of incorporation and bylaws and applicable Legal Requirements (including Merger Sub that have been effectively appointed to the applicable Marketplace Rules of Company Board in accordance herewith, the NASDAQ“Board Appointment Date”). The Company shall use its reasonable best efforts to cause the Board Appointment Date to be the same day as the Acceptance Time. Upon request by Parent, upon Merger Sub’s requestprior to the Acceptance Time, the Company shall also cause individuals designated by Parent to constitute obtain the applicable irrevocable resignations from that number of members, rounded up to the next whole number, on directors which represents one (A1) each committee director more than a simple majority of the Company Board Board, which resignations will each be contingent solely upon the consummation of the Offer, and the Company shall provide to Parent complete and correct copies of such resignations promptly (Band in no event later than two (2) each board of directors of each Business Days) following the request therefor. The parties hereto acknowledge and agree that, from and after the Acceptance Time and for so long as Parent, Merger Sub and any Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or or Merger Sub acquires (excluding the Company) own at least a majority of the issued and outstanding shares of the Company Shares on a fully-diluted basisCommon Stock, the Company shall use its commercially reasonable efforts to ensure that all be a “controlled company” (within the meaning of the members listing requirements of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNASDAQ Global Market).

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number Purchaser of Company any Shares validly tendered and not properly withdrawn pursuant to the Offer Offer, and from time to time thereafter as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Shares are acquired by Purchaser, Parent shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board of Directors as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors equal to at least that number of directors which equals the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub or any affiliate of Parent (including Company for purposes of this Section 1.3 such Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, but excluding Shares held by the Company shall cause Parent’s designees or any of its Subsidiaries) bears to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsShares outstanding. Following the Acceptance Date and the payment by Merger Sub for At each such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall will also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board and of Directors, (Bii) each if requested by Parent, the board of directors of each Subsidiary of the Subsidiaries and (iii) if requested by Parent, each committee of such board to include persons designated by Parent constituting the same percentage of each such committee or board as Parent's designees constitute on the Board of Directors. The Company shall, upon request by Parent, promptly increase the size of the Board of Directors or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors in accordance with the terms of this Section 1.3 and shall cause Parent's designees to be so elected; PROVIDED, HOWEVER, that, in the event that Parent's designees are appointed or elected to the Board of Directors, until the Effective Time (as defined in Section 2.2 hereof) the Board of Directors shall have at least one director who is a director on the date hereof and who is not an officer of the Company and is not a designee, stockholder, affiliate or associate (and each committee thereofwithin the meaning of the federal securities laws) of Parent (one or more of such directors, the "Independent Directors"); PROVIDED, FURTHER, that represents if no Independent Directors remain, the same percentage as such individuals represent on other directors shall designate one person to fill one of the vacancies who shall be neither an officer of the Company Boardnor a designee, stockholder, affiliate or associate of Parent, and such person shall be deemed to be an Independent Director for purposes of this Agreement. Subject to applicable law, the Company shall promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the foregoingcontrary, until following the time directors designated by Parent and/or Merger Sub acquires constitute a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts Board of Directors and prior to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of Parent's obligations hereunder or (iv) take any other action by the Company in connection with this Agreement required to be taken by the Board of Directors.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number Purchaser of Company Shares validly tendered and not properly withdrawn --------- pursuant to the Offer Offer, and from time to time thereafter as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Shares are acquired by Purchaser, Parent or their affiliates, Purchaser shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as will give Purchaser, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to that number of directors which equals the product of (i) the total number of directors on the Board of Directors of the Company Board (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub Parent, Purchaser or any of their affiliates (including Company for purposes of this Section 1.3 such Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer, but excluding Shares held by the Company or any of its subsidiaries) bears to the total number of shares of Company Shares Common Stock then issued and outstanding. At such times, andif requested by Purchaser, the Company will use its best efforts to cause each committee of the Board of Directors of the Company and the Board of Directors of each subsidiary of the Company to include persons designated by Purchaser constituting the same percentage of each such committee and the Board of Directors of each subsidiary of the Company as Purchaser's designees are of the Board of Directors of the Company. The Company shall, upon Merger Sub’s request at any time following by Purchaser, promptly increase the purchase size of and payment for the Board of Directors of the Company Shares pursuant as is necessary to enable Purchaser's designees to be elected to the OfferBoard of Directors of the Company in accordance with the terms of this Section 1.3 and shall cause Purchaser's designees to be so elected; provided, however, that, if -------- ------- Purchaser's designees are appointed or elected to the Board of Directors of the Company, until the Effective Time (as hereinafter defined) the Board of Directors of the Company shall have at least two (2) directors who are directors on the date hereof and who are neither officers of the Company nor designees, stockholders, affiliates or associates (within the meaning of the federal securities laws) of Parent (one or more of such directors, the "Independent Directors"); provided further, that if less than two (2) Independent Directors remain, the remaining Independent Director (if any) or if no Independent Directors remain, the other directors, shall designate persons to fill the vacancies who shall not be either officers of the Company or designees, shareholders, affiliates or associates of Parent, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, the Company shall cause Parent’s designees promptly take all action necessary pursuant to be elected Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or appointed an amendment thereof or an information statement pursuant to Rule 14f- 1 if Purchaser has not theretofore designated directors) such information with respect to the Company Boardand its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent and Purchaser will supply the Company and be solely responsible for any information with respect to itself and its nominees, including officers, directors and affiliates required by increasing Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the number contrary, during the period after the election of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment directors designated by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn Purchaser pursuant to this Section 1.3 but prior to the Offer as satisfies Effective Time, the Minimum Condition, subject to compliance with the Company’s certificate Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Directors of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent delegate to constitute the number of members, rounded up to the next whole number, on (A) each a committee of the Company Board and (B) each board of directors of each Subsidiary Directors of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority comprised solely of the outstanding Company Shares Independent Directors (the "Committee") the sole responsibility for (i) the amendment or termination of this Agreement (in either case in accordance with this Agreement) on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all behalf of the members Company, but excluding a termination pursuant to Section 7.1(c)(ii) hereof, which is not delegated, (ii) the waiver of any of the Company Board and such committees and boards as Company's rights or remedies hereunder, (iii) the extension of the date hereof who are not employees time for performance of Parent's or Purchaser's obligations hereunder, or (iv) the assertion or enforcement of the Company remain members Company's rights under this Agreement to object to (a) a failure to consummate the Merger for a failure of the Company Board and such committees and boards until the Effective Timecondition set forth in Section 6.2 to be satisfied or (b) a termination of this Agreement under Section 7.1(d)(iii).

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment by Parent or Merger Sub for for, any Shares pursuant to the Offer, Parent or Merger Sub shall be entitled to designate such number of members of the Board of Directors of the Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionwill give Merger Sub, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation equal to designate the at least that number of directors, rounded up to the next whole number, on the Company Board that equals which is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the (A) such number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares so accepted for payment and actually paid by Merger Sub for pursuant to the Offer) Offer plus the number of Shares otherwise owned by Parent, Merger Sub or any other subsidiary of Parent bears to (B) the total number of Company Shares outstanding, andand the Company shall, upon Merger Sub’s request at any time following such time, cause such designees to be so elected; provided, however, that in the purchase of and payment for Company Shares pursuant event that such designees are appointed or elected to the OfferBoard of Directors of the Company, until the Effective Time such Board of Directors shall have at least three directors who are directors on the date of this Agreement and who will be independent for purposes of Rule 10A-3 under the Exchange Act (the “Independent Directors”); and provided further that, in such event, if the number of Independent Directors shall be reduced below three for any reason whatsoever, any remaining Independent Directors (or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three persons to fill such vacancies who will be independent for purposes of Rule 10A-3 under the Exchange Act, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable Law, the Company shall cause take all action requested by Parent necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Parent or Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to such designees). In connection with the foregoing, the Company shall promptly, at the option of Parent’s , use reasonable efforts to either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable such designees to be elected or appointed to the Board of Directors of the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsas provided above. STRICTLY CONFIDENTIAL (b) Following the Acceptance Date election or appointment of Parent’s or Merger Sub’s designees pursuant Section 6.14(a) and prior to the payment Effective Time, any amendment or termination of this Agreement approved by the Company, extension for the performance or waiver of the obligations of Parent or Merger Sub for such number or waiver of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate rights hereunder shall require the concurrence of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeIndependent Directors.

Directors. (a) Following Subject to applicable Law and Nasdaq rules applicable to the Company, promptly upon the Acceptance Date and the payment by Time, Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to at least that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of shares of Company Shares beneficially Common Stock owned by Parent and/or Merger Sub or any other Subsidiary of Parent (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to in the Offer) bears to (B) the total number of shares of Company Shares Common Stock that are issued and outstanding, andand the Company shall, upon at such time, promptly take all necessary action to cause Merger Sub’s request at any time following designees to be so elected; provided, however, that in the purchase of and payment for Company Shares pursuant event that Merger Sub’s designees are appointed or elected to the OfferCompany Board, until the Effective Time the Company Board shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the “Independent Directors”); and provided, further, that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall be entitled to designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall use reasonable best efforts to designate two persons to fill such vacancies who are directors of the Company on the date of this Agreement and who are not officers or affiliates of the Company, any of its Subsidiaries, Parent, any of its Subsidiaries or Merger Sub, provided, however, that, if any vacancies remain, the other directors shall designate persons to fill such vacancies who are not officers, stockholders or affiliates of the Company, any of its Subsidiaries, Parent, any of its Subsidiaries or Merger Sub, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parentpromptly, at the option of Merger Sub, take all necessary action to either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company BoardBoard as provided above. At such time, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment persons designated by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to shall, as nearly as practicable, constitute at least the Offer same percentage as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals persons designated by Parent Merger Sub to constitute the number of members, rounded up to the next whole number, on (A1) each committee of the Company Board and Board, (B2) each board of directors of each Subsidiary of the Company Company, and (and 3) each committee thereof) that represents of each such board, in each case only to the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeextent permitted by applicable Law.

Directors. (a) Following Subject to applicable Law and applicable marketplace rules of The NASDAQ Stock Market LLC applicable to the Acceptance Date Company at such time, promptly upon the acceptance for payment of and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to and in accordance with the Offer as satisfies satisfying the Minimum ConditionTender Condition (the "Acceptance Time"), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules as long as Parent directly or indirectly beneficially owns not less than a majority of the NASDAQ)issued and outstanding Shares, Parent Merger Sub shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of Company Shares beneficially owned by Parent and/or Parent, Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) or any other Subsidiary of Parent bears to (B) the total number of Shares that are issued and outstanding. The Company Shares outstandingshall also, upon the request of Parent, cause such persons designated by Merger Sub to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of (I) each committee of the Company Board, subject to compliance with applicable securities Laws and the marketplace rules of The NASDAQ Stock Market LLC (other than any committee comprised solely of Continuing Directors established to take action under this Agreement, which shall be permitted to meet without the presence of other directors solely for purposes of considering and, upon if necessary, taking any action referred to in Section 1.3(c)), and (II) each board of directors (or similar body) of each Company Subsidiary and each committee of such board of directors (or similar body); provided, however, that in the event that Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant 's designees are appointed or elected to the OfferCompany Board, until the Effective Time, the Company Board shall have at least two (2) directors who are directors on the date of this Agreement and who qualify as independent directors for purposes of the continued listing requirements of The NASDAQ Stock Market LLC and the SEC rules and regulations (such directors, the "Continuing Directors"); and provided further that, in such event, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the Company Board shall cause the Person(s) designated by the remaining Continuing Director(s) to fill such vacancy(ies), and such person(s) shall be deemed to be a Continuing Director(s) for purposes of this Agreement or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate two (2) persons to fill such vacancies who are not officers, employees, stockholders or Affiliates of the Company, any Company Subsidiary, Parent, Merger Sub or any other Subsidiary of Parent, and such persons shall be deemed to be Continuing Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parent’s either increase the size of the Company Board or obtain the resignation of such number of its current directors, or both, as is necessary to enable Merger Sub's designees to be elected or appointed to the Company Board, including by increasing the number of directorsBoard as provided above, and seeking the Company shall take all actions available to the Company to cause Merger Sub's designees to be so elected or appointed (the date on which the majority of the Company's directors are designees of Merger Sub that have been effectively appointed to the Company Board in accordance herewith, the "Board Appointment Date"). The parties hereto acknowledge and accepting resignations of incumbent directors. Following agree that, from and after the Acceptance Date and the payment by for so long as Parent, Merger Sub for such number and any Subsidiary of Parent or Merger Sub (excluding the Company and any Company Subsidiary) own at least a majority of the issued and outstanding shares of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestCommon Stock, the Company shall also cause individuals designated by Parent to constitute be a "controlled company" (within the number of members, rounded up to the next whole number, on (A) each committee meaning of the Company Board and (B) each board of directors of each Subsidiary listing requirements of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNasdaq Global Select Market).

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment by Merger Sub for for, any shares of Company Common Stock pursuant to the Offer, Merger Sub shall be entitled to designate such number of directors on the Company Shares validly tendered and not properly withdrawn pursuant to the Offer Board as satisfies the Minimum Conditionwill give Merger Sub, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation on the Company Board equal to designate the at least that number of directors, rounded up to the next whole number, on the Company Board that equals which is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) multiplied by (b) the percentage that (i) such number of shares of Company Common Stock so accepted for payment and paid for by Merger Sub plus the number of shares of Company Common Stock otherwise owned by Parent, Holdings or Merger Sub or any other subsidiary of Parent bears to (ii) the percentage number of such shares outstanding, and the Company shall, at such time, cause Merger Sub’s designees to be so elected; provided, however, that in the event that Merger Sub’s designees are appointed or elected to the Company Board, until the Effective Time the Company Board shall have at least three directors who are directors on the date of this Agreement and who will be independent for purposes of Rule 10A-3 under the Exchange Act (the “Independent Directors”); and provided further that, in such event, if the number of Company Shares beneficially owned by Parent and/or Merger Sub Independent Directors shall be reduced below three for any reason whatsoever, any remaining Independent Directors (including Company Shares accepted or Independent Director, if there shall be only one remaining) shall be entitled to designate Persons to fill such vacancies who shall be deemed to be Independent Directors for payment purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three Persons to fill such vacancies who will be independent for purposes of Rule 10A-3 under the Exchange Act, and actually paid by Merger Sub pursuant such Persons shall be deemed to the Offer) bears be Independent Directors for purposes of this Agreement. Subject to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offerapplicable Law, the Company shall cause Parenttake all action necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Merger Sub’s designees). In connection with the foregoing, the Company shall promptly, at the option of Merger Sub, either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsBoard as provided above. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.45

Directors. (aA) Following Promptly upon the Acceptance Date and purchase by Acquisition of all of the payment by Merger Sub for such number of Company Inducement Shares validly tendered and not properly withdrawn pursuant to the Offer Inducement Agreement or Audits Shares pursuant to the Offer, and from time to time thereafter as satisfies the Minimum ConditionAudits Shares are acquired by Acquisition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent Acquisition shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board of Directors as will give Acquisition, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors equal to at least that number of directors which equals the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of Audits) and multiplied by the percentage obtained by dividing (iii) the percentage that the aggregate number of Company Audits Shares beneficially owned by Parent and/or Merger Sub Acquisition or any affiliate of Acquisition (including Company for purposes of this Section 1.3 such Audits Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, but excluding Audits Shares held by Audits) by (ii) the Company shall number of Audits Shares outstanding (excluding Audits Shares held by Audits). At such times, if requested by Acquisition, Audits will also cause Parent’s each committee of the Board of Directors to include persons designated by Acquisition constituting the same percentage of each such committee as Acquisition's designees are of the Board of Directors. Audits shall, upon request by Acquisition, promptly increase the size of the Board of Directors or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Acquisition designees to be elected or appointed to the Company BoardBoard of Directors in accordance with the terms of this Section 1.3 and shall cause Acquisition's designees to be so elected; provided, including by increasing however, that, in the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant event that Acquisition's designees are appointed or elected to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoingDirectors, until Parent and/or Merger Sub acquires the Effective Time (as defined in Section 2.3 hereof) the Board of Directors shall have at least one director who is a majority of the outstanding Company Shares director on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof and who are not employees is neither an officer of Audits nor a designee, stockholder, affiliate or associate (within the meaning of the Company remain members Federal securities laws) of Acquisition (one of more of such directors, the "Independent Directors"); provided, further, that if no Independent Directors remain, the other directors shall designate one person to fill one of the Company Board vacancies who shall not be either an officer of Audits or a designee, shareholder, affiliate or associate of Acquisition, and such committees and boards until the Effective Timeperson shall be deemed to be an Independent Director for purposes of this Agreement.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements Within three (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i3) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time business days following the purchase date of and payment for Company Shares pursuant to the Offerthis Agreement, the Company shall cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number Board of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary Directors of the Company (the “Board”) shall in compliance with applicable law and the Company's governing documents (i) increase the size of the Board from six (6) to eight (8) directors, (ii) appoint each committee thereofof Rxxxxxx X. Xxxxxxxx and Rxxxxxx Xxxxx (together with any replacements therefor, the “Director Designees”) as a director of the Company, and (iii) appoint Cxxxxx X. XxXxxxxxxx as a director of the Company. At the Company’s 2015 annual shareholders’ meeting (the “2015 Annual Meeting”), which the Company covenants and agrees to hold, unless otherwise agreed to by Clinton, no later than July 31, 2015, the Board will nominate the Director Designees and Mx. XxXxxxxxxx for election to the Board, will recommend in the Company’s definitive proxy statement in connection with the 2015 Annual Meeting that represents the Company’s shareholders vote to elect the Director Designees and Mx. XxXxxxxxxx at the 2015 Annual Meeting and will solicit the vote of the Company's shareholders for the Director Designees and Mx. XxXxxxxxxx in the same percentage manner as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members other nominees of the Company standing for election as directors. If during the Standstill Period Mx. XxXxxxxxxx is unwilling or unable for any reason to serve as a director, the Clinton Group and the Board and such committees and boards shall mutually agree on a replacement director who qualifies as an “independent director” for purposes of Section 303A of the date hereof who are not employees Listed Company Manual of the Company remain members New York Stock Exchange and the Board shall appoint such director as promptly as practicable. If during the Standstill Period either of the Director Designees is unwilling or unable for any reason to serve as a director, the Clinton Group shall have the right to submit the name of a replacement person (the “Replacement”) who qualifies as an “independent director” for purposes of Section 303A of the Listed Company Board Manual of the New York Stock Exchange, has relevant financial and such committees business experience to serve on the Board, and boards is otherwise reasonably acceptable to the Nominating Committee of the Board. If the proposed Replacement is not accepted by the Nominating Committee, the Clinton Group shall have the right to submit another proposed Replacement for consideration by the Nominating Committee. The Clinton Group shall have the right to continue submitting the name of a proposed Replacement for consideration by the Nominating Committee until the Effective TimeNominating Committee approves that such Replacement may serve as a nominee for election as director or serve as a director for the remainder of the term of such Director Designee, whereupon the Board shall appoint such director as promptly as practicable. All references in this Agreement to one or more Director Designees shall include any Replacement of any such Director Designees.

Directors. (a) Following Subject to applicable Law and applicable marketplace rules of The NASDAQ Stock Market LLC applicable to the Acceptance Date Company at such time, promptly following the acceptance for payment of and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to and in accordance with the Offer as satisfies satisfying the Minimum ConditionTender Condition (the “Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules as long as Parent directly or indirectly beneficially owns not less than a majority of the NASDAQ)issued and outstanding Shares, Parent Merger Sub shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of Company Shares beneficially owned by Parent and/or Parent, Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) or any other Subsidiary of Parent bears to (B) the total number of Shares that are issued and outstanding. The Company Shares outstandingshall also, upon the request of Parent, cause such persons designated by Merger Sub to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of each committee of the Company Board, subject to compliance with applicable securities Laws and the marketplace rules of The NASDAQ Stock Market LLC (other than any committee comprised solely of Continuing Directors established to take action under this Agreement, which shall be permitted to meet without the presence of other directors solely for purposes of considering and, upon if necessary, taking action referred to in Section 1.3(c) below); provided, however, that in the event that Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant designees are appointed or elected to the OfferCompany Board, until the Effective Time, the Company Board shall have at least two (2) directors who are directors on the date of this Agreement and who qualify as independent directors for purposes of the continued listing requirements of The NASDAQ Stock Market LLC and the SEC rules and regulations (such directors, the “Continuing Directors”); and provided further that, in such event, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the Company Board shall cause the Person(s) designated by the remaining Continuing Director(s) to fill such vacancy(ies), and such person(s) shall be deemed to be a Continuing Director(s) for purposes of this Agreement or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate two (2) persons to fill such vacancies who are not officers, employees, stockholders or Affiliates of the Company, Parent, Merger Sub or any other Subsidiary of Parent, and such persons shall be deemed to be Continuing Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parenteither increase the size of the Company Board or obtain the resignation of such number of its current directors, or both, as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directorsBoard as provided above, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant shall take all actions available to the Offer as satisfies Company to cause Merger Sub’s designees to be so elected or appointed (the Minimum Condition, subject to compliance with date on which the majority of the Company’s certificate directors are designees of incorporation Merger Sub that have been effectively appointed to the Company Board in accordance herewith, the “Board Appointment Date”). The parties hereto acknowledge and bylaws agree that, from and applicable Legal Requirements after the Acceptance Time and for so long as Parent, Merger Sub and any Subsidiary of Parent or Merger Sub (including excluding the applicable Marketplace Rules Company) own at least a majority of the NASDAQ), upon Merger Sub’s requestissued and outstanding shares of the Company Common Stock, the Company shall also cause individuals designated by Parent to constitute be a “controlled company” (within the number of members, rounded up to the next whole number, on (A) each committee meaning of the Company Board and (B) each board of directors of each Subsidiary listing requirements of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNasdaq Global Market).

Directors. (a) Following Effective upon the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Offer, and from time to time thereafter as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Shares are acquired by Acquisition, Parent or their respective affiliates, Acquisition shall be entitled to designate upon written notice to the Company for appointment or election such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as will give Parent or Acquisition, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to that number of directors which equals the product of (i) the total number of directors on the Board of Directors of the Company Board (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub Parent, Acquisition or any of their respective affiliates (including Company for purposes of this Section 1.3 such Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer, but excluding Shares held by the Company or any of its Subsidiaries) bears to the total number of Company Shares then issued and outstanding. At such times, andif requested by Parent or Acquisition, upon Merger Sub’s request at any time following and subject to Applicable Law and the purchase rules of and payment for Company Shares pursuant to the OfferNasdaq National Market, the Company shall will use its best efforts to cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Board of Directors of the Company and the Board and (B) each board of directors Directors of each Subsidiary of the Company (and each committee thereof) that represents to include persons designated by Parent or Acquisition constituting the same percentage of each such committee and the Board of Directors of each subsidiary of the Company as Parent's or Acquisition's designees are of the Board of Directors of the Company. The Company shall, upon request by Parent or Acquisition, promptly increase the size of the Board of Directors of the Company and/or exercise its best efforts to secure the resignations of such individuals represent number of Directors as is necessary to enable Parent's or Acquisition's designees to be elected to the Board of Directors of the Company in accordance with the terms of this Section 1.3 and subject to Applicable Law, shall cause Acquisition's designees to be so elected; provided, however, that if Parent's or Acquisition's designees are appointed or elected to the Board of Directors of the Company, until the Effective Time, the Board of Directors of the Company shall have at least two (2) directors who are directors on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority Amendment Execution Date and who are neither officers of the outstanding Company Shares on a fully-diluted basisnor designees, affiliates or associates (within the meaning of the federal securities laws) of Parent or the Acquisition prior to the Amendment Execution Date (one or more of such directors, the "INDEPENDENT DIRECTORS"); provided, further, that if less than two (2) Independent Directors remain, the remaining Independent Directors (if any) or if no Independent Directors remain, the other directors shall designate persons to fill the vacancies who shall not be either officers of the Company or designees, shareholders, affiliates or associates of Parent, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to Applicable Law, the Company shall use its commercially reasonable efforts promptly take all action necessary pursuant to ensure that all Section 14(f) of the members Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders of the Company Board and such committees and boards as promptly after the commencement of the date hereof who are Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent or Acquisition has not employees theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent and Acquisition will supply the Company and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, during the period after the election or appointment of directors designated by Parent or Acquisition pursuant to this Section 1.3 but prior to the Effective Time, the Board of Directors of the Company remain members shall, to the fullest extent permitted by Applicable Law, delegate to a committee of the Board of Directors of the Company Board and such committees and boards until comprised solely of the Effective TimeIndependent Directors (the "COMMITTEE"), the sole responsibility for (i) the amendment or termination of this Agreement (in either case in accordance with this Agreement) on behalf of the Company, (ii) the waiver of any of the Company's rights or remedies hereunder, (iii) the extension of the time for performance of Parent's or Acquisition's obligations hereunder, or (iv) the assertion or enforcement of the Company's rights under this Agreement.

Directors. (a) Following Promptly upon the Acceptance Date satisfaction of the Minimum --------- Tender Condition and the acceptance for payment of, and payment by Merger Sub for such number of for, any Company Common Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionOffer, Merger Sub shall, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act and Rule 14f-1 promulgated thereunder, Parent shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up down to the next whole number, on the Company Board that equals which is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (iib) a fraction, ---------- -- the percentage that numerator of which is the number of Company Common Shares beneficially owned by Parent and/or Merger Sub (including Company Shares so accepted for payment and actually paid for by Merger Sub pursuant to and the Offer) bears to denominator of which is the total number of Company Common Shares outstanding, and, upon Merger Sub’s request outstanding at any the time following the purchase of and acceptance for payment for of Company Common Shares pursuant to the Offer, and the Company shall shall, promptly upon such designation by Merger Sub, cause Parent’s Merger Sub's designees to be elected or appointed to the Company Board; provided, including by increasing however, that during the period -------- ------- commencing with the election or appointment of Merger Sub's designees to the Company Board until the Effective Time or earlier termination of this Agreement, the Company Board shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company or representatives of any affiliates of the Company (the "Independent Directors"); --------------------- and provided further, however, that if during such period the number of directors-------- ------- ------- Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill any such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who are not officers, affiliates, associates or shareholders of Parent or Merger Sub, and seeking and accepting resignations such persons shall be deemed to be Independent Directors for purposes of incumbent directorsthis Agreement. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant Subject to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestlaw, the Company shall also cause individuals designated take all action requested by Parent to constitute for the number purpose of memberseffecting any such election or appointment of Merger Sub's designees. In connection with the foregoing, rounded up to the next whole numberCompany shall promptly, on (A) each committee at the option of Merger Sub, either increase the size of the Company Board or accept the resignations (which resignations the Company will obtain on or before the date of this Agreement, and (B) each board of directors of each Subsidiary which resignations shall only be effective as of the time of, and shall be conditional upon, acceptance for payment of any Company (and each committee thereofCommon Shares pursuant to the Offer) that represents the same percentage of such number of its current directors as such individuals represent on is necessary to enable Merger Sub's designees to be elected or appointed to the Company BoardBoard as provided above. Notwithstanding Prior to the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisEffective Time, the Company shall use its commercially reasonable efforts to ensure that all cause each member of the members Company Board, other than Merger Sub's designees, to execute and deliver a letter effectuating his or her resignation as a director of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until effective immediately prior to the Effective Time.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number of Company a majority of the outstanding Shares validly tendered and not properly withdrawn pursuant to the Offer Offer, and from time to time thereafter as satisfies the Minimum ConditionShares are acquired by Merger Sub, Merger Sub shall be entitled, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled to designate the such number of directors, rounded up to the next greatest whole number, on the Company Board as will give Merger Sub representation on the Board equal to that number of directors which equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub or any affiliate of Merger Sub (including Company for purposes of this Section 1.03 such Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, but excluding Shares held by the Company shall cause Parent’s designees or any of its affiliates) bears to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsShares outstanding. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttimes, the Company shall will also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board and of Directors, (Bii) each if requested by Merger Sub, the board of directors of each Subsidiary of the Company Company's subsidiaries and (and iii) if requested by Merger Sub, each committee thereof) that represents of such board to include persons designated by Merger Sub constituting the same percentage of each such committee or board as such individuals represent on Merger Sub's designees are of the Company Board. Notwithstanding The Company shall, upon request by Merger Sub, promptly increase the foregoing, until Parent and/or size of the Board or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Merger Sub acquires a majority of designees to be elected to the outstanding Company Shares on a fully-diluted basisBoard and shall cause Merger Sub's designees to be so elected. (b) Subject to applicable law, the Company shall use its commercially reasonable efforts promptly take all action necessary pursuant to ensure that all Section 14(f) of the members Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.03 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Company Board and Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Merger Sub has not theretofore designated directors) such committees and boards as of the date hereof who are not employees of information with respect to the Company remain members of and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.03. Parent and Merger Sub will supply the Company Board and such committees be solely responsible for any information with respect to itself and boards until the Effective Timeits nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. ARTICLE II THE MERGER SECTION 2.01.

Directors. (a) Following Promptly after the Acceptance Date first time at which the Purchaser accepts for payment and the payment by Merger Sub pays for such number any shares of Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Acceptance Time”), Parent and from time to time thereafter as shares of Company Common Stock are accepted for payment and paid for by the Purchaser, the Purchaser shall be entitled to designate such number of members of the Company Board (the “Purchaser Designees”), rounded up to the nearest whole number, as will give the Purchaser representation on the Company Board equal to the product of the total number of members of the Company Board (after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the number of directorsshares of Company Common Stock beneficially owned by the Parent or the Purchaser at such time (including shares of Company Common Stock so accepted for payment) bears to the total number of shares of Company Common Stock then outstanding; provided that in no event shall the Purchaser Designees constitute less than a majority of the Company Board. In furtherance thereof, the Company shall, upon the request of the Purchaser, use its reasonable best efforts promptly (and in any event within one business day) either to increase the size of the Company Board or to secure the resignations of such number of the Company’s incumbent directors (and such incumbent directors have agreed to resign if required in order for the Company to comply with this Section 1.3(a)), or both, as is necessary to enable the Purchaser Designees to be so elected or appointed to the Company Board and the Company shall take all actions necessary to cause the Purchaser Designees to be so elected or appointed. At such time, the Company shall, if requested by the Purchaser, also take all action necessary to cause persons designated by the Purchaser to constitute at least the same percentage (rounded up to the next whole number, ) as is on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents of each such board. The provisions of this Section 1.3 are in addition to and shall not limit any rights which the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisPurchaser, the Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company shall use its commercially reasonable efforts Common Stock as a matter of applicable law with respect to ensure that all the election of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Promptly following the Acceptance Date purchase of and payment for the payment by Merger Sub for such number of Shares of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as Common Stock that satisfies the Minimum Condition, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter, Parent Purchaser shall be entitled to designate for election as directors of the Company such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on of the Company constituting the whole Board of Directors (giving effect to any increase in the election number of any additional directors pursuant in order to comply with this SectionSection 1.03) and (ii) the percentage that the number voting power of Shares of Company Shares Common Stock beneficially owned by Parent and/or Merger Sub and Purchaser (including Shares of Company Shares accepted Common Stock paid for payment and actually paid by Merger Sub pursuant to the Offer) ), upon such payment, bears to the total number voting power of Shares of Company Shares Common Stock then outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action within its power to cause Parent’s Purchaser's designees to be elected or appointed to the Company BoardBoard of Directors, including by including, without limitation, increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall also will also, upon the request of Parent or Purchaser, use its reasonable best efforts to cause individuals individual directors designated by Parent Purchaser to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board of Directors other than any such committee of the Board of Directors established to take action under this Agreement and (Bii) each the board of directors of each Significant Subsidiary (as herein defined) of the Company (Company, and each committee thereof) , that represents the same percentage as such individuals Purchaser's designees represent on the Company BoardBoard of Directors. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority in the event that Purchaser's designees are appointed or elected to the Board of the outstanding Company Shares on a fully-diluted basisDirectors, the Company Board of Directors shall use its commercially reasonable efforts at all times until the Effective Time (as defined herein) have at least two directors who are directors on the date of this Agreement or otherwise not affiliates of Parent (the "Continuing Directors"); provided that in the event that the number of Continuing Directors shall be reduced below two for any reason whatsoever, the Board of Directors shall cause the person designated by the remaining Continuing Director to ensure that fill such vacancy and such person shall be deemed to be a Continuing Director for all purposes of this Agreement or, if no Continuing Directors then remain, the members other directors of the Company Board and then in office shall designate two persons to fill such committees and boards as of the date hereof vacancies who are not officers, directors, employees or affiliates of the Company remain members or Parent or any of their respective Subsidiaries and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement. The Company's obligations to appoint Purchaser's designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company Board shall promptly take all actions and shall include in the Schedule 14D-9 (or an amendment thereto or an information statement pursuant to Rule 14f-1 if Purchaser has not theretofore designated directors) such committees information with respect to the Company and boards until its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent and Purchaser shall supply to the Effective TimeCompany, and be solely responsible for, any information with respect to themselves and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to Effective upon the Offer as satisfies the Minimum ConditionClosing, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to designate designate, from time to time, such number of members of the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 thereunder, representation equal to at least that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or appointed pursuant to this Sectionsentence) and multiplied by (iib) the percentage that (i) the number of shares of Company Shares Common Stock beneficially owned by Parent and/or Merger Sub and its Subsidiaries (including shares of Company Shares Common Stock accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to (ii) the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase shares of and payment for Company Shares pursuant to the Offer, the Company shall cause Common Stock then outstanding; provided, however, that in the event that Parent’s designees are appointed or elected to the Board of Directors of the Company, until the Effective Time Parent shall use its reasonable best efforts to cause the Board of Directors of the Company to have at least three Continuing Directors. The Company shall promptly take all action requested by Parent necessary or desirable to effect any such election or appointment, including (A) increasing the size of the Board of Directors of the Company (including by amending the Company Bylaws if necessary to increase the size of the Board of Directors of the Company), (B) filling vacancies or newly created directorships on the Board of Directors of the Company and (C) obtaining the resignation of such number of its current directors as is, in each case, necessary to enable such designees to be so elected or appointed to the Board of Directors of the Company Boardin compliance with applicable Law (including, to the extent applicable prior to the Effective Time, Rule 10A-3 under the Exchange Act and applicable NASDAQ Rules). The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 6.9(a), including mailing to its stockholders the Information Statement containing the information required by increasing Section 14(f) of the number of directorsExchange Act and Rule 14f-1 thereunder, and seeking the Company agrees to make such mailing concurrently with the mailing of the Schedule 14D-9. Parent and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant shall provide to the Company on a timely basis all information required to be included in the Information Statement with respect to such designees and with respect to Parent’s officers, directors and Affiliates. After the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestClosing, the Company shall also also, upon Parent’s request, cause individuals the directors elected or designated by Parent to the Board of Directors of the Company to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Board of Directors of the Company of (Ai) each committee of the Company Board and of Directors of the Company, except for any committee established to take action with respect to the subject matter of this Agreement, (Bii) each the board of directors of each Subsidiary of the Company and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage as such individuals represent on extent permitted by applicable Law and the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNASDAQ Marketplace Rules.

Directors. (a) Following the Acceptance Date Promptly upon acceptance for payment of, and the payment by Merger Sub for such number for, any shares of the Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies the Minimum ConditionOffer, Parent or Merger Sub shall be entitled, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled to designate designate, from time to time, such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to at least such number of directors, rounded up to the next nearest whole number, on the Company Board that equals is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) multiplied by (b) the percentage that (i) such number of shares of the Company Common Stock so accepted for payment and paid for by Merger Sub plus the number of shares of the Company Common Stock otherwise owned by Parent or Merger Sub or any subsidiary of Parent bears to (ii) the percentage number of such shares outstanding, and the Company shall, at such time, cause Merger Sub’s designees to be so elected or appointed; provided, however, that in the event that Merger Sub’s designees are appointed or elected to the Company Board, until the Effective Time the Company Board shall have at least three (3) directors who are directors on the date of this Agreement and who will be independent for purposes of Rule 10A-3 under the Exchange Act (the “Independent Directors”); provided, further, that, in such event, if the number of Company Shares beneficially owned by Parent and/or Merger Sub Independent Directors shall be reduced below three (including Company Shares accepted 3) for payment any reason whatsoever, any remaining Independent Directors (or Independent Director, if there shall be only one (1) remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate three (3) persons to fill such vacancies who will be independent for purposes of Rule 10A-3 under the Exchange Act, and actually paid by Merger Sub pursuant such persons shall be deemed to be Independent Directors for purposes of this Agreement. The Company’s obligations under this Section 7.17 shall be subject to Section 14(f) of the Offer) bears Exchange Act and Rule 14f-1 promulgated thereunder. Subject to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offerapplicable Law, the Company shall cause Parenttake all action requested by Parent necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Merger Sub’s designees). In connection with the foregoing, the Company shall promptly, at the option of Merger Sub, either increase the size of the Company Board or use reasonable efforts to obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsBoard as provided above. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall also shall, if requested by Parent, take all action necessary to cause individuals designated by Parent to constitute the number of members, rounded up to the next nearest whole number, on (A) each committee of the Company Board and (B) each board of directors of each Company Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding Board in each case to the foregoing, until Parent and/or Merger Sub acquires a majority extent permitted by applicable Law or the rules of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeNasdaq.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of shares of Company Common Stock and Company Preferred Stock by Newco pursuant to the payment by Merger Sub for Tender Offer, in the event that Parent elects to cause Newco to commence the Tender Offer, Newco shall be entitled to designate such number of directors on the Board of Directors of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionwill give Newco, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation on Company's Board of Directors equal to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Company's Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (ii) the percentage that the number of shares of Company Shares beneficially owned Common Stock and Company Preferred Stock purchased by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Newco in the Offer) Tender Offer bears to the total number of shares of Company Shares outstandingCommon Stock and Company Preferred Stock outstanding at such time, andand Company shall, upon Merger Sub’s request at any time following such time, cause Newco's designees to be so elected by its existing Board of Directors; provided, that in the purchase of and payment for Company Shares pursuant event that Newco's designees are elected to the OfferBoard of Directors of Company, until the Effective Time such Board of Directors shall have at least two directors who are directors of Company on the date of this Agreement and who are not officers or employees of Company (the "INDEPENDENT DIRECTORS") and; provided further that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors of Company on the date hereof shall designate two persons to fill such vacancies who shall not be officers or employees of Company, or officers or affiliates of Newco, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, Company shall cause Parent’s take all action requested by Newco necessary to effect any such election, including mailing to its shareholders the information statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. In connection with the foregoing, Company will promptly, at the option of Newco, either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Newco's designees to be elected or appointed to the Company Board, including by increasing the number of directorsto, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of, Company's Board of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards Directors as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as of a number of Cxxxx Shares that satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent Acquiror shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board of Directors of Cxxxx that equals the product of (i) the total number of directors on the Company Board of Directors of Cxxxx (giving effect to the election of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the number of Company Cxxxx Shares beneficially owned by Parent Acquiror and/or Merger Sub Acquisition Subsidiary (including Company Cxxxx Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Cxxxx Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant Cxxxx shall take all action necessary to the Offer, the Company shall cause ParentAcquiror’s designees to be elected or appointed to the Company BoardBoard of Directors of Cxxxx, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant time, Cxxxx will also use commercially reasonable efforts to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent Acquiror to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board of Directors of Cxxxx and (Bii) each board of directors of each Cxxxx Subsidiary of the Company identified by Acquiror (and each committee thereof) that represents the same percentage as such individuals represent on the Company BoardBoard of Directors of Cxxxx, in each case only to the extent permitted by applicable Law including the rules of The Nasdaq Global Market or any other exchange on which the Cxxxx Shares are listed. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority provisions of the outstanding Company Shares on a fully-diluted basisthis Section 1.3, the Company parties hereto shall use its commercially reasonable efforts to ensure that all at least two of the members of the Company Board and such committees and boards as of Directors of Cxxxx, who are not officers, employees or affiliates of Cxxxx, Acquiror or Acquisition Subsidiary or any of their respective Subsidiaries or affiliates, shall, at all times prior to the Effective Time, be individuals who were independent directors of Cxxxx (for purposes of the continued listing requirements of The Nasdaq Global Market) on the date hereof (the “Continuing Directors”); provided that if there shall be in office fewer than two Continuing Directors for any reason, the Board of Directors of Cxxxx shall cause a person designated by the remaining Continuing Director to fill such vacancy who are shall be deemed to be a Continuing Director for all purposes of this Agreement, or if no Continuing Directors then remain, the other directors of Cxxxx then in office shall designate two persons to fill such vacancies who will not be directors, officers, employees or affiliates of Cxxxx, Acquiror or Acquisition Subsidiary or any of their respective Subsidiaries or affiliates and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement. The Board of Directors of Cxxxx shall not delegate any matter covered by this Section 1.3 to any committee of the Company remain members Board of Directors of Cxxxx, unless such committee consists only of the Company Board and such committees and boards until the Effective TimeContinuing Directors.

Directors. (a) Following Effective as of the Acceptance Date Offer Closing and from time to time thereafter (as long as Parent and its affiliates beneficially own a majority of the payment by Merger outstanding shares of Company Common Stock), Acquisition Sub for shall be entitled to designate such number of directors on the Company Shares validly tendered and not properly withdrawn pursuant to the Offer Board as satisfies the Minimum Conditionwill give Acquisition Sub, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation on the Company Board equal to designate the at least that number of directors, rounded up to the next whole number, on the Company Board that equals which is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the (A) such number of shares of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares Common Stock so accepted for payment and actually paid for by Merger Acquisition Sub pursuant to plus the Offer) number of shares of Company Common Stock owned by Parent and Acquisition Sub or any direct or indirect wholly-owned Subsidiary of Parent bears to (B) the total number of such shares of Company Shares Common Stock outstanding, andand the Company shall, upon Merger at such time, cause Acquisition Sub’s request at any time following designees to be so elected; provided, however, that in the purchase of and payment for Company Shares pursuant event that Acquisition Sub’s designees are appointed or elected to the OfferCompany Board, until the Effective Time the Company Board shall have at least four directors who are members of the Company Board on the date of this Agreement and independent directors for purposes of the continuing listing requirements of Nasdaq, but who are not affiliates or employees of Parent or any of its Subsidiaries (the “Independent Directors”); provided further that, in such event, if the number of Independent Directors shall be reduced below four for any reason whatsoever, any remaining Independent Directors (or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate four persons to fill such vacancies who are not, at the time of appointment, officers, stockholders or affiliates of the Company, Parent or any of its Subsidiaries and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable Law, the Company shall cause Parenttake all action requested by Parent necessary to effect any such election, including mailing to holders of Company Common Stock the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company shall make such mailing with the mailing of the Schedule 14D-9 (provided that Parent and Acquisition Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Acquisition Sub’s designees to the Company Board in accordance with Section 2.2(a)). Parent and Acquisition Sub will be solely responsible for any information with respect to them and their nominees, officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. In connection with the foregoing, the Company shall promptly, at the option of Acquisition Sub, either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable Acquisition Sub’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Board as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant The Board has duly adopted a resolution providing that immediately prior to the Offer as satisfies 2007 Annual Meeting, the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules size of the NASDAQ), Parent Board shall be entitled decreased to designate the number 9 members, and such resolution is in full force and effect and shall not be rescinded or modified. A true and correct copy of directors, rounded up such resolution has been provided to the next whole number, on Icahn Parties. From and after the Company Board that equals date hereof until the product completion of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer2007 Annual Meeting, the Company shall cause Parent’s designees take no other action to be elected (i) otherwise change the size (whether by increase or appointed to decrease) of the Company Board, including by increasing other than as contemplated herein, (ii) amend, in any respect, the number certificate of directorsincorporation or bylaws of the Company, and seeking and accepting resignations other than as contemplated herein, (iii) issue any of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn its securities to any person, other than pursuant to the Offer Company's employee benefits and/or incentive plans or agreements existing as satisfies of the Minimum Conditiondate hereof, subject in each case, in the ordinary course of business and consistent with past practice, (iv) make any change to compliance its capital structure, (v) amend the Rights Plan in any respect, other than as contemplated herein, or (vi) enter into any agreement to do any of the foregoing, in each case, without the prior written consent of the Icahn Parties, which consent shall not be unreasonably withheld, conditioned or delayed. The Board has also duly adopted a resolution nominating each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees, for election to the Board at the 2007 Annual Meeting and directing the Company and its officers and agents to solicit votes for the election of each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees in the same manner, and such resolution has not been rescinded or modified. A true and correct copy of such resolution has been provided to the Icahn Parties. The Board has duly adopted a resolution in which it recommends to the Company's shareholders that they vote for each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees as Directors of the Company at the 2007 Annual Meeting and directing that the Company include this recommendation in its proxy materials (as amended or supplemented) for the 2007 Annual Meeting, and such resolution has not been rescinded or modified. A true and correct copy of such resolution has been provided to the Icahn Parties. The Company shall cause the proxy used for the 2007 Annual Meeting to solicit authority to vote for each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees at the 2007 Annual Meeting. The Company shall use commercially reasonable efforts to solicit proxies in favor of the election of each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees at the 2007 Annual Meeting. Such nomination, recommendation and solicitation shall be effected in a reasonable manner and shall be undertaken for each such nominee in the same manner. The Icahn Parties will provide, as promptly as reasonably practicable, all information relating to the Icahn Nominees (and other information, if any) to the extent the Icahn Parties are advised by their legal counsel that such information is required under applicable law to be included in the Company's proxy statement and any other solicitation materials to be delivered to its shareholders in connection with the 2007 Annual Meeting or as may be reasonably requested by the Company’s certificate . To the extent possible, the Company's proxy statement and/or soliciting materials for the 2007 Annual Meeting shall contain the same type of incorporation information concerning the Icahn Nominees and bylaws the Other Stockholders Nominees as provided for the Incumbent Nominees. Notwithstanding anything herein to the contrary, if at any time prior to the 2007 Annual Meeting, the Board becomes aware of any fact with respect to any one or more of the Incumbent Nominees, the Icahn Nominees or the Other Stockholders Nominees that would be required to be disclosed in the Company's proxy materials (as amended or supplemented) under the Exchange Act and applicable Legal Requirements (including the applicable Marketplace Rules of rules and regulations thereof and which fact is not contained in the NASDAQCompany's proxy materials (as amended or supplemented), upon Merger Sub’s request, the Company shall also cause individuals designated immediately notify the Icahn Parties thereof and shall promptly amend or supplement the Company's proxy materials (as amended or supplemented) as may be required by Parent to constitute the number of members, rounded up to Exchange Act and the next whole number, on (A) each committee of the Company Board applicable rules and (B) each board of directors of each Subsidiary of the Company (and each committee regulations thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.

Directors. (a) Following the Acceptance Date Subject to applicable Law, promptly after Acquisition Sub accepts for payment and the payment by Merger Sub pays for such number any shares of Company Shares validly Common Stock tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Appointment Time”), Parent and at all times thereafter, Acquisition Sub shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the board of directors of the Company Board that equals as is equal to the product of (i) the total number of directors on the board of directors of the Company Board (giving effect to the election of any additional directors elected or designated by Acquisition Sub pursuant to this SectionSection 1.4) and (ii) multiplied by the percentage that the aggregate number of shares of Company Shares Common Stock beneficially owned by Parent and/or Merger and Acquisition Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of shares of Company Shares Common Stock then outstanding; provided, andhowever, upon Merger that, subject to applicable Law, and for so long as Parent and its subsidiaries, directly or indirectly, beneficially own in the aggregate more than fifty percent (50%) of the outstanding shares of Company Stock, Acquisition Sub shall be entitled to designate at least a majority of the directors on the board of directors of the Company at all times following the Appointment Time. Upon Acquisition Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferAppointment Time, the Company shall cause Parentshall, subject to the terms of the Second Restated Certificate of Incorporation and the Amended and Restated Bylaws of the Company, take such actions, including but not limited to filling vacancies or newly created directorships on the board of directors of the Company, increasing the size of the board of directors of the Company (including by amending the Amended and Restated Bylaws of the Company if necessary so as to increase the size of the board of directors of the Company) and/or requesting and accepting the resignations of such number of its incumbent directors, as is reasonably necessary to enable Acquisition Sub’s designees to be so elected or appointed designated to the Company Board, including by increasing board of directors of the number of directorsCompany, and seeking and accepting resignations of incumbent directorsshall cause Acquisition Sub’s designees to be so elected or designated at such time. Following the Acceptance Date and the payment by Merger Sub for such number of The Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)shall, upon Merger Acquisition Sub’s requestrequest following the Appointment Time, the Company shall also cause individuals persons elected or designated by Parent Acquisition Sub to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the board of directors of the Company of (Ai) each committee of the Company Board and board of directors of the Company, (Bii) each board of directors (or similar body) of each Subsidiary subsidiary of the Company Company, and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage extent permitted by applicable Law. The Company’s obligations under this Section 1.4(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.4(a), including mailing to the Company’s stockholders (together with the Schedule 14D-9, unless otherwise requested by Parent) the information required by Section 14(f) and Rule 14f-1 as such individuals represent on is necessary to enable Acquisition Sub’s designees to be elected or designated to the board of directors of the Company. Parent shall supply the Company Boardwith, and solely be responsible for, information with respect to Acquisition Sub’s designees and Parent’s and Acquisition Sub’s respective officers, directors and affiliates to the extent required by Section 14(f) and Rule 14f-1. Notwithstanding The provisions of this Section 1.4(a) are in addition to and shall not limit any rights that any of Acquisition Sub, Parent or any of their respective affiliates may have as a record holder or beneficial owner of shares of Company Common Stock as a matter of applicable Law with respect to the foregoing, until Parent and/or Merger Sub acquires a majority election of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for payment by Merger Sub for such number of Company any Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition"Share Acceptance Time"), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election or appointment of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offerpurchased Top-Up Option Shares, if any) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall promptly take all actions necessary to cause Parent’s 's designees to be elected or appointed to the Company Board, including increasing the size of the Company Board (including by amending the Amended and Restated Bylaws of the Company (the "Company Bylaws") if necessary), increasing the number of directors, and and/or seeking and accepting resignations of incumbent directors. Following directors (the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant date on which Parent's designees are elected or appointed to the Offer as satisfies Company Board, the Minimum Condition, subject to compliance with "Director Appointment Date"). After the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestShare Acceptance Time, the Company shall also use its best efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board and (Bii) each board of directors (or similar body) of each Subsidiary of the Company Company's Subsidiaries (and each committee (or similar body) thereof, if any) that represents the same percentage as such individuals represent on the Company Board. After the Acceptance Time, the Company shall also, upon Merger Sub's request, take all action necessary to elect to be treated as a "controlled company" as defined by NASDAQ Marketplace Rule 5615 and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.03(a) are in addition to and shall not limit any rights that Parent, Merger Sub or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the election of directors or otherwise. Notwithstanding the foregoing, following the election or appointment of Parent's designees to the Company Board and until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisEffective Time, the Company Board shall use its commercially reasonable efforts at all times include, and the Company, Parent and Merger Sub shall cause the Company Board to ensure that at all of the members times include, at least three (3) Continuing Directors and each committee of the Company Board and such committees and boards as the board of the date hereof who are not employees directors (or similar body) of each Subsidiary of the Company remain members shall at all times include, and the Company, Parent and Merger Sub shall cause each committee of the Company Board and such committees the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A "Continuing Director" shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected by the Continuing Directors then in office, each of whom shall be an "independent director" as defined by Rule 5605 (a)(2) of the NASDAQ Marketplace Rules and boards until eligible to serve on the Company's audit committee under the Exchange Act and NASDAQ Marketplace Rules and, at least one of whom shall be an "audit committee financial expert" as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled to designate a person to fill such vacancy who is not an officer, director, stockholder or designee of Parent or any of its Affiliates and who shall be deemed to be a Continuing Director for all purposes of this Agreement, or, if no Continuing Directors then remain, the other directors shall designate three (3) persons to fill such vacancies who are not officers, directors, stockholders or designees of Parent or any of its Affiliates, and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number Purchaser of any Company Shares validly tendered and not properly withdrawn pursuant to the Offer (the date thereof being referred to as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Control Date”), Parent and from time to time thereafter as Company Shares are acquired by Purchaser, Purchaser shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board of Directors as will give Purchaser, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors equal to at least that number of directors which equals the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub Purchaser or any Affiliate of Purchaser (including for purposes of this Section 1.3 such Company Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer, but excluding Company Shares held by the Company or any of its subsidiaries) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer. At each such time, the Company shall will also cause Parenteach committee of the Board of Directors, if requested by Purchaser, the board of directors of each of the subsidiaries and if requested by Purchaser, each committee of such board of directors of each of the subsidiaries to include Persons designated by Purchaser constituting the same percentage of each such committee or board as Purchaser’s designees constitute on the Board of Directors. The Company shall, upon request by Purchaser, promptly increase the size of the Board of Directors or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Purchaser’s designees to be elected or appointed to the Board of Directors in accordance with the terms of this Section 1.3 and shall cause Purchaser’s designees to be so elected; provided, however, that, in the event that Purchaser’s designees are appointed or elected to the Board of Directors, until the Effective Time (as defined in Section 2.3 hereof) the Board of Directors shall have at least three directors who are directors on the date hereof and who are neither officers of the Company Boardnor designees, including by increasing stockholders, Affiliates or associates (within the number meaning of the Federal securities laws) of Parent (one or more of such directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and “Independent Directors”); provided further, that if no Independent Directors remain, the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant other directors shall designate one Person to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules fill one of the NASDAQ)vacancies who shall be neither an officer of the Company nor a designee, upon Merger Sub’s requeststockholder, Affiliate or associate of Parent, and such Person shall be deemed to be an Independent Director for purposes of this Agreement. Subject to applicable law, the Company shall also cause individuals promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Purchaser has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Purchaser will supply the Company any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Parent to Purchaser constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts Board of Directors and prior to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (w) amend or terminate this Agreement on behalf of the Company, (x) exercise or waive any of the Company’s rights or remedies hereunder, (y) extend the time for performance of Purchaser’s obligations hereunder or (z) take any other action by the Company in connection with this Agreement required to be taken by the Board of Directors.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant The Board has duly adopted a resolution providing that immediately prior to the Offer as satisfies 2007 Annual Meeting, the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules size of the NASDAQ), Parent Board shall be entitled decreased to designate the number 9 members, and such resolution is in full force and effect and shall not be rescinded or modified. A true and correct copy of directors, rounded up such resolution has been provided to the next whole number, on Icahn Parties. From and after the Company Board that equals date hereof until the product completion of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer2007 Annual Meeting, the Company shall cause Parent’s designees take no other action to be elected (i) otherwise change the size (whether by increase or appointed to decrease) of the Company Board, including by increasing other than as contemplated herein, (ii) amend, in any respect, the number certificate of directorsincorporation or bylaws of the Company, and seeking and accepting resignations other than as contemplated herein, (iii) issue any of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn its securities to any person, other than pursuant to the Offer Company’s employee benefits and/or incentive plans or agreements existing as satisfies of the Minimum Conditiondate hereof, subject in each case, in the ordinary course of business and consistent with past practice, (iv) make any change to compliance with its capital structure, (v) amend the Rights Plan in any respect, other than as contemplated herein, or (vi) enter into any agreement to do any of the foregoing, in each case, without the prior written consent of the Icahn Parties, which consent shall not be unreasonably withheld, conditioned or delayed. The Board has also duly adopted a resolution nominating each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees, for election to the Board at the 2007 Annual Meeting and directing the Company and its officers and agents to solicit votes for the election of each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees in the same manner, and such resolution has not been rescinded or modified. A true and correct copy of such resolution has been provided to the Icahn Parties. The Board has duly adopted a resolution in which it recommends to the Company’s certificate shareholders that they vote for each of incorporation the Incumbent Nominees, the Icahn Nominees and bylaws the Other Stockholders Nominees as Directors of the Company at the 2007 Annual Meeting and directing that the Company include this recommendation in its proxy materials (as amended or supplemented) for the 2007 Annual Meeting, and such resolution has not been rescinded or modified. A true and correct copy of such resolution has been provided to the Icahn Parties. The Company shall cause the proxy used for the 2007 Annual Meeting to solicit authority to vote for each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees at the 2007 Annual Meeting. The Company shall use commercially reasonable efforts to solicit proxies in favor of the election of each of the Incumbent Nominees, the Icahn Nominees and the Other Stockholders Nominees at the 2007 Annual Meeting. Such nomination, recommendation and solicitation shall be effected in a reasonable manner and shall be undertaken for each such nominee in the same manner. The Icahn Parties will provide, as promptly as reasonably practicable, all information relating to the Icahn Nominees (and other information, if any) to the extent the Icahn Parties are advised by their legal counsel that such information is required under applicable Legal Requirements law to be included in the Company’s proxy statement and any other solicitation materials to be delivered to its shareholders in connection with the 2007 Annual Meeting or as may be reasonably requested by the Company. To the extent possible, the Company’s proxy statement and/or soliciting materials for the 2007 Annual Meeting shall contain the same type of information concerning the Icahn Nominees and the Other Stockholders Nominees as provided for the Incumbent Nominees. Notwithstanding anything herein to the contrary, if at any time prior to the 2007 Annual Meeting, the Board becomes aware of any fact with respect to any one or more of the Incumbent Nominees, the Icahn Nominees or the Other Stockholders Nominees that would be required to be disclosed in the Company’s proxy materials (including as amended or supplemented) under the Exchange Act and the applicable Marketplace Rules of rules and regulations thereof and which fact is not contained in the NASDAQCompany’s proxy materials (as amended or supplemented), upon Merger Sub’s request, the Company shall also cause individuals designated immediately notify the Icahn Parties thereof and shall promptly amend or supplement the Company’s proxy materials (as amended or supplemented) as may be required by Parent to constitute the number of members, rounded up to Exchange Act and the next whole number, on (A) each committee of the Company Board applicable rules and (B) each board of directors of each Subsidiary of the Company (and each committee regulations thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time.

Directors. (a) Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance Simultaneously with the Company’s certificate execution of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)this Agreement, Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of shall (i) increase the total number size of the Board from nine (9) to ten (10) directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) appoint the percentage that Nominee as a director of the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to serve on the Offer) bears to Board with a term expiring at the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer2017 Annual Meeting. In addition, the Company agrees that the Board and all applicable committees of the Board (unless a court of competent jurisdiction concludes that the Gilead Group has violated any provision of this Agreement) shall cause Parent’s designees take all actions necessary to be elected or appointed to include the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with Nominee on the Company’s certificate slate of incorporation nominees for the election of directors at the 2017 Annual Meeting and bylaws recommend and applicable Legal Requirements (including solicit proxies for the applicable Marketplace Rules election of the NASDAQNominee at the 2017 Annual Meeting in the same manner as for the other nominees nominated by the Board at the 2017 Annual Meeting (subject to the terms and conditions of the following paragraph). The members of the Gilead Group agree that the Company’s and the Board’s obligations in this Section 1.1(a) shall terminate, and the Nominee shall resign as a member of the Board (and all committees thereof), upon Merger Sub’s requestat such time (the “Trigger Event Resignation Date”) as a court of competent jurisdiction concludes that the Gilead Group has violated any provision of this Agreement. By entering into this Agreement, the Company shall also cause individuals designated by Parent Nominee hereby (a) waives any right to constitute receive equity compensation in connection with his service on the number of members, rounded up Board until the 2018 Annual Meeting and (b) irrevocably agrees to offer to the next whole number, on (A) each committee Board in writing his resignation as a member of the Board (and all committees thereof) upon the Trigger Event Resignation Date. The parties acknowledge that the Nominee, upon appointment or election to the Board, will be subject to the same protections and obligations regarding confidentiality, conflicts of interest, fiduciary duties, trading and disclosure and other governance guidelines and policies (collectively, “Company Policies”), and shall be required to preserve the confidentiality of the Company’s business and information, including discussions or matters considered in or for meetings of the Board or related thereto, and (B) each board of shall have the same rights and benefits, including with respect to insurance, indemnification, exculpation, compensation and fees, as are applicable to the independent directors of each Subsidiary the Company. In furtherance of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires the Nominee shall not share any reports, meeting materials, notices, draft minutes or other materials or information received by him in his capacity as a majority member of the outstanding Company Shares on Board with any of his Affiliates unless such Affiliates enter into a fully-diluted basis, confidentiality agreement with the Company shall use its commercially reasonable efforts to ensure that all of in substantially the members of same form executed by the Company Board and such committees and boards as of Gilead Group on the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timehereof.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and payment for, Shares by Acquisition pursuant to the payment by Merger Sub for Offer, Acquisition shall be entitled to designate such number of directors on the Board of Directors of the Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionwill give Acquisition, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company’s certificate 's Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled Directors equal to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Company's Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (ii) the percentage that the number of Company Shares beneficially owned purchased by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Acquisition in the Offer) Offer bears to the total number of Company Shares outstanding, andand the Company shall, upon Merger Sub’s request at any time following such time, cause Acquisition's designees to be so elected by its existing Board of Directors; provided, that in the purchase of and payment for Company Shares pursuant event that Acquisition's designees are elected to the OfferBoard of Directors of the Company, until the Effective Time such Board of Directors shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the "Independent Directors") and; provided further that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors of the Company on the date hereof shall designate two persons to fill such vacancies who shall not be officers or affiliates of the Company or any of its Subsidiaries, or officers or affiliates of Lucent or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, the Company shall cause Parent’s take all action requested by Lucent necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Acquisition shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Acquisition's designees). In connection with the foregoing, the Company will promptly, at the option of Lucent, either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Acquisition's designees to be elected or appointed to the Company Board, including by increasing the number of directorsto, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all Company's Board of the members of the Company Board and such committees and boards Directors as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and payment for, a majority of the payment outstanding Shares by Merger Sub for pursuant to the Offer, Sub shall be entitled and obligated to designate such number of directors on the Board of Directors of the Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionwill give Sub, subject to compliance with Section 14(f) of the Exchange Act, a majority of such directors, and the Company shall, at such time, cause Sub's designees to be so elected by its existing Board of Directors; PROVIDED, HOWEVER, that in the event that Sub's designees are elected to the Board of Directors of the Company’s certificate , until the Effective Time such Board of incorporation Directors shall have at least two directors who are directors on the date of this Agreement and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules who are not officers of the NASDAQCompany (the "Independent Directors"); and PROVIDED, Parent shall be entitled to designate FURTHER, that, in such event, if the number of directorsIndependent Directors shall be reduced below two for any reason whatsoever, rounded up the remaining Independent Director shall designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the next whole number, on other directors shall designate two persons to fill such vacancies who shall not be officers or affiliates of the Company Board that equals the product or officers or affiliates of (i) the total number Parent or any of directors on the Company Board (giving effect its subsidiaries, and such persons shall be deemed to the election be Independent Directors for purposes of any additional directors pursuant this Agreement. Subject to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offerapplicable law, the Company shall cause take all action requested by Parent necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing together with the mailing of the Schedule 14D-9 (provided that Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees). In connection with the foregoing, the Company will promptly, at the option of Parent’s , either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Sub's designees to be elected or appointed to the Company Board, including by increasing the number of directorsto, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionconstitute a majority of, subject to compliance with the Company’s certificate 's Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage Directors as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following the Acceptance Date and the payment by The Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to Agreement provides that, effective upon the Offer as satisfies the Minimum ConditionClosing, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall Endo will be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board HealthTronics board of directors that equals the product of (i) the total number of directors on the Company Board (giving effect to the election HealthTronics board of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent Endo and/or Merger Sub Purchaser (including Company Shares shares accepted for payment and actually paid by Merger Sub pursuant to the Offerpayment) bears to the total number of Company Shares shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall HealthTronics will cause ParentXxxx’s designees to be elected or appointed to the Company Boardboard of directors, including by increasing the number of directors, directors and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditiontime, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall HealthTronics will also cause individuals designated by Parent Endo to constitute the proportional number of members, rounded up to the next whole number, on (A) each committee of the Company Board HealthTronics board of directors and (B) as requested by Endo, each board of directors (or equivalent governing body) of each Subsidiary of the Company HealthTronics Entity (and each committee thereof) in proportion to the number of members that represents the same percentage as may be designated by HealthTronics to such individuals represent on the Company Boardboard of directors (or equivalent governing body) and each committee thereof. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires If Endo’s designees constitute a majority of the outstanding Company Shares on a fully-diluted basis, HealthTronics board after the Company shall use its commercially reasonable efforts Offer Closing and prior to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, then the affirmative vote of a majority of the directors of HealthTronics then in office who were not so designated by Endo will be required to authorize any termination of the Merger Agreement by HealthTronics, any amendment of the Merger Agreement requiring action by the HealthTronics board, any extension of time for performance of any obligation or action under the Merger Agreement by Endo or Purchaser and any waiver of compliance with any of the agreements or conditions contained in the Merger Agreement for the benefit of HealthTronics.

Directors. (ai) Following As of the Acceptance Date Date, and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of shares of Company Shares Common Stock beneficially owned by Parent and/or Merger Parent, Acquisition Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) their Affiliates bears to the total number of shares of Company Shares Common Stock then outstanding, and, upon Merger Sub’s request at any time following . After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Date, the Company shall cause shall, upon Parent’s 's reasonable request, take all actions as are reasonably necessary or desirable to enable Parent's designees to be so elected or appointed designated to the Company Board, including by promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the number size of directors, and seeking and accepting the Company Board (including amending the Company By-Laws if necessary to increase the size of the Company Board) and/or promptly securing the resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered its incumbent directors as is necessary to effect the foregoing agreement, and not properly withdrawn pursuant shall cause the Parent's designees to be so elected or designated at such time. After the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestAcceptance Date, the Company shall also also, upon Parent's request, cause individuals the directors elected or designated by be Parent to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Subsidiary of the Company Company's Subsidiaries and (and iii) each committee thereof(or similar body) that represents of each such board, in each case to the same percentage as such individuals represent on extent permitted by applicable Law and the Company BoardNasdaq. Notwithstanding After the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Date, the Company shall use its commercially reasonable efforts also, upon Parent's request, take all action necessary to ensure elect to be treated as a "controlled company" as defined by Nasdaq Marketplace Rule 4350(c) and make all necessary filings and disclosures associated with such status, The provisions of this Section 2.2(c) are in addition to and shall not limit any rights that all Parent, Acquisition Sub or any of their respective Affiliates may have as a record holder or beneficial owner of shares of Company Common Stock as a matter of applicable Law with respect to the members election of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. The Company shall within 10 Business Days of the Closing Date increase the size of its Board by two and fill the vacancies with the representatives designated (aas provided below) Following by the Acceptance Date Investors (each, a “Designated Director”). One of the Designated Directors shall be in a class whose terms ends in 2002 and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to other in a class whose term ends in 2004. For so long as the Offer original Investors as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Closing Date and/or their Affiliates together hold at least 50% of the shares of Series A Preferred Stock and the principal amount of the Notes issued on the Closing Date, Parent the Investors shall be entitled have the right to designate a maximum two (2) Designated Directors, and the number Board shall recommend at each meeting of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of shareholders at which any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees Designated Director is to be elected or appointed to include a Designated Director in the Board’s slate of nominees for election to the Company BoardBoard or to fill a vacancy left by a departed Designated Director, including by increasing the number of directorsin each case in order so that there may be two Designated Directors, and seeking and accepting resignations shall not take any action which is inconsistent with making such recommendation. For so long as the original Investors as of incumbent directors. Following the Acceptance Closing Date and/or their Affiliates together hold at least 30% of the shares of Series A Preferred Stock and the payment by Merger Sub principal amount of the Notes issued on the Closing Date, the Investors shall have the right to designate one (1) Designated Director, and the Board shall recommend at each meeting of shareholders at which such Designated Director is to be elected to include such Designated Director in the Board’s slate of nominees for such number of Company Shares validly tendered and not properly withdrawn pursuant election to the Offer as satisfies the Minimum ConditionBoard or to fill a vacancy left by a departed Designated Director, subject in each case in order so that there may be one Designated Director, and shall not take any action which is inconsistent with making such recommendation. With respect to compliance with the Company’s certificate any Holder, any calculation of incorporation ownership of shares of Series A Preferred Stock and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules principal amount of the NASDAQ), upon Merger Sub’s request, Notes under this Section 4 shall include the Company shall also cause individuals designated Common Stock issued in conversion of Series A Preferred Stock or the Notes held by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company BoardHolder. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires the Company may refuse a majority request by the Investors to designate (or continue to designate) a particular person if the Board determines that such person is subject to removal for cause or that such person’s status as a director would raise significant regulatory or competitive issues. In such case, the Investors may designate a substitute person who would not be so disqualified. In the event that the shareholders do not elect a Designated Director at a meeting of shareholders at which such Designated Director is nominated for election, then the Board shall convene a Board meeting promptly at which it shall increase the size of the outstanding Company Shares on a fully-diluted basisBoard by one member and appoint such Designated Director to the Board, subject to the Company shall use its commercially reasonable efforts to ensure that all numerical limitations contained in the Company’s Certificate of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeIncorporation.

Directors. (a) Following Subject to applicable Law and Nasdaq rules applicable to the Company, promptly upon the Acceptance Date Time and as long as Parent directly or indirectly beneficially owns not less than a majority of the payment by issued and outstanding shares of Company Common Stock, Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to at least that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of shares of Company Shares beneficially Common Stock owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) or any other Parent Subsidiary bears to (B) the total number of shares of Company Shares Common Stock that are issued and outstanding, andand the Company shall, upon at such time, promptly take all necessary action to cause Merger Sub’s request at any time following designees to be so elected provided, however, that in the purchase of and payment for Company Shares pursuant event that Merger Sub’s designees are appointed or elected to the OfferCompany Board, until the Effective Time, the Company Board shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company or any Company Subsidiary (the “Independent Directors”); and provided, further, that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Directors shall be entitled to designate one person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who are not officers, stockholders or affiliates of the Company, any Company Subsidiary, Parent or Merger Sub, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parentpromptly, at the option of Merger Sub, take all necessary action to either increase the size of the Company Board or obtain the resignation of such number of its current directors as is necessary to enable Merger Sub’s designees to be elected or appointed to the Company BoardBoard as provided above. At such time, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment persons designated by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to shall, as nearly as practicable, constitute at least the Offer same percentage as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules persons designated by Merger Sub of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number Board of members, rounded up to the next whole number, on (A1) each committee of the Company Board and Board, (B2) each board of directors of each Subsidiary of the Company Subsidiary, and (and 3) each committee thereof) that represents of each such board, in each case only to the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeextent permitted by applicable Law.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number Purchaser of Company any Shares validly tendered and not properly withdrawn pursuant to the Offer Offer, and from time to time thereafter as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)Shares are acquired by Purchaser, Parent shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board of Directors as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors equal to at least that number of directors which equals the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub or any affiliate of Parent (including Company for purposes of this Section 1.3 such Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, but excluding Shares held by the Company shall cause Parent’s designees or any of its Subsidiaries) bears to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directorsShares outstanding. Following the Acceptance Date and the payment by Merger Sub for At each such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall will also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (Ai) each committee of the Company Board and of Directors, (Bii) each if requested by Parent, the board of directors of each Subsidiary of the Company Subsidiaries and (and iii) if requested by Parent, each committee thereof) that represents of such board to include persons designated by Parent constituting the same percentage of each such committee or board as such individuals represent Parent's designees constitute on the Board of Directors. The Company Boardshall, upon request by Parent, promptly increase the size of the Board of Directors or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors in accordance with the terms of this Section 1.3 and shall cause Parent's designees to be so elected; provided, however, that, in the event that Parent's designees are appointed or elected to the Board of Directors, until the Effective Time (as defined in Section 2.2 hereof) the Board of Directors shall have at least two directors who are directors on the date hereof and who are neither officers of the Company, Contributing Shareholders nor designees, shareholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent or any Contributing Shareholder (such directors, the "Independent Directors"); provided further, that if at any time or from time to time there are fewer than two Independent Directors, the other directors shall elect to the Board of Directors such number of persons who shall be neither officers of the Company, Contributing Shareholders nor designees, shareholders, affiliates or associates of Parent or any Contributing Shareholder so that the total of such persons and remaining Independent Directors serving on the Board of Directors is at least two. Any such person elected to the Board of Directors pursuant to the second proviso of the preceding sentence shall be deemed to be an Independent Director for purposes of this Agreement. Subject to applicable law, the Company shall promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to shareholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply the Company any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the foregoingcontrary, until following the time directors designated by Parent and/or Merger Sub acquires constitute a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts Board of Directors and prior to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) exercise or waive any of the Company's rights or remedies hereunder, (iii) extend the time for performance of Parent's obligations hereunder or (iv) take any other action by the Company in connection with this Agreement required to be taken by the Board of Directors.

Directors. (a) Following the Acceptance Date and the payment by Merger Promptly after such time as Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company purchases Shares pursuant to the Offer, Sub shall be entitled, to the fullest extent permitted by law, to designate at its option up to that number of directors, rounded to the nearest whole number, of the Company's Board of Directors, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by Sub equal to the percentage of the aggregate voting power of the shares of Common Stock held by Parent or any of its Subsidiaries; provided, however, that in the event that Sub's designees are elected to the Board of Directors of the Company, until the Effective Time such Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); and provided further that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall designate a person or persons to fill such vacancy or vacancies, each of whom shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who shall not be officers or affiliates of the Company or any of its Subsidiaries, or officers or affiliates of Parent or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Following the election or appointment of Sub's designees pursuant to this Section 6.3 and prior to the Effective Time, any amendment, or waiver of any term or condition, of this Agreement or the Company Charter or the By-Laws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Sub or waiver or assertion of any of the Company's rights hereunder, and any other consent or action by the Board of Directors of the Company with respect to this Agreement, will require the concurrence of a majority of the Independent Directors and no other action by the Company, including any action by any other director of the Company, shall be required for purposes of this Agreement. To the fullest extent permitted by applicable law, the Company shall cause take all action requested by Parent that is reasonably necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees). In connection with the foregoing, the Company will promptly, at the option of Parent’s , to the fullest extent permitted by law, either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Sub's designees to be elected or appointed to the Company Board, including by increasing the number Company's Board of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Directors as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Promptly upon the Acceptance Date and the payment purchase by Merger Sub for such number Purchaser of any Company Shares validly tendered and not properly withdrawn pursuant to the Offer (the date thereof being referred to as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ“Control Date”), Parent and from time to time thereafter as Company Shares are acquired by Purchaser, Purchaser shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Company Board of Directors as will give Purchaser, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors equal to at least that number of directors which equals the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors appointed or elected pursuant to this Sectionsentence and including current directors serving as officers of the Company) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub Purchaser or any Affiliate of Purchaser (including for purposes of this Section 1.3 such Company Shares as are accepted for payment and actually paid by Merger Sub pursuant to the Offer, but excluding Company Shares held by the Company or any of its subsidiaries) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer. At each such time, the Company shall will also cause Parenteach committee of the Board of Directors, if requested by Purchaser, the board of directors of each of the subsidiaries and if requested by Purchaser, each committee of such board of directors of each of the subsidiaries to include Persons designated by Purchaser constituting the same percentage of each such committee or board as Purchaser’s designees constitute on the Board of Directors. The Company shall, upon request by Purchaser, promptly increase the size of the Board of Directors or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Purchaser’s designees to be elected or appointed to the Board of Directors in accordance with the terms of this Section 1.3 and shall cause Purchaser’s designees to be so elected; provided, however, that, in the event that Purchaser’s designees are appointed or elected to the Board of Directors, until the Effective Time (as defined in Section 2.3 hereof) the Board of Directors shall have at least three directors who are directors on the date hereof and who are neither officers of the Company Boardnor designees, including by increasing stockholders, Affiliates or associates (within the number meaning of the Federal securities laws) of Parent (one or more of such directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and “Independent Directors”); provided further, that if no Independent Directors remain, the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant other directors shall designate one Person to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules fill one of the NASDAQ)vacancies who shall be neither an officer of the Company nor a designee, upon Merger Sub’s requeststockholder, Affiliate or associate of Parent, and such Person shall be deemed to be an Independent Director for purposes of this Agreement. Subject to applicable law, the Company shall also cause individuals promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Purchaser has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Purchaser will supply the Company any information with respect to itself and its nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to the contrary, following the time directors designated by Parent to Purchaser constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts Board of Directors and prior to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Time, the affirmative vote of a Table of Contents majority of the Independent Directors shall be required to (w) amend or terminate this Agreement on behalf of the Company, (x) exercise or waive any of the Company’s rights or remedies hereunder, (y) extend the time for performance of Purchaser’s obligations hereunder or (z) take any other action by the Company in connection with this Agreement required to be taken by the Board of Directors.

Directors. (a) Following Section 1.3.1 Effective upon the Acceptance Date and the payment first acceptance for exchange by Merger Sub for such number of shares of Company Shares validly tendered and not properly withdrawn Common Stock pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ"Appointment Time"), Parent Manpower shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the number of shares of Company Shares beneficially Common Stock owned by Parent and/or Manpower or Merger Sub (including shares of Company Shares Common Stock accepted for payment and actually paid by Merger Sub pursuant to the Offerpayment) bears to the total number of shares of Company Shares Common Stock outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action reasonably necessary to cause Parent’s Manpower's designees to be elected or appointed to the Company Board, including by including, without limitation, at the option of Manpower, increasing the number of directors, and or seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant , or both; provided, however, that prior to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestEffective Time, the Company Board shall also cause individuals designated by Parent always have at least two members who were directors of the Company prior to constitute consummation of the Offer (each, a "Continuing Director"). If the number of members, rounded up Continuing Directors is reduced to fewer than two for any reason prior to the next whole numberEffective Time, on (A) each committee the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy who shall be deemed to be a Continuing Director for purposes of this Agreement or, if no Continuing Directors then remain, the other directors shall designate two persons to fill such vacancies who shall not be officers or affiliates of Manpower or any of its subsidiaries, and such persons shall be deemed to be Continuing Directors for purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, if Manpower's designees are elected to the Company Board and (B) each board prior to the Effective Time, the affirmative vote of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, Continuing Directors shall be required for the Company shall use its commercially reasonable efforts to ensure that all (a) amend or terminate this Agreement or agree or consent to any amendment or termination of this Agreement, (b) waive compliance with any of the members agreements or conditions contained herein for the benefit of the Company Board or Company Shareholders or any of its or their rights, benefits or remedies hereunder, (c) extend the time for performance of Manpower's and such committees and boards as of Merger Sub's respective obligations hereunder, or (d) approve any other action by the date hereof who are not employees Company which is reasonably likely to adversely affect the interests of the Company remain members of Shareholders (other than Manpower, Merger Sub and their affiliates (other than the Company Board and such committees and boards until its Subsidiaries)) with respect to the Effective Timetransactions contemplated by this Agreement.

Directors. (a) Following In the Acceptance Date and Merger Agreement, the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionhas agreed that, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)law, Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Board that equals the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, and, promptly upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub the Purchaser for such number of Company Shares validly tendered and not properly withdrawn purchased pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires representing not less than a majority of the outstanding Company Shares on a fully-fully diluted basis, and from time to time thereafter, the Company shall use its commercially reasonable efforts will, upon request of Parent, promptly take all actions necessary to ensure that all cause a majority of the members directors of the Company Board and such committees and boards as to consist of Parent's designees, including by accepting the resignations of those incumbent directors designated by the Company or increasing the size of the date hereof who 21 Company's Board of Directors and causing Xxxxxx's designees to be elected. The Company's obligations to appoint Xxxxxx's designees to the Board are not employees subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder, if applicable. Following the election or appointment of Xxxxxx's designees as described in this paragraph and prior to the Effective Time, any amendment or termination of the Merger Agreement by the Company or the Company's Board of Directors, any extension by the Company or the Company's Board of Directors, of the time for the performance of any of the obligations or other acts of Parent or the Purchaser or waiver of any of the Company's rights under the Merger Agreement or any other action by the Company concerning the Merger Agreement or any of the transactions contemplated thereby, will require the concurrence of a majority of the directors of the Company remain members then in office who were not designated by Parent. REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains certain representations and warranties by the Company, including representations and warranties concerning: the organization and qualification of the Company and its subsidiaries; the capitalization of the Company; the authority of the Company relative to the execution and delivery of, and consummation of the transactions contemplated by, the Merger Agreement and approval by the Board of Directors of the Company regarding certain related matters; the absence of any violations of the corporate documents and certain instruments of the Company or its subsidiaries or of any statute, rule, regulation, order or decree, subject to certain exceptions; the accuracy of reports and documents filed by the Company with the Commission since January 1, 1994 and certain financial statements of the Company; the absence since November 30, 1996 (except as amended or supplemented in filings prior to the date of the Merger Agreement with the Commission) to the date of the Merger Agreement of any event or occurrence (including the incurrence or existence of any liability) which, individually or in the aggregate, would have a Company Material Adverse Effect (as defined in the Merger Agreement); the absence of litigation which could have a Company Material Adverse Effect; compliance by the Company with applicable laws, regulations, and similar matters; payment by the Company of taxes; compliance with certain laws relating to employee benefit plans; the possession of right, title and interest by the Company and its subsidiaries in certain intellectual property; the absence of ongoing infringement by the Company of intellectual property rights belonging to a third-party, indemnification by the Company for any such committees infringement or claims or demands against the Company for any such infringement; the absence of pending or threatened challenges, or grounds for a challenge, to the rights of the Company to use certain trade secrets or proprietary or confidential information; the absence of any material defect in the programming and boards until operation of the Company's software; the absence of material rights of third parties to use the Company's software; the taking by the Board of Directors of the Company of all appropriate and necessary action such that the provisions of Section 203 of the DGCL will not apply to the transactions contemplated by the Merger Agreement; and incurrence of broker's and similar fees. The Merger Agreement also contains certain representations and warranties by Parent and the Purchaser, including that Parent or the Purchaser has and will have at the time of acceptance for payment and purchase of Shares under the Offer and at the Effective Time.Time the funds necessary to consummate the Offer and the Merger and the transactions contemplated thereby and to pay related fees and expenses. CONDITIONS TO THE MERGER. Under the Merger Agreement, the respective obligations of each party to effect the Merger are subject to the fulfillment of each of the following conditions: (i) the Purchaser shall have accepted for payment and paid for Shares pursuant to the Offer in accordance with the terms thereof; (ii) the vote of the stockholders of the Company necessary to consummate the transactions contemplated by the Merger Agreement shall have been obtained, if required by applicable law; and (iii) no statute, rule, regulation, judgment, writ, decree, order or injunction shall have been promulgated, enacted, entered or enforced, and no other action shall have been taken, by any domestic, foreign or supranational government or governmental, administrative or regulatory authority or agency of competent jurisdiction or by any court or tribunal of competent jurisdiction, domestic, foreign or supranational, that in any of the foregoing cases has the effect of making illegal or directly or indirectly restraining, prohibiting or restricting the consummation of the Merger. 22

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment by Merger Sub for such number of Company Acquisition for, all Xxxxxxxx Shares validly tendered and not properly withdrawn pursuant to the Offer Offer, Acquisition shall be entitled to designate such number of directors on the Board of Directors of Xxxxxxxx as satisfies the Minimum Conditionwill give Acquisition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act, Parent shall be entitled representation on such Board of Directors equal to designate the at least that number of directors, rounded up to the next whole numbernumber (and in no event less than a majority of the Board of Directors), on the Company Board that equals which is the product of (ia) the total number of directors on the Company such Board of Directors (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) multiplied by (b) the percentage that (i) such number of Xxxxxxxx Shares so accepted for payment and paid for by Acquisition or otherwise owned by Acquisition and its affiliates bears to (ii) the percentage number of such Xxxxxxxx Shares outstanding, and Xxxxxxxx shall, at such time, cause Acquisition's designees to be so elected; provided, however, that in the event that Acquisition's designees are appointed or elected to the Board of Directors of the Company, until the Effective Time of the Merger such Board of Directors shall have at least two directors who are directors on the date hereof or who are otherwise not officers, directors or affiliates of Acquisition and are independent directors under the rules of the American Stock Exchange (the "Independent Directors") and provided further that, in such event, if the number of Company Shares beneficially owned Independent Directors shall be reduced below two for any reason whatsoever, any remaining Independent Directors (or Independent Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who shall not be officers, stockholders or affiliates of Acquisition and who shall be independent directors under the rules of the American Stock Exchange, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, Xxxxxxxx shall take all action requested by Parent and/or Merger Sub Acquisition necessary to effect any such election, including mailing to its shareholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and Xxxxxxxx agrees to make such mailing with the mailing of the Schedule 14D-9 (including Company Shares accepted for payment and actually paid by Merger Sub pursuant provided that Acquisition shall have provided to Xxxxxxxx on a timely basis all information required to be included in the Offer) bears Information Statement with respect to Acquisition's designees). In connection with the total foregoing, Xxxxxxxx will promptly, at the option of Acquisition, either increase the size of Xxxxxxxx'x Board of Directors or obtain the resignation of such number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant its current directors as is necessary to the Offer, the Company shall cause Parent’s enable Acquisition's designees to be elected or appointed to the Company Board, including by increasing the number Xxxxxxxx'x Board of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer Directors as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Promptly upon the Acceptance Date and the payment by Merger Sub for such number purchase of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionOffer, subject and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements time thereafter, (including the applicable Marketplace Rules of the NASDAQ), i) Parent shall will be entitled to designate the such number of directorsdirectors ("PARENT'S DESIGNEES"), rounded up to the next whole number, as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Company Board that equals equal to the product of (iA) the total number of directors on the Company Board (giving effect to any increase in the election number of any additional directors pursuant to this SectionSection 1.5) and (B) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being, the "BOARD PERCENTAGE"); PROVIDED, HOWEVER, that if the number of Shares purchased pursuant to the Offer equals or exceeds a majority of the outstanding Shares, the Board Percentage will in all events be a majority of the members of the Company Board, and (ii) the percentage that Company will, upon request by Parent, promptly satisfy the Board Percentage by (A) increasing the size of the Company Board or (B) using its reasonable best efforts to secure the resignations of such number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant directors as is necessary to enable Parent's Designees to be elected to the OfferCompany Board, or both, and will use its reasonable best efforts to cause Parent's Designees promptly to be so elected, subject in all instances to compliance with Section 14(f) bears of the Exchange Act and Rule 14f-1 promulgated thereunder. Promptly after the date hereof, Parent shall provide to the total number Company the names of its designees for election to the Company Shares outstanding, andBoard and all other information relating to such designees necessary for the Company to comply with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. At the request of Parent, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall will use its reasonable best efforts to cause Parent’s designees to be elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by the Parent to constitute the number same Board Percentage of members, rounded up to the next whole number, on (Ai) each committee of the Company Board and Board, (Bii) each the Company's representation on the board of directors of each any Subsidiary (as defined below) of the Company, and (iii) the Company's representation on any committee of the board of directors of any Subsidiary of the Company (and each committee thereof) that represents Company. At the same percentage as such individuals represent on request of Parent, the Company Boardwill take, at its expense, all reasonable action necessary to effect any such election. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself, Xxxxxx's Designees and Xxxxxx's officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder to be included in Schedule 14D-9. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of at all times prior to the outstanding Company Shares on a fully-diluted basisEffective Time, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards will include at least two Continuing Directors as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedefined in Section 1.5(b) below.

Directors. (a) Following Upon the Acceptance Date and the payment by Time, Parent or Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant shall be entitled to the Offer as satisfies the Minimum Conditiondesignate, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (Law, including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act and Rule 14f-1 promulgated thereunder, Parent shall be entitled such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to designate the that number of directors, rounded up to the next whole number, on the Company Board that equals which is the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) multiplied by (b) the percentage that (i) such number of shares of Company Common Stock so accepted for payment and paid for by Merger Sub plus the number of shares of Company Common Stock otherwise beneficially owned by Parent and its Affiliates bears to (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of Company Shares outstanding, andand the Company shall, upon at such time, cause Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be so elected (the “Merger Sub Designees”); provided, however, that in the event that Merger Sub Designees are appointed or appointed elected to the Company Board, including by increasing until the Effective Time, the Company Board shall have at least two directors who were directors on the date of this Agreement and who shall be independent for purposes of Rule 10A-3 promulgated under the Exchange Act and the continued listing requirements of the NASDAQ (the “Independent Directors”); and provided further that, in such event, if the number of directorsIndependent Directors shall be reduced below two for any reason whatsoever, and seeking and accepting resignations the remaining Independent Director shall be entitled to designate a Person to fill such vacancy who shall be deemed to be an Independent Director for purposes of incumbent directors. Following this Agreement or, if no Independent Directors then remain, the Acceptance Date other directors shall designate two Persons to fill such vacancies who are independent for purposes of Rule 10A-3 promulgated under the Exchange Act and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules continued listing requirements of the NASDAQ), upon Merger Sub’s requestand such Persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable Law, the Company shall also use its reasonable best efforts to take all actions necessary to cause individuals designated by Parent the Merger Sub Designees to constitute become members of the number of membersCompany Board, rounded up to the next whole number, on including (A) each committee subject to the Company Charter and Company By-Laws, increasing the size of the Company Board and (B) obtaining the resignation of such number of its current directors as is, in each board of directors of each Subsidiary case, necessary to enable such designees to be so elected or appointed to the Company Board in compliance with applicable Law (including, to the extent applicable prior to the Effective Time, the continued listing requirements of the NASDAQ). The Company (and each committee thereof) that represents the same percentage as such individuals represent on shall mail to the Company Board. Notwithstanding Stockholders the foregoing, until Parent and/or Merger Sub acquires a majority Information Statement containing the information and consents required by Section 14(f) of the outstanding Company Shares on a fully-diluted basisExchange Act and Rule 14f-1 promulgated thereunder, and the Company shall use its commercially reasonable efforts to ensure that all make such mailing concurrently with the mailing of the members Schedule 14D-9 (provided that Parent and Merger Sub shall have provided to the Company on a timely basis all information and consents required to be included in the Information Statement with respect to the Merger Sub Designees and Parent’s officers, directors and Affiliates). Parent will be solely responsible for any information with respect to the Merger Sub Designees and Parent’s officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Notwithstanding anything in this Agreement to the contrary, from and after the time, if any, that the Merger Sub Designees constitute a majority of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until prior to the Effective Time, subject to the terms hereof, (1) any amendment or termination of this Agreement by the Company, (2) any extension by the Company of the time for the performance of any of the obligations or other acts of Parent or Merger Sub hereunder, (3) any exercise or waiver of any of the Company’s rights or remedies hereunder (including the granting of any consent or approval hereunder), (4) any amendment to the Company Charter or Company By-Laws or (5) except for transactions in accordance with the terms of this Agreement, any transaction between the Company or any of its Subsidiaries, on the one hand, and Parent or any of its Affiliates (other than the Company and its Subsidiaries), on the other, in each case shall require the concurrence of each of the Independent Directors.

Directors. (a) Following Effective upon the Acceptance Date and the acceptance for --------- payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ"Appointment Time"), Parent shall be entitled to designate the number of directors, rounded up to the next whole number, on the Company Company's Board of Directors that equals the product of (i) the total number of directors on the Company Company's Board of Directors (giving effect to the election of any additional directors pursuant to this SectionSection 1.3) and (ii) the percentage that the number of Company Shares beneficially owned by Parent and/or or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offerpayment) bears to the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall take all action reasonably necessary to cause Parent’s 's designees to be elected or appointed to the Company BoardCompany's Board of Directors, including by including, without limitation, increasing the number of directors, and or seeking and accepting resignations of incumbent directors. Following , or both; provided that, prior to the Acceptance Date and the payment by Merger Sub for such number Effective Time (as defined below), Company's Board of Directors shall always have at least two members who were directors of Company Shares validly tendered and not properly withdrawn pursuant prior to consummation of the Offer as satisfies the Minimum Condition(each, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQa "Continuing Director"), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute . If the number of members, rounded up Continuing Directors is reduced to less than two for any reason prior to the next whole numberEffective Time, on (A) each committee the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy. Notwithstanding anything in this Agreement to the contrary, if Parent's designees are elected to Company's Board of Directors prior to the Effective Time, the affirmative vote of the Continuing Directors shall be required for Company Board to (a) amend or terminate this Agreement or agree or consent to any amendment or termination of this Agreement, (b) waive any of Company's or any Company stockholder's rights, benefits or remedies hereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (Bd) each approve any other action by Company which is reasonably likely to adversely affect the interests of the stockholders of Company (other than Parent, Merger Sub and their affiliates (other than Company and its subsidiaries)), with respect to the transactions contemplated by this Agreement. (b) Company's obligations to appoint designees to its board of directors of each Subsidiary shall be subject to Section 14(f) of the Company (Exchange Act and each committee thereof) that represents the same percentage as such individuals represent on the Company BoardRule 14f-l promulgated thereunder. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use promptly take all actions required pursuant to Section 1.3 and Rule 14f-l in order to fulfill its commercially reasonable efforts obligations under this Section 1.3 and shall include in the Schedule 14D-9 such information with respect to ensure that all of the members of the Company Board and such committees its officers and boards directors as of the date hereof who are not employees of the is required under Section 14(f) and Rule 14f-l to fulfill its obligations under this Section 1.3. Parent will supply to Company remain members of the Company Board in writing and such committees be solely responsible for any information with respect to itself and boards until the Effective Timeits nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.

Directors. (a) Following Promptly upon the Acceptance Date purchase of and the payment for any Shares by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn Parent or Purchaser pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Offers which represents at least a majority of the NASDAQ)Shares outstanding and no less than a majority of the voting power of the outstanding shares of capital stock of the Company entitled to vote in the election of directors and at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals of Directors as is equal to the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Purchaser, Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) any of their affiliates bears to the total number of Shares then outstanding. The Company Shares outstanding, andshall, upon Merger SubParent’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferOffers, take such actions, including but not limited to promptly filling vacancies or newly created directorships on the Company Board of Directors, promptly increasing the size of the Company Board of Directors (including by amending the Bylaws of the Company if necessary so as to increase the size of the Company Board of Directors) and/or promptly securing the resignations of such number of its incumbent directors (subject to the right of any holder of Class B Shares to designate directors of the Company as provided in the Company Certificate) as are necessary to enable Parent’s designees to be so elected or designated to the Company Board of Directors, and shall use its commercial best efforts to cause Parent’s designees to be so elected or designated at such time. The Company shall, upon Parent’s request following the purchase of and payment for Shares pursuant to the Offers, also cause persons elected or designated by Parent to constitute the same percentage (rounded up to the next whole number) as is on the Company Board of Directors of (i) each committee of the Company Board of Directors (other than the Special Committee), (ii) each board of directors (or similar body) of each Company Subsidiary and (iii) each committee (or similar body) of each such board, in each case only to the extent permitted by applicable law or the rules of any stock exchange on which the Class A Shares are listed. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including mailing to stockholders (together with the Schedule 14D-9) the information required by Section 14(f) and Rule 14f-1 as is necessary to enable Parent’s designees to be elected or appointed designated to the Company BoardBoard of Directors. Parent or Purchaser shall supply the Company with information with respect to either of them and their nominees, including by increasing the number of directorsofficers, directors and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant affiliates to the Offer extent required by Section 14(f) and Rule 14f-1. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that any of Purchaser, Parent or any of their respective affiliates may have as satisfies the Minimum Condition, subject to compliance a holder or beneficial owner of Shares as a matter of law with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up respect to the next whole number, on (A) each committee of the Company Board and (B) each board election of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeor otherwise.

Directors. (a) Following Promptly upon the Acceptance Date acceptance for payment of, and the payment for, any Shares by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules which represent at least a majority of the NASDAQoutstanding Shares (on a fully diluted basis), Parent shall be entitled to designate the such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board that equals of Directors equal to the product of (ia) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (iib) the percentage that the number of shares of Company Shares beneficially owned Common Stock purchased by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to the total number of shares of Company Shares Common Stock outstanding; PROVIDED, andHOWEVER, upon Merger that in the event that Sub’s request at any time following the purchase of and payment for Company Shares pursuant 's designees are elected to the OfferBoard of Directors of the Company, until the Effective Time such Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company (the "INDEPENDENT DIRECTORS"); and PROVIDED FURTHER that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall designate two persons to fill such vacancies who shall not be officers or affiliates of the Company or any of its subsidiaries, or officers or affiliates of Parent or any of its subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Subject to applicable law, the Company shall cause take all action requested by Parent necessary to effect any such election, including mailing to its shareholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees). In connection with the foregoing, the Company will promptly, at the option of Parent’s , either increase the size of the Company's Board of Directors and/or obtain the resignation of such number of its current directors as is necessary to enable Sub's designees to be elected or appointed to the Company Board, including by increasing the number of directorsto, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Conditionconstitute a majority of, subject to compliance with the Company’s certificate 's Board of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage Directors as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeprovided above.

Directors. (a) Following Subject to applicable Law and applicable marketplace rules of The NASDAQ Stock Market LLC applicable to the Acceptance Date Company at such time, promptly upon the acceptance for payment of and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies satisfying the Minimum ConditionTender Condition (the "Acceptance Time"), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules as long as Parent directly or indirectly beneficially owns not less than a majority of the NASDAQ)issued and outstanding Shares, Parent Merger Sub shall be entitled to designate such number of directors on the Company Board as will give Merger Sub representation on the Company Board equal to that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) or any other subsidiary of Parent bears to (B) the total number of Shares that are issued and outstanding. The Company Shares outstanding, andshall also, upon the request of Parent, cause such persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of (I) each committee of the Company Board, subject to compliance with applicable securities Laws and the marketplace rules of The NASDAQ Stock Market LLC, and (II) each board of directors (or similar body) of each Company Subsidiary and each committee of such board of directors (or similar body); provided, however, that in the event that Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant 's designees are appointed or elected to the OfferCompany Board, until the Effective Time, the Company Board shall retain from the directors who are directors on the date of this Agreement and who are not also officers of the Company, such number of "independent directors" (as defined by the Marketplace Rules of The NASDAQ Stock Market LLC) as may be required by such rules or U.S. federal securities laws (the "Continuing Directors"); and provided further that, in such event, if the number of Continuing Directors shall be reduced below such required number for any reason whatsoever, the Company Board shall cause the Person(s) designated by the remaining Continuing Director(s) to fill such vacancy(ies), and such person(s) shall be deemed to be a Continuing Director(s) for purposes of this Agreement or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate persons to fill such vacancies who are not officers, stockholders or affiliates of the Company, any Company Subsidiary, Parent or Merger Sub, and such persons shall be deemed to be Continuing Directors for purposes of this Agreement. In connection with the foregoing, the Company shall cause Parent’s promptly, at the request of Merger Sub, use its commercially reasonable efforts to either increase the size of the Company Board or obtain the resignation of such number of its current directors, or both, as is necessary to enable Merger Sub's designees to be elected or appointed to the Company Board, including by increasing the number of directorsBoard as provided above, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on (A) each committee of the Company Board and (B) each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that take all of the members of actions available to the Company Board and such committees and boards as of to cause the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeMerger Sub's designees to be so elected or appointed.

Directors. (a) Following Subject to the Acceptance Date terms of the Stockholder Agreement, dated September 19, 2001 (the “Company Stockholder Agreement”), among Bxxxxxx-Xxxxx Squibb Company and the Company, after the Purchaser accepts for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition“Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Parent, the Offer) Purchaser or any of their respective affiliates bears to the total number of Shares then outstanding (including without limitation, in each case, any outstanding securities of the Company owned by Parent, the Purchaser or any of their respective affiliates that are convertible or exchangeable into or exercisable for Shares outstanding, and, upon Merger Sub’s request at any time following on an as-converted basis). After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall, upon Parent’s request, take all actions as are necessary or desirable to enable Parent’s designees to be so elected or designated to the Company Board, including but not limited to promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including without limitation by amending the Company Bylaws if necessary to increase the size of the Company Board) and/or promptly securing the resignations of such number of its incumbent directors, and shall cause Parent’s designees to be so elected or appointed designated at such time. Subject to the terms of the Company BoardStockholder Agreement, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following after the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestTime, the Company shall also also, upon Parent’s request, cause individuals the directors elected or designated by Parent to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each the board of directors of each Company Subsidiary and (iii) each committee (or similar body) of each such board, in each case to the extent permitted by applicable Law and the Marketplace Rules of the Company Nasdaq Global Market (and each committee thereof) that represents “Nasdaq”). After the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use its commercially reasonable efforts also, upon Parent’s request, take all action necessary to ensure elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 4350(c) and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that all Parent, the Purchaser or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the members election of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Promptly after the Acceptance Date and purchase of a majority of the payment by Merger Sub for such number of Company outstanding Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionOffer, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), Parent Purchaser shall be entitled to designate the up to such number of directors, rounded up to the next whole number, on the Company Board that equals as will give Purchaser representation on the Board equal to the product of (i) the total number of directors on the Company Board (Board, after giving effect to the election of any additional directors elected pursuant to this Section) , and (ii) the percentage that the voting power represented by such number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant so purchased bears to the Offer) bears to voting power represented by the total number of Company Shares outstandingoutstanding Shares, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, the Company shall cause Parent’s designees to be elected or appointed as soon as practicable after notice by Purchaser to the Company Boardof its desire to have such directors so elected. The Company shall, including by increasing at the request of Purchaser, take all action necessary to cause to be created vacancies for that number of directorsdirectors which Purchaser is entitled to designate under this Section and, with respect to each vacancy created, shall take all action necessary to effect the election of such number of Purchaser's designees to the Board of Directors, including, if required by applicable law, mailing to its stockholders the information required by section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Purchaser and Sub will provide to the Company in writing, and seeking be solely responsible for, any information with respect to such companies and accepting resignations their nominees, officers, directors and affiliates required by Section 14(f) of incumbent directorsthe Exchange Act and Rule 14f-1 thereunder. Following the Acceptance Date and the payment by Merger Sub for such number election or appointment of Company Shares validly tendered and not properly withdrawn pursuant Purchaser designees to the Offer as satisfies the Minimum ConditionBoard any amendment of this Agreement, subject to compliance with any termination of this Agreement by the Company’s certificate , any extension of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules time for performance of any of the NASDAQ)obligations of Purchaser or Sub under this Agreement, upon Merger Sub’s request, the Company shall also cause individuals designated by Parent to constitute the number any waiver of members, rounded up any condition to the next whole number, on (A) each committee obligations of the Company Board and (B) each board of directors of each Subsidiary or any of the Company (and each committee thereof) that represents the same percentage as such individuals represent on Company's rights under this Agreement or other action by the Company Board. Notwithstanding under this Agreement shall be effected only by the foregoing, until Parent and/or Merger Sub acquires action of a majority of the outstanding directors of the Company Shares on a fully-diluted basisthen in office who are Continuing Directors. Notwithstanding the provisions of this Section 2.4, the Company parties hereto shall use its commercially reasonable their respective best efforts to ensure that all at least three of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until shall, at all times prior to the Effective TimeTime be, Continuing Directors.

Directors. (a) Following Subject to compliance with applicable Law, promptly upon the Acceptance Date and the acceptance for payment by Merger Sub for of shares of Common Stock pursuant to the Tender Offer representing at least such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer shares of Common Stock as satisfies shall satisfy the Minimum ConditionCondition (the time of such acceptance, subject the “Acceptance Time”), and from time to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)time thereafter, Parent shall be entitled to designate the such number of directors, rounded up to the next whole number, on to the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (determined after giving effect to the election of any additional directors elected pursuant to this Sectionsentence) and (ii) multiplied by the percentage that of the total number of Company Shares outstanding shares of Common Stock at such time represented by the aggregate number of shares of Common Stock beneficially owned by Parent and/or Merger Sub or its Affiliates at such time (including Company Shares shares of Common Stock so accepted for payment payment); provided, however, that Parent shall be entitled to designate at least a majority of the directors on the Company Board as long as Parent and actually paid by Merger Sub pursuant to its Affiliates beneficially own a majority of the Offer) bears to shares of Common Stock of the total number of Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant to the OfferCompany. In furtherance thereof, the Company shall shall, upon request of Parent, promptly take all actions necessary to cause Parent’s designees to be so elected or appointed by the incumbent directors of the Company and each Subsidiary of the Company (as applicable) prior to the Company BoardAcceptance Time, including by increasing the number size of directors, and seeking and accepting the Company Board and/or securing the resignations of one or more incumbent directorsdirectors and/or filling any vacancies so created with Parent’s designees. Following the Acceptance Date and the payment by Merger Sub for At such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requesttime, the Company shall shall, upon request of Parent, also promptly take, and cause any incumbent directors of the Company and each Subsidiary of the Company (as applicable) prior to the Acceptance Time to take, all actions necessary to cause individuals designated by Parent to constitute at least the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each board of directors (or similar body) of each Subsidiary of the Company (including in the case of GWR Operating Partnership, L.L.L.P. taking any actions necessary to cause Parent’s designees to become “Continuing Directors” as such term is defined in the 2017 First Mortgage Indenture) and (iii) each committee thereof(or similar body) that represents of each such board, in each case, subject to applicable Law and, if applicable, the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority rules and regulations of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts to ensure that all of the members of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective TimeApplicable Exchange.

Directors. (a) Following Subject to the Acceptance Date terms of the Stockholder Agreement, dated September 19, 2001 (the “Company Stockholder Agreement”), among Xxxxxxx-Xxxxx Squibb Company and the Company, after the Purchaser accepts for payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies (the Minimum Condition“Acceptance Time”), subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ)at all times thereafter, Parent shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals as is equal to the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or designated by Parent pursuant to this Sectionsentence) and (ii) multiplied by the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment and actually paid by Merger Sub pursuant to Parent, the Offer) Purchaser or any of their respective affiliates bears to the total number of Shares then outstanding (including without limitation, in each case, any outstanding securities of the Company owned by Parent, the Purchaser or any of their respective affiliates that are convertible or exchangeable into or exercisable for Shares outstanding, and, upon Merger Sub’s request at any time following on an as-converted basis). After the purchase of and payment for Company Shares pursuant to the OfferAcceptance Time, the Company shall, upon Parent’s request, take all actions as are necessary or desirable to enable Parent’s designees to be so elected or designated to the Company Board, including but not limited to promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including without limitation by amending the Company Bylaws if necessary to increase the size of the Company Board) and/or promptly securing the resignations of such number of its incumbent directors, and shall cause Parent’s designees to be so elected or appointed designated at such time. Subject to the terms of the Company BoardStockholder Agreement, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following after the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s requestTime, the Company shall also also, upon Parent’s request, cause individuals the directors elected or designated by Parent to the Company Board to serve on and constitute the number of members, same percentage (rounded up to the next whole number, ) as is on the Company Board of (Ai) each committee of the Company Board and Board, (Bii) each the board of directors of each Company Subsidiary and (iii) each committee (or similar body) of each such board, in each case to the extent permitted by applicable Law and the Marketplace Rules of the Company Nasdaq Global Market (and each committee thereof) that represents “Nasdaq”). After the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use its commercially reasonable efforts also, upon Parent’s request, take all action necessary to ensure elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 4350(c) and make all necessary filings and disclosures associated with such status. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that all Parent, the Purchaser or any of their respective affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the members election of the Company Board and such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timedirectors or otherwise.

Directors. (a) Following Composition of Company Board. Effective upon the Acceptance Date and the initial acceptance for payment by Merger Sub for such number Acquiror of Company Ordinary Shares validly tendered and not properly withdrawn pursuant to the Offer (the “Acceptance Time,” the use of which term herein shall not, unless the context otherwise requires, depend upon whether Acquiror shall exercise its rights under this Section 1.03(a)) and from time to time thereafter, Acquiror shall be entitled to designate from time to time such number of members of the Company Board as satisfies the Minimum Conditionwill give Acquiror, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules Section 14(f) of the NASDAQ)Exchange Act and Rule 14f-1 thereunder, Parent shall be entitled representation equal to designate the at least that number of directors, rounded up to the next whole number, on the Company Board that equals is the product of (i) the total number of directors on the Company Board (giving effect to the election of any additional directors elected or appointed pursuant to this Sectionsentence) and multiplied by (ii) the percentage that (A) the number of Company Ordinary Shares beneficially owned by Parent and/or Merger Sub Acquiror and its Subsidiaries (including Company Ordinary Shares accepted for payment and actually paid by Merger Sub pursuant to the Offer) bears to (B) the total number of issued Company Shares outstanding, and, upon Merger Sub’s request at any time following the purchase of and payment for Company Shares pursuant Ordinary Shares. Subject to the Offerapplicable Legal Requirements, the Company shall cause Parent’s take all action requested by Acquiror necessary to effect any election or appointment pursuant to this Section 1.03, including (at the election of Acquiror) (x) subject to the Company Charter Documents, increasing the size of the Company Board, and (y) obtaining the resignation of such number of its current directors as is, in each case, necessary to enable such designees to be so elected or appointed to the Company Board, including by increasing the number of directors, and seeking and accepting resignations of incumbent directors. Following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum Condition, subject to Board in compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including including, to the extent applicable Marketplace Rules of prior to the NASDAQEffective Time, Rule 10A-3 under the Exchange Act), upon Merger Sub’s request. From time to time after the Acceptance Time, the Company shall also take all action necessary to cause the individuals so designated by Parent Acquiror to be directors on the Company Board to constitute substantially the number of members, rounded same percentage (rounding up to where appropriate) as is on the next whole number, Company Board on (A) each committee of the Company Board to the fullest extent permitted by all applicable Legal Requirements and (B) each board the rules of directors of each Subsidiary of the Company (Nasdaq, and each committee thereof) that represents the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basis, the Company shall use its commercially reasonable efforts take all action requested by Acquiror necessary to ensure that all of the members of the Company Board and effect any such committees and boards as of the date hereof who are not employees of the Company remain members of the Company Board and such committees and boards until the Effective Timeelection or appointment.

Directors. (a) Following the Acceptance Date Upon Purchaser accepting for payment and the payment by Merger Sub paying for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionCondition (the “Acceptance Time”), and at all times thereafter, subject to compliance with the Company’s certificate of incorporation Company Charter Documents, applicable Law and bylaws and applicable Legal Requirements (including the applicable Marketplace Listing Rules of the NASDAQ), Parent Purchaser shall be entitled to elect or designate the such number of directors, rounded up to the next whole number, on the Company Board that equals of Directors as is equal to the product of (i) the total number of directors on the Company Board of Directors (after giving effect to the election of any additional directors elected or designated by Purchaser pursuant to this Sectionsentence) and multiplied by (ii) the percentage that the aggregate number of Company Shares beneficially owned by Parent and/or Merger Sub (including Company Shares accepted for payment Parent, Purchaser and actually paid by Merger Sub pursuant to the Offer) any of their Affiliates bears to the total number of Shares then outstanding. The Company Shares outstanding, andshall, upon Merger SubPurchaser’s request at any time following the purchase of and payment for Company Shares pursuant to the Offer, take all such actions necessary and desirable to (I) appoint to the Company shall cause ParentBoard of Directors the individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including, but not limited to, promptly filling vacancies or newly created directorships on the Company Board of Directors, promptly increasing the size of the Company Board of Directors (including by amending the bylaws of the Company if necessary so as to increase the size of the Company Board of Directors) and/or promptly securing the resignations of such number of its incumbent directors as are necessary or desirable to enable Purchaser’s designees to be so elected or appointed designated to the Company Board, including by increasing the number Board of directorsDirectors, and seeking and accepting resignations of incumbent directors(II) cause Purchaser’s designees to be so appointed at such time. Following The Company shall, upon Purchaser’s request following the Acceptance Date and the payment by Merger Sub for such number of Company Shares validly tendered and not properly withdrawn pursuant to the Offer as satisfies the Minimum ConditionTime, subject to compliance with the Company’s certificate of incorporation and bylaws and applicable Legal Requirements (including the applicable Marketplace Rules of the NASDAQ), upon Merger Sub’s request, the Company shall also cause individuals Persons elected or designated by Parent Purchaser to constitute the number of members, same percentage (rounded up to the next whole number, ) as is on (A) the Company Board of Directors of each committee of the Company Board of Directors to the extent permitted by applicable Law and (B) each board of directors of each Subsidiary of the Company (NASDAQ Listing Rules. From and each committee thereof) that represents after the same percentage as such individuals represent on the Company Board. Notwithstanding the foregoing, until Parent and/or Merger Sub acquires a majority of the outstanding Company Shares on a fully-diluted basisAcceptance Time, the Company shall use its commercially reasonable efforts take all action necessary to ensure that elect to be treated as a “controlled company” as defined by NASDAQ Listing Rule 5615(c) and make all necessary filings and disclosures associated with such status. The Company’s obligations under this Section 1.3(a) shall be subject to Section 14(f) of the members Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including, not later than 10 calendar days prior to the Expiration Date, mailing to stockholders and filing with the SEC the information required by Section 14(f) and Rule 14f-1 as is necessary to enable Purchaser’s designees to be elected or designated to the Company Board of Directors (the “14(f) Information”). The Company may elect to either (i) mail the 14(f) Information to its stockholders and such committees file the 14(f) Information with the SEC together with the Schedule 14D-9 or (ii) mail the 14(f) Information to its stockholders and boards as file the 14(f) Information with the SEC separately from the mailing and filing of the date hereof who are not employees of Schedule 14D-9 (any such separate mailing and filing, being referred to as an “14(f) Information Statement”). Purchaser shall supply the Company remain members with information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and Affiliates to the extent required by Section 14(f) and Rule 14f-1. The provisions of this Section 1.3(a) are in addition to and shall not limit any rights that any of Purchaser, Parent or any of their respective Affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the Company Board and such committees and boards until the Effective Timeelection of directors or otherwise.