Common use of Xxxxx X Clause in Contracts

Xxxxx X. Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment as a Shareholders’ Agent. Parent shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination of the Earnout Amount pursuant to Section 3.2, (iii) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder.

Xxxxx X. Xxxx Xxxx-Xxxxx ---------------------------- Notary Public State of New York [Illegible] COMPANY STOCKHOLDERS POWER OF ATTORNEY AND IRREVOCABLE PROXY Reference is hereby made to that Certain Company Stockholders Voting Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this Company Stockholders Power of Attorney and Xxxxxx X. Xxx hereby each accepts his appointment as Irrevocable Proxy (this "IRREVOCABLE PROXY") forms a Shareholders’ Agentpart. Parent shall be entitled Capitalized terms used but not defined in this Irrevocable Proxy have the respective meanings ascribed to deal exclusively with such terms in the Shareholders’ Agents on all matters relating to Voting Agreement. This Irrevocable Proxy is being delivered by the undersigned Company Stockholder (ithe "GRANTING STOCKHOLDER") the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination 3.3 of the Earnout Amount pursuant to Section 3.2, (iii) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Voting Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder undersigned Granting Stockholder hereby irrevocably appoints Veeco Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers and other designees (each such Person, a "PROXYHOLDER") as Shareholder’s Agents while acting in good faith the Granting Stockholder's attorney-in-fact and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify proxy pursuant to the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part provisions of Section 212 of the Shareholders’ Agents Delaware General Corporation Law, with full power of substitution, in the Granting Stockholder's name, place and arising out of stead, to vote and otherwise act (by written consent or in connection otherwise) with the acceptance or administration respect to all of the Shareholders’ Agents’ duties hereunderCompany Shares now owned of record or Beneficially Owned by the Granting Stockholder and of which the Granting Stockholder may hereafter acquire record or Beneficial Ownership, including and any other securities, if any (the reasonable fees "OTHER SECURITIES"), which the Granting Stockholder is entitled to vote at any meeting of the stockholders of the Company (whether annual or special and expenses whether or not an adjourned or postponed meeting) or consent in lieu of any legal counsel such meeting or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder.otherwise:

Xxxxx X. Xxxx Xxxxxxxxxxx hereby agrees to unconditionally and Xxxxxx irrevocably, guarantee the due and punctual payment and performance of all Overadvances and further agrees and acknowledges that, in respect of that certain Guarantee, dated as of July 26, 2005 issued by Xxxxx X. Xxx hereby each accepts his appointment as a Shareholders’ Agent. Parent shall be entitled Xxxxxxxxxxx to deal exclusively with the Shareholders’ Agents on all matters relating to Laurus, (i) the determination of Final Working Capital pursuant defined term “Guaranteed Documents” as set forth therein is hereby amended to Section 3.1, include this Overadvance Side Letter and (ii) that for the avoidance of doubt, the defined term “Obligations” shall include the prompt and full payment when due, by acceleration or otherwise, of all sums now or any time hereafter due from Company to Laurus in connection with such Overadvances. The Company understands that the Company has an affirmative obligation to make prompt public disclosure of material agreements and material amendments to such agreements. It is the Company’s determination that neither this letter nor the terms and provisions of the Earnout Amount pursuant to Section 3.2this letter, (iii) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreementcollectively, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1Information”) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreementare material. The Shareholders’ Agents Company has had an opportunity to consult with counsel concerning this determination. The Company hereby agrees that Laurus shall not be responsible for in violation of any act done duty to the Company or omitted thereunder as Shareholder’s Agents its shareholders, nor shall Laurus be deemed to be misappropriating any information of the Company, if Laurus sells shares of common stock of the Company, or otherwise engages in transactions with respect to securities of the Company, while acting in good faith possession of the Information. If the foregoing meets with your approval please signify your acceptance of the terms hereof by signing below. LAURUS MASTER FUND, LTD. By:_/s/Xxxxx Grin Name: Title: Xxxxx Grin Director Agreed and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct accepted on the part date hereof: NATURADE, INC. By:/s/Xxxx Xxxxxxx Name: Xxxx Xxxxxxx Title: CEO Agreed and acknowledged as of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunderdate hereof: XXXXX X. XXXXXXXXXXX By: Xxxxx X. Xxxxxxxxxxx ANNEX A Overadvance Reduction Date Reduced Overadvance Amount January 3, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents2006 $ 325,000 February 1, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder.2006 $ 292,500 March 1, 2006 $ 260,000 April 3, 2006 $ 227,500 May 1, 2006 $ 195,000 June 1, 2006 $ 162,500 July 3, 2006 $ 130,000 August 1, 2006 $ 97,500 September 1, 2006 $ 65,000 October 2, 2006 $ 32,500 November 1, 2006 $ 0

Xxxxx X. Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment Xxxxx shall have the rights set forth herein to nominate all of the Company Directors (as a Shareholders’ Agent. Parent the number of Company Directors shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital reduced pursuant to Section 3.12.1(b)) only so long as he maintains Beneficial Ownership of at least 50% of the Common Stock Equivalents held by him as of the date of this Agreement and the Xxxxx Employment Agreement has not been terminated by the Company for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is the Chief Executive Officer of the Company he shall serve as a Director, (ii) the determination Xxxxxx Holders and the Northwood Holders each shall have the rights set forth herein to nominate the Series A, B and E Preferred Directors, and such Series A, B and E Preferred Directors shall have the right to nominate members of the Earnout Amount Committees described in Section 2.3 hereof, only so long as the Xxxxxx Holders or the Northwood Holders, as the case may be, maintain Beneficial Ownership in the aggregate of at least 50% of the Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to Section 3.2the First Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, and (iii) the resolution holders of a Majority of the Shares of Series C and D Preferred Stock shall have the rights set forth herein to nominate the Series C and D Preferred Directors and to designate the Chairman of the Board, and the Series C and D Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Qualifying Series C and D Beneficial Holders maintain Beneficial Ownership of at least 20% of the Series C and D Adjusted Fully Diluted Capitalization. If any of Xxxxx X. Xxxxx, the Xxxxxx Holders, the Northwood Holders or the Series C and D Holders loses its rights to designate Directors, the Directors which such Securityholder had been entitled to designate shall promptly resign and the vacancies created by such resignations shall be filled by the stockholders of the Company voting at a special or general meeting or by written consent in lieu of any disputes for such meeting at any time after the consummation of the transaction in which Parent may seek offset any such Person lost its rights to designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to Article 11 the preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be necessary or appropriate under the Company's bylaws and applicable law in order to remove such Directors and/or Committee members. The Directors designated by the stockholders of the Company shall appoint successor committee members to fill any vacancies then existing as a result of the resignations of the Directors referred to in the two preceding sentences (iv) other than any vacancy on the enforcement Executive Committee created by the failure of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and Xxxxx X. Xxxxx to serve thereon which shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by handled in the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to manner provided in Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder2.3(a)).

Xxxxx X. Xxxx Xxxxx Exhibit A: Release (Individual Termination) Exhibit B: Release (Group Termination) Exhibit C: Proprietary Information and Xxxxxx X. Xxx Inventions Agreement RELEASE (Individual Termination) Certain capitalized terms used in this Release are defined in the Executive Employment Agreement (the "Agreement") which I have executed and of which this Release is a part. I hereby each accepts confirm my obligations under the Company's proprietary information and inventions agreement. I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his appointment as a Shareholders’ Agent. Parent shall be entitled to deal exclusively favor at the time of executing the release, which if known by him must have materially affected his settlement with the Shareholders’ Agents on debtor." I hereby expressly waive and relinquish all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination of the Earnout Amount pursuant to Section 3.2, (iii) the resolution rights and benefits under that section and any law of any disputes for which Parent may seek offset pursuant jurisdiction of similar effect with respect to Article 11 and (iv) the enforcement my release of any rights the Holders claims I may have against Parent or the Surviving Entity Company. Except as otherwise set forth in this Release, in consideration of benefits I will receive under this the Agreement, I hereby release, acquit and shall be entitled to rely conclusively forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys' fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (without further evidence other than any claim for indemnification I may have as a result of any kind whatsoever) third party action against me based on any document executed or purported to be executed on behalf of any Holder by my employment with the Shareholders’ AgentsCompany), and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection any way related to agreements, events, acts or conduct at any time prior to and including the date I execute this Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the acceptance Company or administration the termination of that employment, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal Employee Retirement Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the California Fair Employment and Housing Act, as amended; tort law; contract law; statutory law; common law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and breach of the Shareholders’ Agents’ duties hereunderimplied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any way to release the Company from its obligation to indemnify me pursuant to the Company's indemnification obligation pursuant to agreement or applicable law. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the ADEA, that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have twenty-one (21) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the execution of this Release by the parties to revoke the Release; and (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth (8th) day after this Release is executed by me. Xxxxx X. Xxxxx Date:_______________________ Exhibit B RELEASE (Group Termination) Certain capitalized terms used in this Release are defined in the Executive Employment Agreement (the "Agreement") which I have executed and of which this Release is a part. I hereby confirm my obligations under the Company's proprietary information and inventions agreement. I acknowledge that I have read and understand Section 1542 of the California Civil Code which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." I hereby expressly waive and relinquish all rights and benefits under that section and any law of any jurisdiction of similar effect with respect to my release of any claims I may have against the Company. Except as otherwise set forth in this Release, in consideration of benefits I will receive under the Agreement, I hereby release, acquit and forever discharge the Company, its parents and subsidiaries, and their officers, directors, agents, servants, employees, shareholders, successors, assigns and affiliates, of and from any and all claims, liabilities, demands, causes of action, costs, expenses, attorneys' fees, damages, indemnities and obligations of every kind and nature, in law, equity, or otherwise, known and unknown, suspected and unsuspected, disclosed and undisclosed (other than any claim for indemnification I may have as a result of any third party action against me based on my employment with the Company), arising out of or in any way related to agreements, events, acts or conduct at any time prior to and including the date I execute this Release, including, but not limited to: all such claims and demands directly or indirectly arising out of or in any way connected with my employment with the Company or the termination of that employment, including but not limited to, claims of intentional and negligent infliction of emotional distress, any and all tort claims for personal injury, claims or demands related to salary, bonuses, commissions, stock, stock options, or any other ownership interests in the reasonable fees Company, vacation pay, fringe benefits, expense reimbursements, severance pay, or any other form of compensation; claims pursuant to any federal, state or local law or cause of action including, but not limited to, the federal Civil Rights Act of 1964, as amended; the federal Age Discrimination in Employment Act of 1967, as amended ("ADEA"); the federal Employee Retirement Income Security Act of 1974, as amended; the federal Americans with Disabilities Act of 1990; the California Fair Employment and expenses Housing Act, as amended; tort law; contract law; statutory law; common law; wrongful discharge; discrimination; fraud; defamation; emotional distress; and breach of the implied covenant of good faith and fair dealing; provided, however, that nothing in this paragraph shall be construed in any legal counsel way to release the Company from its obligation to indemnify me pursuant to the Company's indemnification obligation pursuant to agreement or other professional retained applicable law. I acknowledge that I am knowingly and voluntarily waiving and releasing any rights I may have under ADEA. I also acknowledge that the consideration given under the Agreement for the waiver and release in the preceding paragraph hereof is in addition to anything of value to which I was already entitled. I further acknowledge that I have been advised by this writing, as required by the Shareholders’ AgentsADEA, in connection that: (A) my waiver and release do not apply to any rights or claims that may arise on or after the date I execute this Release; (B) I have the right to consult with an attorney prior to executing this Release; (C) I have forty-five (45) days to consider this Release (although I may choose to voluntarily execute this Release earlier); (D) I have seven (7) days following the acceptance execution of this Release by the parties to revoke the Release; (E) this Release shall not be effective until the date upon which the revocation period has expired, which shall be the eighth day (8th) after this Release is executed by me; and administration (F) I have received with this Release a detailed list of the Shareholders’ Agents’ duties hereunder.job titles and ages of all employees who were terminated in this group termination and the ages of all employees of the Company in the same job classification or organizational unit who were not terminated. Xxxxx X. Xxxxx Date:________________________ Exhibit C

Xxxxx X. Xxxx (“Executive”), for himself and Xxxxxx X. Xxx his family, heirs, executors, administrators, legal representatives and their respective successors and assigns, in exchange for the consideration received under the Employment Agreement to which this release is attached as Exhibit A (the “Employment Agreement”), does hereby each accepts his appointment release and forever discharge WCI Communities Management, LLC, a Delaware limited liability company (the “Employer”), its parent WCI Communities, Inc., a Delaware corporation (“Parent”), WCI Communities, LLC, a Delaware limited liability company (collectively with the Employer and Parent, the “Company”) its subsidiaries, affiliated companies, successors and assigns, and its current or former directors, officers or shareholders in such capacities (collectively with the Company, the “Released Parties”) from any and all actions, causes of action, suits, controversies, claims and demands whatsoever, for or by reason of any matter, cause or thing whatsoever, whether known or unknown including, but not limited to, all claims under any applicable laws arising under or in connection with Executive’s employment or termination thereof, whether for tort, breach of express or implied employment contract, wrongful discharge, intentional infliction of emotional distress, or defamation or injuries incurred on the job or incurred as a Shareholders’ Agentresult of loss of employment. Parent Executive acknowledges that the Company encouraged him to consult with an attorney of his choosing, and through this General Release of Claims encourages him to consult with his attorney with respect to possible claims under the Age Discrimination in Employment Act (“ADEA”) and that he understands that the ADEA is a Federal statute that, among other things, prohibits discrimination on the basis of age in employment and employee benefits and benefit plans. Without limiting the generality of the release provided above, Executive expressly waives any and all claims under ADEA that he may have as of the date hereof. Executive further understands that by signing this General Release of Claims he is in fact waiving, releasing and forever giving up any claim under the ADEA as well as all other laws within the scope of this paragraph 1 that may have existed on or prior to the date hereof. Notwithstanding anything in this paragraph 1 to the contrary, this General Release of Claims shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating not apply to (i) any rights to receive any payments or benefits due after the determination date this General Release of Final Working Capital pursuant Claims is executed to Section 3.1which Executive is entitled under COBRA, the Employment Agreement or any other compensation or employee benefit plans in which Executive is eligible to participate at the time of execution of this General Release of Claims, (ii) any rights or claims that may arise as a result of events occurring after the determination date this General Release of Claims is executed, any indemnification and advancement rights Executive may have as a former employee, officer or director of the Earnout Amount Company or its subsidiaries or affiliated companies including, without limitation, any rights arising pursuant to Section 3.2the articles of incorporation, (iii) bylaws and any other organizational documents of the resolution Company or any of its subsidiaries, the Indemnification Agreement between the Company and Executive dated as of November 5, 2013, as may be amended from time to time or any disputes for which Parent may seek offset pursuant to Article 11 and other similar arrangement or agreement (iv) any claims for benefits under any directors’ and officers’ liability policy maintained by the enforcement Company or its subsidiaries or affiliated companies in accordance with the terms of such policy, and (v) any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence as a holder of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one equity securities of the Shareholders’ Agents shall dieCompany (clauses (i) through (v), become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunderReserved Claims”).

Xxxxx X. Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment Xxxxx shall have the rights set forth herein to nominate all of the Company Directors (as a Shareholders’ Agent. Parent the number of Company Directors shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital reduced pursuant to Section 3.12.1(b)) only so long as he maintains Beneficial Ownership of at least 50% of the Common Stock Equivalents held by him as of the date of this Agreement and the Xxxxx Employment Agreement has not been terminated by the Company for Cause (as defined therein); provided, however, that so long as Xxxxx X. Xxxxx is the -------- ------- Chief Executive Officer of the Company he shall serve as a Director, (ii) the determination Xxxxxx Holders and the Northwood Holders each shall have the rights set forth herein to nominate the Series A and Series B Preferred Directors, and Series A and Series B Preferred Directors shall have the right to nominate members of the Earnout Amount Committees described in Section 2.3 hereof, only so long as the Xxxxxx Holders or the Northwood Holders, as the case may be, maintain Beneficial Ownership in the aggregate of at least 50% of the Common Stock Equivalents (excluding Warrant Shares) initially acquired by it pursuant to Section 3.2the First Series A Stock Purchase Agreement and the Second Series A Stock Purchase Agreement, and (iii) the resolution holders of a Majority of the Shares of Series C Preferred Stock shall have the rights set forth herein to nominate the Series C Preferred Directors and to designate the Chairman of the Board, and the Series C Preferred Directors shall have the right to nominate members of the Committees described in Section 2.3 hereof, only so long as the Qualifying Series C Beneficial Holders maintain Beneficial Ownership of at least 20% of the Series C Adjusted Fully Diluted Capitalization. If any disputes for of Xxxxx X. Xxxxx, the Xxxxxx Holders, the Northwood Holders or the Series C Holders loses its rights to designate Directors, the Directors which Parent may seek offset such Securityholder was entitled to designate shall promptly resign and the vacancies created by such resignations shall be filled by the stockholders of the Company voting at a meeting or by written consent at any time after the consummation of the transaction in which any such Person lost its rights to designate Directors. If any Directors or Committee members who are required to resign such positions pursuant to Article 11 the preceding sentences fail to promptly tender their written resignations, the stockholders and the remaining Directors shall promptly take such steps as may be necessary or appropriate under the Company's bylaws and applicable law in order to remove such Directors and/or Committee members. The Directors designated by the stockholders of the Company shall appoint successor committee members to fill any vacancies then existing as a result of the resignations of the Directors referred to in the two preceding sentences (iv) other than any vacancy on the enforcement Executive Committee created by the failure of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and Xxxxx X. Xxxxx to serve thereon which shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by handled in the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to manner provided in Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder2.3(a)).

Xxxxx X. Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment Xxxxx may continue to serve as a Shareholders’ Agent. director of the Company and (y) 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 nor designees, stockholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent (such directors, the "Independent Directors"); provided further, that if at any time or from time to -------- ------- time fewer than three Independent Directors remain, the other directors shall elect to the Board of Directors such number of persons who shall be entitled neither officers of the Company nor designees, shareholders, affiliates or associates of Parent so that the total of such persons and remaining Independent Directors serving on the Board of Directors is at least three. Any such person elected to deal exclusively with the Shareholders’ Agents on 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 matters relating to (i) the determination of Final Working Capital action necessary pursuant to Section 3.1, (ii14(f) the determination of the Earnout Amount 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 3.2, (iii14(f) the resolution of any disputes for which Parent may seek offset pursuant and Rule 14f-1 in order to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity fulfill its obligations under this AgreementSection 1.3. Parent will supply the Company any information with respect to itself and its nominees, officers, directors and shall be entitled affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding anything in this Agreement to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder the contrary, following the time directors designated by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one Parent constitute a majority of the Shareholders’ Agents shall dieBoard of Directors and prior to the Effective Time, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders affirmative vote of a majority of the shares Independent Directors shall be required to (i) amend or terminate on behalf of the Company Preferred this Agreement, the Company Stock and Company Common Stock Option Agreement or the Termination Agreement, dated as of immediately prior to the Effective Time of Merger Idate hereof, shallamong the Company, within ten Xxxxxx and Xxxxxx X. Xxxxxx (10ii) calendar days after such death exercise or disability, appoint a successor agent and, promptly thereafter, shall notify Parent waive any of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1Company's rights or remedies hereunder or thereunder, (2iii) extend the determination time for performance of the Earnout Amount pursuant Parent's or Purchaser's obligations hereunder or thereunder or (iv) take any other action required to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained taken by the Shareholders’ Agents, in connection with the acceptance and administration Board of the Shareholders’ Agents’ duties hereunderDirectors hereunder or thereunder.

Xxxxx X. Xxxx Xxxxx and Xxxxxx X. Xxx hereby each accepts his appointment as officer of the Company has agreed in writing that such person will not, for a Shareholders’ Agent. Parent shall be entitled period of 30 months from the date that the Registration Statement is declared effective by the Commission (the "Lock-up Period"), offer to deal exclusively sell, contract to sell, or otherwise sell, dispose of, loan, or grant any rights with respect to (collectively, a "Disposition") any shares of Common Stock, any options or warrants to purchase any shares of Common Stock or any securities convertible into, exercisable for or exchangeable for shares of Common Stock (collectively, "Securities") now owned or hereafter acquired directly by such person or any affiliate or with respect to which such person has or hereafter acquires the Shareholders’ Agents on all matters relating to power of Disposition, otherwise than (i) as a bona fide gift or gifts, provided the determination of Final Working Capital pursuant donee or donees thereof agree in writing to Section 3.1be bound by this restriction, (ii) as a distribution to partners or shareholders of such person, provided that the determination distributees thereof agree in writing to be bound by the terms of the Earnout Amount pursuant to Section 3.2this restriction, (iii) the resolution of any disputes for which Parent may seek offset pursuant with respect to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled up to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity 85% of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ AgentsSecurities, in connection with pledges to secure obligations for borrowed money, or (iv) with the acceptance and administration prior written consent of Xxxxxxxxx, Xxxxxxxx & Company LLC; provided, that after the expiration of the Shareholders’ Agents’ duties hereunder18-month period following the effective date of the Registration Statement, the Disposition of up to 50% of the Securities held by such persons shall be permitted. The foregoing restriction has been expressly agreed to preclude the holder of the Securities from engaging in any hedging or other transaction which is designed to or reasonably expected to lead to or result in a Disposition of Securities during the Lock-up Period, even if such Securities would be disposed of by someone other than such holder. Such prohibited hedging or other transactions would include, without limitation, any short sale (whether or not against the box) or any purchase, sale or grant of any right (including, without limitation, any put or call option) with respect to any Securities or with respect to any security (other than a broad-based market basket or index) that includes, relates to or derives any significant part of its value from Securities. Furthermore, such person has also agreed and consented to the entry of stop transfer instructions with the Company's transfer agent against the transfer of the Securities held by such person except in compliance with this restriction. The Company has provided to counsel for the Underwriters a complete and accurate list of all securityholders of the Company and the number and type of securities held by each securityholder. The Company has provided to counsel for the Underwriters true, accurate and complete copies of all of the agreements pursuant to which Xx. Xxxxx and the Company's officers have agreed to such or similar restrictions (the "Lock-up Agreements") presently in effect or effected hereby. The Company hereby represents and warrants that it will not release any of its officers or Xx. Xxxxx from any Lock-up Agreements currently existing or hereafter effected without the prior written consent of Xxxxxxxxx, Xxxxxxxx & Company LLC.

Xxxxx X. Xxxx, B. Xxxxx Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment as a Shareholders’ AgentXxXxxx (such members, the “Crimson Directors”). Parent Until the first anniversary of the Effective Time, the Board of Directors shall take all requisite action to cause the Board of Directors to be comprised of the five Contango Directors and the three Crimson Directors; provided, however, that, during such period, at least three of the Contango Directors and at least two of the Crimson Directors shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination of the Earnout Amount pursuant to Section 3.2, (iii) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” independent for purposes of the rules of the New York Stock Exchange. If, at any time until the first anniversary of the Effective Time, the number of Crimson Directors and Contango Directors serving, or that would be serving following the next stockholders’ meeting at which directors are to be elected, as directors of the Corporation, would not be as set forth above, then, subject to the fiduciary duties of the directors of the Corporation, the Board of Directors (1and any nominating committee thereof) shall appoint, and nominate for election at the determination next stockholders’ meeting at which directors are to be elected, such person or persons as may be requested by the remaining Crimson Directors (if the number of Final Working Capital Crimson Directors is, or would otherwise become, less than three) (and such person or persons, “Crimson Directors”) or by the remaining Contango Directors (if the number of Contango Directors is, or would otherwise become, less than five) (and such person or persons, “Contango Directors”) to ensure that there will be five Contango Directors and three Crimson Directors. For purposes of these Bylaws, the “Effective Time” means the date and time of the filing with the Secretary of State of the State of Delaware of the Certificate of Merger consummating the merger of Contango Acquisition, Inc., a Delaware corporation and wholly-owned subsidiary of the Corporation, with and into Crimson, pursuant to Section 3.1, (2) the determination terms and conditions of the Earnout Amount pursuant to Section 3.2Agreement and Plan of Merger dated as of April [—], (3) 2013, among the resolution of any disputes for which Parent may seek offset pursuant to Article 11 Corporation, Crimson and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any lossContango Acquisition, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder.Inc.

Xxxxx X. Xxxx Xxxxxxx, a director and Executive Vice President and Chief Operating Officer of the Company, beneficially owns 2,742 outstanding Shares, (c) Xxxxx X. Xxxxxx, a director and General Counsel of the Company, beneficially owns 10,600 outstanding Shares, (d) Xxxxxxx X. Xxxxxxxxx, a director of the Company, beneficially owns 9,800 outstanding Shares, (e) Xxxxxx X. Xxx hereby each accepts his appointment as Xxxxxxxxxx, a Shareholders’ Agent. Parent shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination director of the Earnout Amount pursuant to Section 3.2Company, (iii) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 beneficially owns 13,650 outstanding Shares, and (ivf) Xx. Xxx X. Sterling, a director of the enforcement Company, beneficially owns 13,100 outstanding Shares. Pursuant to the Voting Agreements, upon the terms and subject to the conditions therein, each Proxy Grantor has agreed, provided the Merger Agreement has not been terminated, to promptly tender to Purchaser all Shares beneficially owned by such Proxy Grantor, has agreed to vote such Shares in favor of approval of the Merger Agreement and the transactions contemplated thereby and has granted an irrevocable proxy to Purchaser with respect to such Shares. Each holder (other than holders of Excluded Shares) of a certificate evidencing any Shares will, from and after the effective time of the Merger, cease to have any rights with respect to such Shares, except the Holders may have against Parent or right to receive the Surviving Entity under this AgreementOffer Price. From and after the consummation of the Merger, each Excluded Share will be canceled and extinguished and cease to exist without any conversion thereof, and shall no payment will be entitled to rely conclusively made with respect thereto. DEUTSCHE BANK SECURITIES INC. (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents"DEUTSCHE BANK"), and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ AgentsFINANCIAL ADVISOR TO THE COMPANY, as fully binding upon such HolderHAS DELIVERED A WRITTEN OPINION TO THE BOARD, DATED JULY 26, 1999 (THE "DEUTSCHE BANK OPINION"), TO THE EFFECT THAT, AS OF THAT DATE, THE CONSIDERATION TO BE RECEIVED BY THE HOLDERS OF COMPANY COMMON STOCK PURSUANT TO THE MERGER AGREEMENT WAS FAIR FROM A FINANCIAL POINT OF VIEW. If one of the Shareholders’ Agents shall dieTHE FULL TEXT OF THE DEUTSCHE BANK OPINION IS ATTACHED TO THE COMPANY'S SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 WHICH IS BEING MAILED TO STOCKHOLDERS OF THE COMPANY HEREWITH. STOCKHOLDERS ARE URGED TO READ SUCH OPINION CAREFULLY AND IN ITS ENTIRETY FOR ASSUMPTIONS MADE, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of MATTERS CONSIDERED AND LIMITS OF THE REVIEW OF DEUTSCHE BANK. The Company Preferred Stock and Company Common Stock has informed Purchaser that as of immediately July 21, 1999 there were 8,995,515 Shares issued and outstanding and outstanding options to purchase 1,499,557 additional Shares. The Minimum Condition should therefore be satisfied if at least approximately 5,247,536 Shares are validly tendered and not withdrawn prior to the Effective Time of Merger IExpiration Date (up to 751,272 Shares will be tendered to Purchaser pursuant to the Voting Agreements). THE OFFER DOES NOT CONSTITUTE A SOLICITATION OF PROXIES FOR ANY MEETING OF THE COMPANY'S STOCKHOLDERS. ANY SUCH SOLICITATION WOULD BE MADE ONLY PURSUANT TO SEPARATE PROXY MATERIALS COMPLYING WITH THE REQUIREMENTS OF SECTION 14(a) OF THE SECURITIES EXCHANGE ACT OF 1934, shallAS AMENDED (THE "EXCHANGE ACT"). Tendering stockholders will not be obligated to pay brokerage commissions, within ten (10) calendar days after such death or disabilitysolicitation fees or, appoint a successor agent and, promptly thereafter, shall notify Parent subject to Instruction 6 of the identity Letter of such successorTransmittal, stock transfer taxes on the purchase of Shares pursuant to the Offer. Any such successor shall become one However, any tendering stockholder or other payee who fails to complete and sign the Substitute Form W-9 that is included in the Letter of Transmittal may be subject to a required backup federal income tax withholding of 31% of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital gross proceeds payable to such stockholder or other payee pursuant to Section 3.1the Offer. See "THE TENDER OFFER--5. Certain Federal Income Tax Consequences." Purchaser will pay all charges and expenses of Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated (2) "Xxxxxxx Xxxxx"), as Dealer Manager (in such capacity, the determination of "Dealer Manager"), BankBoston, N.A., as Depositary (in such capacity, the Earnout Amount pursuant to Section 3.2"Depositary"), and Xxxxxxxxx Shareholders Communications Inc., as Information Agent (3) in such capacity, the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss"Information Agent"), liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration Offer. For a description of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained to be paid by Purchaser, see "THE TENDER OFFER--20. Fees and Expenses." The information contained in this Offer to Purchase concerning the Company was supplied by the Shareholders’ AgentsCompany. None of Ocean Group, Parent, Purchaser, the Dealer Manager, the Depositary or the Information Agent takes any responsibility for the completeness or accuracy of such information. The information contained in connection with this Offer to Purchase concerning the acceptance Offer, the Merger, Ocean Group, Parent and administration Purchaser was supplied by Ocean Group, Parent and Purchaser. The Company takes no responsibility for the completeness or accuracy of such information. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION WHICH SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE OFFER. ALSO SEE "THE TENDER OFFER--21. MISCELLANEOUS" FOR INFORMATION REGARDING CERTAIN ADDITIONAL DOCUMENTS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION") IN CONNECTION WITH THE OFFER. References herein to Ocean Group will, unless the Shareholders’ Agents’ duties hereunder.context indicates otherwise, include Ocean Group and all of its subsidiaries, including Parent and Purchaser. THE TENDER OFFER

Xxxxx X. Xxxx Xxxxxxx, who is our Chairman and Chief Executive Officer, and his father, Xx. Xxxxxx X. Xxx hereby each accepts his appointment Xxxxxxx, Jr., beneficially own, directly or indirectly, 100% of Remington. We encourage you to read the accompanying proxy statement/prospectus carefully as a Shareholders’ Agentit sets forth the specifics of the Combination Agreement and certain other Transaction Documents, the Transactions and other important information, including the section entitled ‘‘Risk Factors’’ beginning on page 28. Parent shall be Regardless of the number of shares of the Company’s common stock that you own, your vote is important. As of September 18, 2019, the Bennetts beneficially owned or controlled approximately 48.6% of the outstanding voting common stock of the Company (which includes the Series B Convertible Preferred Stock owned by the Bennetts which is entitled to deal exclusively with vote alongside the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1, (ii) the determination voting common stock of the Earnout Amount pursuant Company on an as-converted basis, subject to Section 3.2, the provisions of the Existing IRA (iiidescribed further below)). The Existing IRA generally provides that to the extent that the voting power of the voting securities beneficially owned by the Bennetts (and certain other holders) exceeds 25% of the resolution combined voting power of any disputes for which Parent may seek offset pursuant to Article 11 and (iv) all of the enforcement outstanding voting securities of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be Company entitled to rely conclusively (without further evidence of any kind whatsoever) vote on any document executed or purported to be executed on behalf given matter (the shares with voting power in excess of any Holder by such 25%, the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders‘‘Existing IRA Excess Shares’’), then the Holders Bennetts (and such other holders) will vote shares with a voting power equal to the voting power of the Existing IRA Excess Shares in the same proportion as the holders of voting securities of the Company vote their shares with respect to such matters, inclusive of the Existing IRA Reference Shares (as defined below) voted by the Xxxxxxxx (and such other holders). The Bennetts have informed the Company that they intend to vote or cause to be voted such common stock and Series B Convertible Preferred Stock in favor of the Transaction Proposal. In addition, a majority committee of independent directors of each of Braemar and Ashford Trust, respectively, who are independent within the meaning of applicable rules of the NYSE American and do not have a material financial interest within the meaning of Section 2-419 of the MGCL in the Merger and the other Transactions, has informed us that, as of the date of this proxy statement/prospectus, each of Braemar and Ashford Trust, acting at the direction of such respective committee, intends to vote or cause to be voted all of the shares beneficially owned by it in favor of each proposal presented to the stockholders at the Special Meeting. Braemar and Ashford Trust collectively own 793,043 shares of common stock of the Company Preferred Stock and Company Common Stock as of immediately prior to the Effective Time of Merger ISeptember 18, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder2019.

Xxxxx X. Xxxx Xxxxxxx owns FLX, and Xxxxxx X. Xxx hereby each accepts his appointment thus Parent and the Purchaser, and will become, indirectly, the owner of all Shares acquired by the Purchaser through the Offer. Xx. Xxxxxxx is also the chairman of the Board of Directors of the Company (the "Company Board"). As a result of Xx. Xxxxxxx'x dual status, the Company Board appointed a special committee of independent directors (the "Special Committee") to consider FLX's proposal to make the Offer and accomplish the Merger. See BACKGROUND OF THE OFFER, below. AFTER RECEIVING THE REPORT OF THE SPECIAL COMMITTEE THE COMPANY BOARD HAS UNANIMOUSLY APPROVED THE MERGER AGREEMENT AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE OFFER AND THE MERGER, AND HAS DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE HOLDERS OF SHARES AND UNANIMOUSLY RECOMMENDS THAT THE COMPANY'S SHAREHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES PURSUANT THERETO. Bear, Xxxxxxx & Co. Inc. ("Bear Xxxxxxx") has delivered to the Special Committee its opinion, dated as of May 19, 2000 (the "Fairness Opinion"), to the effect that, as of such date and based upon and subject to certain matters stated therein, the consideration to be received by the holders of Shares (other than FLX and its affiliates) pursuant to the Offer and the Merger is fair from a Shareholders’ Agentfinancial point of view to such holders. Parent shall be entitled to deal exclusively with The full text of the Shareholders’ Agents on all matters relating to Fairness Opinion is attached as Exhibit A hereto. Holders of Shares are urged to, and should, read the Fairness Opinion carefully in its entirety. The Company has informed Purchaser that, as of May 15, 2000, there were (i) the determination of Final Working Capital pursuant to Section 3.117,058,833 Shares issued and outstanding, (ii) 3,015,764 Shares held in the determination treasury of the Earnout Amount pursuant to Section 3.2Company, and (iii) the resolution of any disputes for which Parent may seek offset 1,099,664 Shares issuable pursuant to Article 11 the exercise of options. The Merger Agreement provides, among other things, that the Company will not, without the prior written consent of Parent, issue any additional Shares (except upon the exercise of outstanding options). FLX presently owns 4,501,310 Shares, which it will contribute to Purchaser. Based on the foregoing, Xxxxxxxxx believes that the Minimum Condition will be satisfied (assuming that the number of Shares outstanding on the expiration of the Offer and (ivon May 15, 2000 are the same) if 6,265,285 Shares are validly tendered and not withdrawn prior to the enforcement expiration of any rights the Holders may have against Parent or Offer. Consummation of the Surviving Entity under this Merger is conditioned upon, among other things, the approval and adoption by the requisite vote of shareholders of the Company of the Merger Agreement, if required by applicable law and shall be entitled the Company's Articles of Incorporation (the "Articles of Incorporation"). See PLANS FOR THE COMPANY; OTHER MATTERS, below. Under the HBCA and pursuant to rely conclusively (without further evidence the Articles of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by Incorporation, the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one affirmative vote of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders holders of a simple majority of the outstanding Shares is the only vote of any class or series of the Company's capital stock that is required to approve the Merger Agreement and the Merger. If the Purchaser owns at least 90% of the outstanding Shares, Purchaser and Parent may effect a "short-form" merger, described below, for which no shareholder vote is required. Under Section 415-75.5 of the HBCA, if a corporation owns at least 90% of the outstanding shares of Company Preferred Stock and Company Common Stock as each class of immediately prior to two or more subsidiary corporations, the Effective Time of Merger Icorporation holding such stock may merge such subsidiaries together, shall, within ten (10) calendar days after such death without any action or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one of the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct vote on the part of the Shareholders’ Agents and arising boards of directors or the shareholders of either corporation (a "short-form merger"). In the event that Purchaser acquires in the aggregate at least 90% of the outstanding Shares, pursuant to the Offer or otherwise, then, at the election of Parent, a short-form merger could be effected without any further approval of the Company Board or the shareholders of the Company. If Purchaser does not own 90% of the outstanding Shares following consummation of the Offer, Parent or Purchaser could (i) seek to purchase additional Shares in the open market or otherwise in order to reach the 90% threshold, permitting Parent to carry out of a short-form merger, or in connection (ii) choose to proceed with the acceptance "long-form merger" described above. If Purchaser chooses to purchase additional Shares on the open market in order to reach the 90% threshold, the per Share consideration paid for any Shares so acquired may be greater or administration of less than the Shareholders’ Agents’ duties hereunderOffer Price. Parent presently intends to carry out a short-form merger, including if permitted to do so under the reasonable fees HBCA, pursuant to which the Purchaser will be merged with and expenses of any legal counsel or other professional retained by the Shareholders’ Agentsinto Company. See PLANS FOR THE COMPANY; OTHER MATTERS, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunderbelow. THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN IMPORTANT INFORMATION AND YOU SHOULD READ THEM IN THEIR ENTIRETY BEFORE YOU MAKE A DECISION WITH RESPECT TO THE OFFER.

Xxxxx X. Xxxxxx Xxxxxxx X. XxXxxxxx Xxxxxx Xxxxxx, MD Xxxx and Xxxxxxxxx Xxxxxx X. Xxxxxxxxxxx Ph.D. Xxxxxxx X. Xxxxxxx SCHEDULE III Issuer Free Writing Prospectus None SCHEDULE IV Pricing Information Size: 5,000,000 shares of common stock Over-allotment option: 750,000 additional shares of common stock Public offering price: $7.00 per share Net proceeds (excluding the over-allotment): $33,000,000 (after deducting the underwriters’ discounts and commissions and estimated offering expenses payable by the Company) Exhibit A FORM OF LOCK-UP AGREEMENT June , 2009 Xxxxxxxxxxx & Co. Inc. c/o Oppenheimer & Co. Inc. 000 Xxxxxxx Xxxxxx Xxx hereby each accepts his appointment Xxxx, Xxx Xxxx 00000 Re: Public Offering of ImmunoGen, Inc. Ladies and Gentlemen: The undersigned, a holder of common stock, par value $.01 (“Common Stock”), or rights to acquire Common Stock, of ImmunoGen, Inc. (the “Company”) understands that you, as a Shareholders’ Agent. Parent shall be entitled Representative of the Underwriter(s), propose to deal exclusively enter into an Underwriting Agreement (the “Underwriting Agreement”) with the Shareholders’ Agents Company, providing for the public offering (the “Public Offering”) by the Underwriter(s) named in Schedule I to the Underwriting Agreement (the “Underwriter(s)”), of shares of Common Stock of the Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Underwriting Agreement. In consideration of the agreement by the Underwriter(s) to enter into the Underwriting Agreement and to proceed with the Public Offering of the Securities, and for other good and valuable consideration receipt of which is hereby acknowledged, the undersigned hereby agrees for the benefit of the Company, you and the Underwriter(s) that, without the prior written consent of Xxxxxxxxxxx & Co. Inc. on all matters behalf of the Underwriter(s), the undersigned will not, during the period ending 90 days after the date of the final prospectus (the “Lock-Up Period”) relating to the Public Offering (the “Prospectus”), directly or indirectly (1) offer, pledge, assign, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, or otherwise transfer or dispose of, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock owned either of record or beneficially (as defined in the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) by the undersigned on the date hereof or hereafter acquired or (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; or publicly announce an intention to do any of the foregoing. In addition, the undersigned agrees that, without the prior written consent of Xxxxxxxxxxx & Co. Inc. on behalf of the Underwriter(s), it will not, during the Lock-Up Period, make any demand for or exercise any right with respect to, the registration of any shares of Common Stock or any security convertible into or exercisable or exchangeable for Common Stock. The foregoing shall not apply to (i) the determination transfers of Final Working Capital pursuant to Section 3.1Common Stock as a bona fide gift or gifts, (ii) transfers to any trust for the determination direct or indirect benefit of the Earnout Amount pursuant to Section 3.2undersigned or the immediate family of the undersigned; provided that any such transfer shall not involve a disposition for value, or (iii) transfers by will or intestate succession; provided, however, that (A) each donee, transferee or distribute under clause (i), (ii) or (iii) shall execute and deliver a letter substantially in the resolution form hereof agreeing to be bound by the terms hereof and (B) neither the undersigned nor any other party to the applicable transaction under clause (i), (ii) or (iii), shall be required to file, or voluntarily file, a report under Section 16(a) of any disputes for which Parent may seek offset pursuant to Article 11 and the Exchange Act, other than a filing on Form 5 made after the expiration of the Lock-Up Period, (iv) the enforcement sale of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported Securities to be executed sold pursuant to the Prospectus, (v) the establishment or modification of a trading plan that complies with Rule 10b5-1 promulgated under the Exchange Act; provided that no sales are made pursuant to such trading plan during the Lock-Up Period and (vi) the sale of Common Stock or other securities by or on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported undersigned pursuant to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately trading plan established prior to the Effective Time date of Merger Ithis Letter Agreement that complies with Rule 10b5-1 promulgated under the Exchange Act; provided that no modification is made to the formula, shallalgorithm or computer program with respect to such trading plan during the Lock-Up Period. For purposes of this Letter Agreement, within ten the term “immediate family” shall mean any relationship by blood, marriage or adoption, not more remote than first cousin. Notwithstanding the foregoing, if (10x) calendar during the last 17 days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity of such successor. Any such successor shall become one Lock-Up Period the Company issues an earnings release or material news or a material event relating to the Company occurs; or (y) prior to the expiration of the “Shareholders’ Agents” for purposes of (1) Lock-Up Period, the determination of Final Working Capital pursuant to Section 3.1, (2) Company announces that it will release earnings results during the determination 16-day period beginning on the last day of the Earnout Amount pursuant Lock-Up Period; the restrictions imposed in this Letter Agreement shall continue to Section 3.2, (3) apply until the resolution expiration of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement 18-day period beginning on the issuance of any rights the Holders may have against Parent earnings release or the Surviving Entity occurrence of the material news or material event; provided, however, that this sentence shall not apply if the research published or distributed on the Company is compliant under Rule 139 of the Securities Act of 1933, as amended, and the Company’s securities are actively traded as defined in Rule 101(c)(1) of Regulation M of the Exchange Act. In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the registration or transfer of the securities described herein, are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Letter Agreement. The Shareholders’ Agents undersigned hereby represents and warrants that the undersigned has full power and authority to enter into this Letter Agreement. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall not be responsible for any act done binding upon the successors, assigns, heirs or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconductpersonal representatives of the undersigned. The Holders undersigned understands that, if the Underwriting Agreement does not become effective by July 15, 2009, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall jointly terminate or be terminated prior to payment for and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part delivery of the Shareholders’ Agents Common Stock to be sold thereunder, the undersigned shall be released form all obligations under this Letter Agreement. The undersigned, whether or not participating in the Offering, understands that the Underwriter is entering into the Underwriting Agreement and arising out of or in connection proceeding with the acceptance or administration Public Offering in reliance upon this Letter Agreement. This lock-up agreement shall be governed by and construed in accordance with the laws of the Shareholders’ Agents’ duties hereunderState of New York, including without regard to the reasonable fees and expenses conflict of any legal counsel or other professional retained by the Shareholders’ Agentslaws principles thereof. Very truly yours, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereunder.By: Name: Exhibit B-1 FORM OF LEGAL OPINION OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C.

Xxxxx X. Xxxx Xxxxxxx, a director and Executive Vice President and Chief Operating Officer beneficially owns 2,742 outstanding Shares, (c) Xxxxx X. Xxxxxx, a director and General Counsel of the Company, beneficially owns 10,600 outstanding Shares, (d) Xxxxxxx X. Xxxxxxxxx, a director of the Company, beneficially owns 9,800 outstanding Shares, (e) Xxxxxx X. Xxxxxxxxxx, a director of the Company, beneficially owns 13,650 outstanding Shares, and (f) Xx. Xxx hereby X. Sterling, a director of the Company, beneficially owns 13,100 outstanding Shares. Pursuant to the Voting Agreements, upon the terms and subject to the conditions therein, each accepts his appointment as Proxy Grantor has agreed, provided the Merger Agreement has not been terminated, to promptly after the date of commencement of the Offer (but in all events not later than five business days thereafter) tender to Purchaser substantially all Shares beneficially owned by such Proxy Grantor. VOTING OF SHARES. Each Proxy Grantor has also agreed, provided the Merger Agreement has not been terminated, and subject to the receipt of proper notice and in the absence of a Shareholders’ Agent. Parent shall be entitled preliminary injunction or other final order by any court or other administrative or judicial authority barring such action, to deal exclusively vote the Shares beneficially owned by such Proxy Grantor in accordance with the Shareholders’ Agents on all matters relating to Voting Agreement, including (i) in favor of approval of the determination Merger Agreement, the transactions contemplated by the Merger Agreement, and any actions required in furtherance thereof and hereof (including the election of Final Working Capital pursuant to Section 3.1, designees of Parent as directors of the Company); (ii) the determination against any action or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Earnout Amount pursuant to Section 3.2, Company under the Merger Agreement; and (iii) the resolution of except as otherwise agreed to in writing in advance by Parent, against: (A) any disputes for which Parent may seek offset pursuant to Article 11 and Third Party Acquisition, (ivB) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement, and shall be entitled to rely conclusively (without further evidence of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of change in a majority of the shares of Company Preferred Stock and Company Common Stock individuals who, as of immediately prior to July 27, 1999, constitute the Effective Time Company Board (other than as contemplated by the Merger Agreement), (C) any extraordinary corporate transaction, such as a merger, consolidation or other business combination involving the Company or any of Merger Iits subsidiaries and any third party, shall(D) a sale, within ten (10) calendar days after such death lease, transfer or disability, appoint a successor agent and, promptly thereafter, shall notify Parent disposition of any assets of the identity Company's or any of such successor. Any such successor shall become one its subsidiaries' business outside the ordinary course of business, (E) any change in the present capitalization of the “Shareholders’ Agents” Company or any amendment of the Company's Certificate of Incorporation or bylaws, (F) any other material change in the Company's corporate structure or affecting its business, or (G) any other action which is intended, or could reasonably be expected, to impede, interfere with, delay, postpone or materially adversely affect the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement, or the Voting Agreement. IRREVOCABLE PROXY. Each Proxy Grantor has also, provided the Merger Agreement has not been terminated, appointed Purchaser and certain designees of Purchaser, in their respective capacities as designees of Purchaser, as such Proxy Grantor's true and lawful irrevocable (until the Termination Date) proxy and attorney-in-fact to vote all outstanding Shares beneficially owned by such Proxy Grantor at any Stockholders' Meeting called for purposes of (1) considering whether to approve the determination of Final Working Capital pursuant to Section 3.1Merger Agreement, (2) the determination Merger or any of the Earnout Amount pursuant other transactions contemplated by the Merger Agreement, or any Third Party Acquisition, or to Section 3.2, (3) the resolution execute a written consent of stockholders in lieu of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity under this Agreement. The Shareholders’ Agents shall not be responsible for any act done or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence or willful misconduct. The Holders shall jointly and severally indemnify the Shareholders’ Agents and hold the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on the part of the Shareholders’ Agents and arising out of or in connection with the acceptance or administration of the Shareholders’ Agents’ duties hereunder, including the reasonable fees and expenses of any legal counsel or other professional retained by the Shareholders’ Agents, in connection with the acceptance and administration of the Shareholders’ Agents’ duties hereundersuch meeting.

Xxxxx X. Xxxx and Xxxxxx X. Xxx hereby each accepts his appointment as a Shareholders’ Agent. Parent shall be entitled to deal exclusively with the Shareholders’ Agents on all matters relating to (i) the determination of Final Working Capital pursuant to Section 3.1Xxxxxx, (ii) the determination one of the Earnout Amount pursuant Selling Stockholders, has delivered to Section 3.2LaSalle National Bank, N.A. (iii"Transfer Agent") certificates in negotiable form for the resolution of any disputes Selling Stockholders Firm Securities to be sold by him for which Parent may seek offset pursuant to Article 11 and (iv) the enforcement of any rights the Holders may have against Parent or the Surviving Entity delivery under this Agreement, and shall be entitled to rely conclusively (without further evidence together with a letter of any kind whatsoever) on any document executed or purported to be executed on behalf of any Holder by the Shareholders’ Agents, and on any other action taken or purported to be taken on behalf of any Holder by the Shareholders’ Agents, as fully binding upon such Holder. If one of the Shareholders’ Agents shall die, become disabled or otherwise be unable to fulfill his responsibilities as agent of the Holders, then the Holders of a majority of the shares of Company Preferred Stock and Company Common Stock as of immediately prior instruction relating to the Effective Time of Merger I, shall, within ten (10) calendar days after such death or disability, appoint a successor agent and, promptly thereafter, shall notify Parent of the identity transfer of such successor. Any such successor shall become one of shares to the “Shareholders’ Agents” for purposes of (1) the determination of Final Working Capital pursuant to Section 3.1, (2) the determination of the Earnout Amount pursuant to Section 3.2, (3) the resolution of any disputes for which Parent may seek offset pursuant to Article 11 and (4) the enforcement of any rights the Holders may have against Parent or the Surviving Entity Underwriters under this Agreement. The Shareholders’ Agents Xxxxxxxx X. Xxxxxx, III, has also delivered to the Transfer Agent, certificates in negotiable form representing shares of Securities, certificates representing shares of Class B Common Stock to be converted into shares of Securities and options to be exercised for shares of Securities, in each case in respect of the Selling Stockholders Firm Securities to be delivered by him to the Underwriters under this Agreement, together with a letter of instruction relating to the transfer of such shares to the Underwriters under this Agreement. Each Selling Stockholder agrees that the shares represented by the certificates referred to above, the options and the shares to be issued upon exercise of the options are subject to the interests of the Underwriters hereunder, that the arrangements made by the Selling Stockholders described above are to that extent irrevocable, and that the obligations of the Selling Stockholders hereunder shall not be responsible terminated by operation of law, whether by the death of any individual Selling Stockholder or the occurrence of any other event, or in the case of a trust, by the death of any trustee or trustees or the termination of such trust. If any individual Selling Stockholder or any such trustee or trustees should die, or if any other such event should occur, or if any of such trusts should terminate, before the delivery of the Offered Securities hereunder, certificates for any act done such Offered Securities shall be delivered by the Transfer Agent in accordance with the terms and conditions of this Agreement as if such death or omitted thereunder as Shareholder’s Agents while acting in good faith and without gross negligence other event or willful misconducttermination had not occurred, regardless of whether or not the Transfer Agent shall have received notice of such death or other event or termination. The Holders shall jointly Company will deliver the Company Firm Securities and severally indemnify the Shareholders’ Agents and hold Transfer Agent will deliver the Shareholders’ Agents harmless against any loss, liability or expense incurred without gross negligence, bad faith or willful misconduct on Selling Stockholders Firm Securities to the part Representatives for the accounts of the Shareholders’ Agents Underwriters, against payment of the purchase price in Federal (same day) funds by official bank check or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the order of Genesee & Wyoming Inc. in the case of the Company Firm Securities, Xxxxxxxx X. Xxxxxx, III, in the case of the Selling Stockholders Firm Securities to be sold by him and arising out Xxxxx X. Xxxxxx in the case of the Selling Stockholders Firm Securities to be sold by him, at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York time, on December 21, 2001, or at such other time not later than seven full business days thereafter as CSFBC, the Company and the Selling Stockholders determine, such time being herein referred to as the "First Closing Date". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First Closing Date (if later than the otherwise applicable settlement date) shall be the settlement date for payment of funds and delivery of securities for all the Offered Securities sold pursuant to the offering. The certificates for the Firm Securities so to be delivered will be in definitive form, in such denominations and registered in such names as CSFBC requests and will be made available for checking and packaging at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx at least 24 hours prior to the First Closing Date. In addition, upon written notice from CSFBC given to the Company from time to time not more than 30 days subsequent to the date of the Prospectus, the Underwriters may purchase all or less than all of the Optional Securities at the purchase price per Security to be paid for the Firm Securities. The Company agrees to sell to the Underwriters the Optional Shares as described in greater detail below. The number of Optional Securities to be purchased shall be the number of Optional Securities specified in such notice and shall be purchased from the Company for the account of each Underwriter in the same proportion as the number of Firm Securities set forth opposite such Underwriter's name bears to the total number of Firm Securities (subject to adjustment by CSFBC to eliminate fractions) and may be purchased by the Underwriters only for the purpose of covering over-allotments made in connection with the acceptance or administration sale of the Shareholders’ Agents’ duties hereunderFirm Securities. No Optional Securities shall be sold or delivered unless the Firm Securities previously have been, including or simultaneously are, sold and delivered. The right to purchase the reasonable fees Optional Securities or any portion thereof may be exercised from time to time and expenses to the extent not previously exercised may be surrendered and terminated at any time upon notice by CSFBC to the Company. Each time for the delivery of any legal counsel and payment for the Optional Securities, being herein referred to as an "Optional Closing Date", which may be the First Closing Date (the First Closing Date and each Optional Closing Date, if any, being sometimes referred to as a "Closing Date"), shall be determined by CSFBC but shall be not later than five full business days after written notice of election to purchase Optional Securities is given. The Company will deliver the Optional Securities being purchased on each Optional Closing Date to the Representatives for the accounts of the several Underwriters, against payment of the purchase price therefor in Federal (same day) funds by official bank check or other professional retained by checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the Shareholders’ Agentsorder of the Company at the above office of Xxxxxxx Xxxxxxx & Xxxxxxxx. The certificates for the Optional Securities being purchased on each Optional Closing Date will be in definitive form, in connection with such denominations and registered in such names as CSFBC requests upon reasonable notice prior to such Optional Closing Date and will be made available for checking and packaging at the acceptance and administration above office of the Shareholders’ Agents’ duties hereunderXxxxxxx Xxxxxxx & Xxxxxxxx at a reasonable time in advance of such Optional Closing Date.