Common use of Board Matters Clause in Contracts

Board Matters. Unless otherwise unanimously agreed to by the Board, the authorized number of directors of the Company shall be seven (7) during the term of this Agreement. At the 2011 Annual Meeting of stockholders in connection with any election of directors to the Board, the Company shall nominate seven (7) persons for election to the Board, of which TLI shall be entitled to nominate three (3) members; provided, however, that in the event TLI’s beneficial ownership of the Company’s Common Stock is less than 31% but greater than 28% of the outstanding Common Stock, TLI shall be entitled to nominate two (2) members; if TLI’s beneficial ownership is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member to the Board. If any TL Investment nominee is not approved by the Company (such determination to be made in the sole discretion of the Company acting in good faith), TL Investment shall have the right to continue submitting the name of a Replacement to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions of the Company’s bylaws or certificate of incorporation with respect to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform the Company in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call a special meeting of stockholders of the Company to be held regarding any election of directors within six months after the 2011 Annual Meeting of Stockholders.

Board Matters. Unless otherwise unanimously agreed to (a) If requested in writing by Dolphin on or before the BoardInitial Standstill Period (defined below)(which request may be made only one time during this period) (the “Request”), the Board shall increase the authorized number of directors and appoint Xxxxxx X. Xxxxxx (the “Dolphin Director”) as a member of the Board of Directors of the Company shall be seven (7“Board”) during to fill the term vacancy created thereby and as a member of this Agreement. At the 2011 Annual Meeting Governance Committee and Compensation Committee of stockholders in connection with any election of directors to the Board, provided that, on the date of such request, Dolphin beneficially owns in the aggregate at least 4.5% of the then outstanding shares of common stock of the Company shall nominate seven (7) persons for election to the “Common Stock”). If at any time that the Dolphin Director is serving on the Board, of which TLI shall be entitled Dolphin sells Common Stock such that it ceases to nominate three (3) members; provided, however, that beneficially own in the event TLI’s beneficial ownership of the Company’s Common Stock is less than 31% but greater than 28aggregate at least 4.5% of the then outstanding Common Stock, TLI the Dolphin Director shall be entitled to nominate two (2) members; if TLI’s beneficial ownership is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) immediately submit his resignation as a Board member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate as a member to the Boardof any committee upon which he serves. If any TL Investment nominee is not approved by the Company (Board determines to accept the resignation, it shall provide a reason to Dolphin for such determination to acceptance. For avoidance of doubt, such resignation may be made accepted in the sole discretion of the Company acting Board for no reason other than such reduction in good faithownership. If the Dolphin Director is appointed to the Board, the Dolphin Director may not be removed by the Board at anytime prior to the 2016 Annual Meeting (as defined below), TL Investment other than for cause or as a result of Dolphin selling Common Stock such that it ceases to beneficially own in the aggregate at least 4.5% of the then outstanding Common Stock. For avoidance of doubt, nothing herein shall have require the right Board to continue submitting nominate the name of a Replacement Dolphin Director for election to the Company for its approval until Board at the 2016 annual meeting of shareholders of the Company approves (“2016 Annual Meeting”), but if the Dolphin Director is serving on the Board at such Replacement(stime as the Governance Committee and Board makes its determination of Board nominees in respect to the 2016 Annual Meeting, the Dolphin Director will be considered using the same standards used for other Board nominees, including those recommended by a shareholder of the Company. If the Request is made (i) prior to February 27, 2015 and not subsequently withdrawn prior to the date that is at least twenty calendar days prior to the initial filing of the Company’s proxy statement for the 2015 Annual Meeting (as defined below) (the “Filing Date”). The , the Company shall will, or (ii) on or after February 27, 2015 but at least twenty calendar days prior to the Filing Date, the Company will use its commercially reasonable efforts to cause to, nominate, recommend, support and solicit proxies for the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required Dolphin Director to comply with time periods provided the Board in the advance notice provisions of same manner as for the Company’s bylaws or certificate of incorporation with respect other nominees standing for election to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform Board at the Company in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its 2015 annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call a special meeting of stockholders shareholders of the Company to be (including any other meeting of shareholders held regarding in lieu thereof, and any election of directors within six months after adjournments, postponements, reschedulings or continuations thereof, the 2011 “2015 Annual Meeting of StockholdersMeeting”).

Board Matters. Unless otherwise unanimously agreed Prior to the execution of this Agreement (i) the Nomination and Governance Committee of the Board (the “Nominating Committee”) has reviewed and approved the qualifications of the New Director to serve as a member of the Board and (ii) the Board has determined that the New Director is “independent” as defined by the Boardlisting standards of NASDAQ. The Company agrees that the Board and all applicable committees of the Board shall take all necessary actions to (i) cause the Board to increase the size of its membership by one effective immediately following the execution of this Agreement; (ii) appoint, with such appointment effective immediately after the execution of this Agreement, the authorized number of directors New Director as a director of the Company shall be seven (7) during with a term expiring at the term of this Agreement. At the 2011 Company’s 2016 Annual Meeting of stockholders in connection with any election of directors Shareholders (the “2016 Annual Meeting”); (iii) nominate the New Director as a candidate for reelection to the Board, Board at the Company shall nominate seven 2016 Annual Meeting; and (7iv) persons for election cause the Board to decrease the Board, size of which TLI shall be entitled to nominate three (3) members; provided, however, that in the event TLI’s beneficial ownership its membership by one effective as of certification of the Company’s Common Stock is less than 31% but greater than 28% of the outstanding Common Stock, TLI shall be entitled to nominate two (2) members; if TLI’s beneficial ownership is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member to the Board. If any TL Investment nominee is not approved by the Company (such determination to be made in the sole discretion of the Company acting in good faith), TL Investment shall have the right to continue submitting the name of a Replacement to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions of the Company’s bylaws or certificate of incorporation shareholder vote with respect to the nominees it is entitled to nominate hereunder; provided2016 Annual Meeting. At the 2016 Annual Meeting and, howeverif the Standstill Period (as defined below) has not then expired, that TLI shall inform the Company’s 2017 Annual Meeting of Shareholders (the “2017 Annual Meeting”), the Company agrees to recommend, support and solicit proxies for the election of the New Director in a reasonable time and the same manner of as the Company has supported its nominees to enable up for election at prior annual meetings of shareholders at which the election of directors was uncontested. The Company to file its annual report agrees that the New Director shall receive (i) the same benefits of director and proxy officer insurance, and proceed with its annual meeting in a customary time any indemnity and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as exculpation arrangements available generally to the fitness or competence of the nominee of any party hereunder to serve directors on the Board (ii) the same compensation for his service as a director as the compensation received by virtue of other non-management directors on the Board, and (iii) such party’s execution of this Agreement other benefits on the same basis as all other non-management directors on the Board, including, without limitation, having the Company (or by legal counsel) prepare and file with the act of such party in voting for such nominee pursuant to this Agreement. None of TLISEC, at the Company’s expense, nor any officer or director thereofForms 3, shall call a special meeting of stockholders 4 and 5 under Section 16 of the Company Exchange Act that are required to be held regarding any election filed by each director of directors within six months after the 2011 Annual Meeting Company. The Company agrees that the size of Stockholdersthe Board shall not be increased beyond nine (9) members throughout the Standstill Period without the consent of the New Director.

Board Matters. Unless otherwise unanimously agreed No later than the first meeting of the Board of Directors of the Company (the “Board”) immediately following completion of the 2014 Annual Meeting of Stockholders, which 2014 Annual Meeting of Stockholders the Company agrees will be held on May 13, 2014 (the “2014 Annual Meeting”), the Board shall take action to increase the size of the Board by one member and to appoint Xxxxx Xxxxxx (the “New Nominee”) to fill the vacancy so created. From the date of this Agreement until the date the New Nominee becomes a member of the Board, the authorized number of directors New Nominee may attend as an observer any meetings of the Board (subject to the New Nominee agreeing to confidentiality arrangements with the Company shall be seven (7) during and the term preservation of this Agreementapplicable legal privileges). At the 2011 Annual Meeting Upon becoming a member of stockholders in connection with any election of directors to the Board, the New Nominee shall have the same rights (including for the avoidance of doubt with respect to consideration for committee appointments) and duties as any other Board member. Should the New Nominee resign from the Board or be rendered unable to, or refuse to, be appointed to, or for any other reason fail to serve or is not serving, on, the Board (other than as a result of not being nominated by the Company shall nominate seven (7) persons for election an annual meeting of shareholders subsequent to the Board2014 Annual Meeting), as long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five business days of which TLI written notice from the Company specifying any such breach, the Icahn Group shall be entitled to nominate three (3) membersdesignate privately, and the Company shall cause to be added as a member of the Board, a replacement selected from the list of unaffiliated, independent director candidates mutually agreed on April 6, 2014; providedit being understood that if none of the persons included on such list is willing and able to serve, howeverthen the Icahn Group may recommend another person for consideration by the Company who qualifies as an independent director and is not affiliated with either the Company or the Icahn Group, that who is selected in the event TLI’s beneficial ownership of same manner as the New Nominee and who is approved by the Company’s Common Stock , such approval not to be unreasonably withheld or delayed (an “Acceptable Person”) (and if such proposed designee is less than 31% but greater than 28% of not an Acceptable Person, the outstanding Common Stock, TLI Icahn Group shall be entitled to nominate two (2) members; if TLI’s beneficial ownership continue designating a recommended replacement until such proposed designee is equal an Acceptable Person). For the annual meeting of shareholders immediately subsequent to or the 2014 Annual Meeting, the Company shall notify the Icahn Group in writing no less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member to 10 business days before the Board. If any TL Investment nominee is not approved by the Company (such determination to be made in the sole discretion last day of the Company acting in good faith), TL Investment shall have the right to continue submitting the name of a Replacement to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions of deadline set forth in the Company’s bylaws or certificate (that is, the last day of incorporation with respect to the nominees it is entitled period contemplated in Section 1.14 of said bylaws, as the same may be amended) whether the Board intends to nominate hereunder; provided, however, that TLI shall inform the Company in New Nominee for election as a reasonable time and manner of its nominees to enable the Company to file its director at such annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call a special meeting of stockholders of the Company to be held regarding any election of directors within six months after the 2011 Annual Meeting of Stockholdersmeeting.

Board Matters. Unless otherwise unanimously agreed to by The Nominating and Governance Committee (the “Nominating Committee”) of the Board, the authorized number of directors Board and the Company shall work in good faith and each use their commercially reasonable efforts to identify and appoint to the Board within one hundred and twenty (120) days from the date hereof an additional independent Director mutually acceptable to each of the Company and Barington (hereinafter, the “New Director”). Upon becoming a member of the Board, the New Director shall serve as a Class I Director and shall have the same rights and benefits as any other Board member and shall be seven subject to the same duties, protections and policies of the Company that are applicable to all members of the Board. Furthermore, the New Director shall be considered by the Nominating Committee for inclusion on committees of the Board in good faith in a manner consistent with other members of the Board, in accordance with past practice, for which purpose his or her qualifications and experience shall be reasonably considered. The search (7the “New Director Search”) during for the term of this AgreementNew Director will be commenced reasonably promptly following the date hereof. At The Nominating Committee will lead the 2011 Annual Meeting of stockholders New Director Search and may, in connection with its discretion, engage a search firm to facilitate the New Director Search. The Nominating Committee will consider in good faith any election of directors candidates proposed by Barington, including the nominees previously nominated by Barington. Prior to making any recommendation to the Board, the Company shall nominate seven Nominating Committee will present to Barington a reasonable list of candidates under final consideration (7collectively, the “Final Candidates”) persons by the Nominating Committee and will arrange for election Barington to the Board, of which TLI shall be entitled to nominate three (3) members; provided, however, that in the event TLI’s beneficial ownership meet with any of the Company’s Common Stock is less than 31% but greater than 28% of Final Candidates at a time and in a manner reasonably acceptable to both Barington and the outstanding Common Stock, TLI shall be entitled to nominate two (2) members; if TLI’s beneficial ownership is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member to the BoardNominating Committee. If any TL Investment nominee is not approved by the Company (such determination to be made in the sole discretion of the Company acting in good faith), TL Investment The Nominating Committee shall have the right ultimate discretion to continue submitting the name of make a Replacement to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at selection from among any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions of the Company’s bylaws or certificate of incorporation with respect Final Candidates that are reasonably acceptable to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform the Company in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call a special meeting of stockholders of the Company to be held regarding any election of directors within six months after the 2011 Annual Meeting of StockholdersBarington.

Board Matters. Unless otherwise unanimously agreed (a) The Company hereby agrees to by cause the BoardBoard (i) to accept the resignations of X. Xxxxxxx XxXxxx, the authorized number of Xxxxxxxxxxx X. Xxxxx and Xxxx Xxxxxxx as directors of the Company shall be seven as promptly as practicable, (7ii) during the term of this Agreement. At the 2011 Annual Meeting of stockholders in connection with any election of directors to appoint Usman Nabi (“Mr. Nabi”) to the Board and to take all necessary actions to appoint Mr. Nabi to the Compensation Committee of the Board, ; (iii) to remove Xxxx Xxxxxxx as Chief Executive Officer and President of the Company shall nominate seven and elect W. Xxxxxxx Xxxxx to serve as Interim Chief Executive Officer and President, until a successor is elected by the Board; (7iv) persons for election to appoint to the Board (subject to delivery of a fully completed copy of the Company’s customary director onboarding documentation) as promptly as practicable, an individual recommended by H Partners who is not an employee or partner of H Partners and who otherwise meets the Director Criteria (as defined below) and is acceptable to the Board in its reasonable discretion (the “H Partners Additional Director”) and to take all necessary actions to appoint the H Partners Additional Director to the Nominating and Corporate Governance Committee of the Board, of which TLI shall be entitled to nominate three (3) members; provided, however, that in prior to the event TLI’s beneficial ownership date of the Company’s Common Stock is less than 31% but greater than 28% 2016 Annual Meeting of Stockholders (the outstanding Common Stock"2016 Annual Meeting") and provided the H Partners Group beneficially owns the Minimum Ownership Threshold (as defined below) if the Board does not appoint any such individual recommended by H Partners to the Board as a result of such person not meeting the Director Criteria or otherwise not being acceptable to the Board in its reasonable discretion, TLI H Partners shall be entitled permitted to nominate two (2recommend an additional individual(s) members; if TLI’s beneficial ownership until an H Partners Additional Director is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member appointed to the Board. If any TL Investment nominee is not approved by the Company ; (such determination v) to be made in the sole discretion take all necessary actions to establish a new committee of the Company acting Board (the “CEO Search Committee”) to consist of no more than four (4) independent directors, including Mr. Nabi as Chairman of such committee and, when appointed, the Additional Director as a member thereof, for the purpose of (A) engaging in good faith), TL Investment shall have the right a search for a candidate or candidates to continue submitting the name of serve as Chief Executive Officer and (B) making a Replacement recommendation to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions Board of the Company’s bylaws candidate or certificate of incorporation with respect candidates it recommends be appointed as Chief Executive Officer, provided that if the committee is deadlocked as to a candidate or candidates, it shall report to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform the Company Board in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on order for the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call make a special meeting of stockholders of the Company to be held regarding any election of directors within six months after the 2011 Annual Meeting of Stockholdersdetermination.

Board Matters. Unless otherwise unanimously agreed (a) The Company hereby agrees to by cause the BoardBoard (i) to accept the resignations of X. Xxxxxxx XxXxxx, the authorized number of Xxxxxxxxxxx X. Xxxxx and Xxxx Xxxxxxx as directors of the Company shall be seven as promptly as practicable, (7ii) during the term of this Agreement. At the 2011 Annual Meeting of stockholders in connection with any election of directors to appoint Usman Nabi (“Mr. Nabi”) to the Board and to take all necessary actions to appoint Mr. Nabi to the Compensation Committee of the Board, ; (iii) to remove Xxxx Xxxxxxx as Chief Executive Officer and President of the Company shall nominate seven and elect W. Xxxxxxx Xxxxx to serve as Interim Chief Executive Officer and President, until a successor is elected by the Board; (7iv) persons for election to appoint to the Board (subject to delivery of a fully completed copy of the Company’s customary director onboarding documentation) as promptly as practicable, an individual recommended by H Partners who is not an employee or partner of H Partners and who otherwise meets the Director Criteria (as defined below) and is acceptable to the Board in its reasonable discretion (the “H Partners Additional Director”) and to take all necessary actions to appoint the H Partners Additional Director to the Nominating and Corporate Governance Committee of the Board, of which TLI shall be entitled to nominate three (3) members; provided, however, that in prior to the event TLI’s beneficial ownership date of the Company’s Common Stock is less than 31% but greater than 28% 2016 Annual Meeting of Stockholders (the outstanding Common Stock“2016 Annual Meeting”) and provided the H Partners Group beneficially owns the Minimum Ownership Threshold (as defined below) if the Board does not appoint any such individual recommended by H Partners to the Board as a result of such person not meeting the Director Criteria or otherwise not being acceptable to the Board in its reasonable discretion, TLI H Partners shall be entitled permitted to nominate two (2recommend an additional individual(s) members; if TLI’s beneficial ownership until an H Partners Additional Director is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLI’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member appointed to the Board. If any TL Investment nominee is not approved by the Company ; (such determination v) to be made in the sole discretion take all necessary actions to establish a new committee of the Company acting Board (the “CEO Search Committee”) to consist of no more than four (4) independent directors, including Mr. Nabi as Chairman of such committee and, when appointed, the Additional Director as a member thereof, for the purpose of (A) engaging in good faith), TL Investment shall have the right a search for a candidate or candidates to continue submitting the name of serve as Chief Executive Officer and (B) making a Replacement recommendation to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment of such nominees at any election of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions Board of the Company’s bylaws candidate or certificate of incorporation with respect candidates it recommends be appointed as Chief Executive Officer, provided that if the committee is deadlocked as to a candidate or candidates, it shall report to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform the Company Board in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on order for the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call make a special meeting of stockholders of the Company to be held regarding any election of directors within six months after the 2011 Annual Meeting of Stockholdersdetermination.

Board Matters. Unless otherwise unanimously agreed to by the Board, the authorized number of directors of the Company shall be seven (7a) during the term of this Agreement. At the 2011 Annual Meeting of stockholders in connection with any election of directors Prior to the BoardClosing Date, the Company shall nominate seven (7) persons expand the Board by up to three directors, and cause the Nominating and Corporate Governance Committee of the Board to nominate, and the Board shall have appointed, subject to the Closing, one designee of Patriot and up to two designees of CapGen each as a director of the Company to fill, effective as of the Closing, the vacancies created by such expansion of the Board. For so long as CapGen or Patriot or any of their affiliates, as applicable, owns more than 9.9% of the Company’s outstanding Common Stock, and subject to satisfaction of all legal and governance requirements applicable to all Board members regarding service as a director of the Company, the Company shall cause the nomination of one person designated by Patriot and up to two people designated by CapGen for election to the BoardBoard at each annual meeting at which the term of each such director expires, or upon the death, resignation, removal or disqualification of which TLI each such director, if earlier. Patriot and CapGen shall each provide written notice of such designees to the Company, together with any information pertaining to the nominated persons reasonably requested by the Company. Upon receipt of such notice and information, the Company shall do, or cause to be entitled done, all things, and take, or cause to nominate three (3) members; providedbe taken, howeverall actions necessary, that in the event TLI’s beneficial ownership including filing and actively seeking approvals of, all applications for prior approval of all Governmental Authorities under Applicable Law necessary or expedient to having such designees be elected and qualified to serve as members of the Company’s Common Stock is less than 31% but greater than 28% of the outstanding Common Stock, TLI Board as soon thereafter as reasonably practicable. The Company shall be entitled to nominate two (2) members; if TLIalso elect Patriot’s beneficial ownership is equal to or less than 28% but greater than 14% TLI shall be entitled to nominate one (1) member and if TLICapGen’s beneficial ownership is equal to or less than 14%, TLI shall not be entitled to nominate a member designees to the BoardBank’s board of directors and to the board of directors of any other subsidiary requested by Patriot or CapGen, as applicable. If any TL Investment nominee is not approved by After the Company (such determination Closing but prior to be made in the sole discretion election and qualification of the Company acting in good faith)Patriot or CapGen’s designees, TL Investment as applicable, Patriot shall have the right to continue submitting designate one non-voting observer, and CapGen shall have the name of a Replacement right to designate two nonvoting observers to the Company for its approval until the Company approves such Replacement(s). The Company shall use its commercially reasonable efforts to cause the election or appointment boards of such nominees at any election directors of stockholders, including, but not limited to, the recommendation of such nominees in any proxy statement or related materials. TLI shall not be required to comply with time periods provided in the advance notice provisions of the Company’s bylaws or certificate of incorporation with respect to the nominees it is entitled to nominate hereunder; provided, however, that TLI shall inform the Company in a reasonable time and manner of its nominees to enable the Company to file its annual report and proxy and proceed with its annual meeting in a customary time and manner. None of the parties hereto and no officer, director, stockholder, partner, employee or agent of any party makes any representation or warranty as to the fitness or competence of the nominee of any party hereunder to serve on the Board by virtue of such party’s execution of this Agreement or by the act of such party in voting for such nominee pursuant to this Agreement. None of TLI, the Company, nor any officer or director thereof, shall call a special meeting of stockholders each of the Company to be held regarding any election of directors within six months after and the 2011 Annual Meeting of StockholdersBank.