Common use of Board Representation Clause in Contracts

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company CertificateCompany’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.031.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company CertificateCompany’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).

Board Representation. (a) Subject to applicable LawEach Executive Stockholder and Carlyle Stockholder shall vote all of the Voting Shares over which such Executive Stockholder or such Carlyle Stockholder has voting control and shall take all other necessary or desirable actions within such Executive Stockholder’s or such Carlyle Stockholder’s control (whether in such Executive Stockholder’s or such Carlyle Stockholder’s capacity as a stockholder, immediately upon payment by Offeror for shares director, member of a Board committee or officer of the Company Common Stock accepted at the Acceptance Timeor otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings, and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws) so that (i) the authorized number of directors (the “Directors”) on the Board shall be at least six and no greater than nine and (ii) the Directors shall be the persons nominated or designated in accordance with this Section 1. The smallest number of Directors as shall constitute a majority of the total number of Directors from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, authorized to serve on the Board shall be designated for nomination for election by the Carlyle Stockholders; provided, however, that not more than three of Directors such designees of the Company as will give Offeror representation on the Board of Directors Carlyle Stockholders at any time may be full-time employees of the Carlyle Stockholders or any of their respective Affiliates (other than the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of and its subsidiaries), and any additional directors pursuant to this Section) and (ii) such designees of the percentage that Carlyle Stockholders at any time shall be designated for nomination for election after consultation with the number Chief Executive Officer of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size . Two of the Board of Directors and/or securing shall be designated for nomination for election by the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors Chief Executive Officer of the Company and shall be full-time employees of BAH; provided, however, that at any time when the Chief Executive Officer of the Company is a natural person who has not been a full-time employee of BAH for at least five years, such two Directors shall instead be designated for nomination for election by the Executive Stockholders holding a majority of the Voting Shares held by all Executive Stockholders (ii) subject in either case, the individuals designated pursuant to applicable Law this sentence shall be referred to as the “Executive Directors”). Any remaining Directors shall be jointly designated for nomination for election by the Chief Executive Officer and the Carlyle Stockholders; provided, however, that if (x) the Chief Executive Officer of the Company Certificateis a natural person who has not been a full-time employee of BAH for at least five years, each Board (y) such Chief Executive Officer of the Company has not been designated as a Executive Director, and (z) the Carlyle Stockholders determine that such Chief Executive Officer of the Company should serve as a Director, such Chief Executive Officer shall be so designated for nomination for election and shall constitute one of such remaining Directors. Any Directors and each committee thereof of each Subsidiary (other than the Chief Executive Officer of the Company. The Company’s obligations ) designated pursuant to appoint designees to its Board of the immediately preceding sentence, and any Directors shall be subject to compliance with Section 14(f) designated by the Carlyle Stockholders who are not full-time employees of the Exchange Act. Subject to applicable Law, and subject to Parent supplying Carlyle Stockholders or any of their respective Affiliates (other than the Company as promptly as practicable and its subsidiaries) and were designated after consultation with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) Chief Executive Officer of the Exchange Act and Rule 14f-1 promulgated thereunder, at Company are hereinafter sometimes referred to as the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act“Unaffiliated Directors”.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares the director qualification standards of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors each of the Company as will give Offeror representation on and Republic First Bank (the Board of Directors “Bank”), within 30 calendar days of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes date of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable LawConsulting Agreement, the Company shall, and shall use commercially reasonable efforts to enable individuals designated by Parent to constitute cause the same percentage as is on Bank to, appoint Consultant’s designee (the entire Board of Directors of the Company (after giving effect to this Section 1.03“Designee”) to be on (i) each committee of the Board of Directors of the Company and the Board of Directors of the Bank, respectively, as a Class III member to serve in accordance with the articles of incorporation and bylaws of the Company and the articles of incorporation and bylaws of the Bank. During the Term, (i) with respect to each meeting of the Company's stockholders at which the Designee's then-current term expires, the Company's board of directors shall nominate the Designee and the Company shall recommend to its stockholders the election of the Designee to the Company's board of directors, and the Company shall solicit proxies for election of the Designee to the same extent as it solicits proxies for its other nominees for the board of directors, and (ii) with respect to each meeting of the Bank's stockholder (or any action by written consent in lieu of such meeting) at which the Designee's then-current term expires, the Company shall elect the Designee to serve on the Bank's board of directors, in each case subject to applicable Law the director qualification standards of the Company and the Bank, respectively. During the Term, in the event that the Designee is unable to continue serving as a director of the Company and the Bank as a result of illness, incapacity, death, retirement, resignation or any other reason, Consultant shall designate an individual to replace the Designee as a director of the Company and the Bank, subject to the director qualification standards of the Company and the Bank, respectively, and the Company Certificate, each Board shall promptly take all action necessary to cause such individual to be elected to the boards of Directors and each committee thereof of each Subsidiary directors of the CompanyCompany and the Bank (and such individual shall constitute the "Designee" for all purposes hereunder). The Company’s obligations to appoint designees to its Board of Directors Designee shall be subject entitled to compliance the same compensation, expense reimbursement and indemnification in connection with Section 14(f) his or her service as a director as are enjoyed by the other members of the Exchange Act. Subject to applicable Law, and subject to Parent supplying board of directors of the Company and the Bank. Upon termination of this Consulting Agreement pursuant to Section 1(b) by the Company or by the Consultant, or, if later, on such date as promptly as practicable Consultant, together with (i) his affiliates, (ii) the information persons listed on the attached Exhibit A and (iii) any other person who may be deemed, with respect Consultant, to itself and its nominees, officers, directors and affiliates required by constitute a “group,” (within the meaning of Section 14(f13(d) of the Exchange Act and Rule 14f-1 the rules and regulations promulgated thereunder), is not the record or beneficial owner of at least 4.9% of the request outstanding Common Stock of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, Consultant shall use his reasonable best efforts to cause the Designee to resign from service as a director of the Company and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActBank.

Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (a) Subject to applicable Lawon a fully diluted basis), immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such at its option up to that number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of DirectorsBoard, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable Lawlaw, and subject to Parent supplying the Company as promptly as practicable with has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, at the request stockholders of Parent, the Company shall promptly takehave approved the Merger; provided, at however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its expensereasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all actions material governmental consents, orders and approvals legally required pursuant to Section 14(ffor the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and Rule 14f-1 under antitrust laws of applicable jurisdictions outside the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply United States applicable to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActMerger shall have expired or been terminated.

Board Representation. (aA) Subject Effective upon the IPO Closing and prior to applicable Lawthe Business Combination Closing, immediately the Purchaser shall have the right to designate, upon payment by Offeror for shares written notice to the Company and the Sponsor, one individual to be a nonvoting observer (a “Board Observer”) of Company Common Stock accepted at the Acceptance TimeBoard and to receive all information provided to the members of the Board during the period in which such person is a Board Observer, and from time (B) following the Business Combination Closing, the Purchaser shall have the right to time thereafter as shares of Company Common Stock are acquired by Parent or Offerorrequest, Parent shall be entitled to designate such number of directors, rounded up upon written notice to the next whole numberCompany and the Sponsor, to serve on the designation of one Board Observer, and upon the exercise of Directors of such right, the Company as will give Offeror representation on and the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company Sponsor shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, includingcause, subject to applicable Law and law, such Board Observer to be appointed to the Company Certificate, increasing Board as a nonvoting observer to receive all information provided to the size members of the Board of Directors and/or securing during the resignations of incumbent directors. Subject to applicable Lawperiod in which such person is a Board Observer; provided, that, in each such case, the Board Observer shall not be entitled to vote on any matter submitted to the Board or any of its committees nor to offer any motions or resolutions to the Board or such committees. The Company shall use commercially reasonable efforts may exclude any Board Observer from access to enable individuals designated by Parent to constitute any material or meeting or portion thereof if: (1) in the same percentage as is on the entire Board of Directors opinion of the Company Company, acting reasonably and in good faith having received the advice of counsel, such exclusion is reasonably necessary to (after giving effect to this Section 1.03A) to be on comply with applicable laws, rules or regulations and the Company’s contractual obligations or (iB) each committee of the Board of Directors preserve any legal privilege of the Company and its subsidiaries; or (ii2) subject such portion of a meeting is an executive session limited solely to applicable Law independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary Observer (assuming the Board Observer were a member of the Company. The Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actsecurities are then traded.

Board Representation. (a) Subject at all times to applicable LawSections 2(b) and 3(n) herein, immediately during the period beginning at the closing of the IPO until the earliest of (a) the twelfth anniversary of the date of the closing of the IPO; (b) such time as the Investors and their respective Affiliates no longer beneficially own, collectively, at least 6,250,000 Series C Shares or the equivalent of any successor securities issued upon payment by Offeror for conversion of such Series C Shares (including shares of voting common stock issued upon conversion of non-voting common stock issued upon conversion of the Series C Shares) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such Series C Shares), or (c) following the third year anniversary of the IPO, such time as the Investors collectively hold less than 5% of the as-converted securities of the Company, the Company Common Stock accepted shall support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable law, to recommend and include in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company at each annual or special meeting of the Acceptance TimeCompany’s stockholders at which directors are to be elected (an “Election Meeting”), one (1) person designated at any time and from time to time thereafter as shares by the mutual consent of the Investors (an “Investor Designee”); provided that, the Company Common Stock are acquired by Parent shall have no obligation to support the nomination of or Offeror, Parent shall be entitled cause the Board of Directors to designate such number include in the slate of directors, rounded up nominees recommended to the next whole number, to serve Company’s stockholders for election as directors of the Company an Investor Designee if the Investors already have an Investor Designee serving as a director on the Board of Directors at the time of the Company Election Meeting and the term(s) of such Investor Designee(s) as will give Offeror representation a director on the Board of Directors of does not expire at such Election Meeting. In the Company of at least event that number of directors which equals the product of (i) the total number of directors an Investor Designee resigns from his or her seat on the Board of Directors (giving effect or is removed or otherwise fails to become or ceases to be a director for any reason, the vacancy will be filled by the election or appointment of any additional directors pursuant to this Section) another Investor Designee nominated by the Investors as soon as reasonably practicable in compliance with applicable laws, rules and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstandingregulations. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent Investors will supply to provide the Company, and be solely responsible forin writing, all the information with respect to itself and its officers, directors and Affiliates about any Investor Designee that is reasonably required by Section 14(f) applicable law promptly after the Company requests such information from the Investors, and Rule 14f-1 under will cause any Investor Designee to submit on a timely basis to the Exchange ActCompany a completed and executed questionnaire in the form that the Company provides to its outside directors generally.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at Until the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product earliest of (i) the total number of directors on the Board of Directors Spin-Off Date (giving effect at which time a new Shareholders Agreement as to the election of any additional directors pursuant to this SectionCompany shall be entered into in accordance with the Purchase Agreement) and (ii) the percentage date on which the IEP Group ceases to own at least 10.0% of the issued and outstanding shares of Common Stock, measured as a single class, provided, that the number IEP Group Designee (as defined below) shall have resigned from the Board at least thirty (30) days prior to the IEP Entities’ (or the IEP Group’s) taking any of shares the actions set forth in Sections 3.02(a)(ii) through (xi) (it being understood that if the deadline for director nominations under the advance notice provisions of the Company’s by-laws expires during such thirty (30) day period, then the IEP Entities may, during such thirty (30) day period, submit to the Company Common Stock beneficially owned a By-Law Director Nomination) (the “Board Designation Period”), the Board shall take all action necessary to nominate and recommend for election at each annual meeting of stockholders the then-serving Chief Executive Officer of IEP (or, if such individual is unwilling or unable to serve as a director of the Company, an individual designated by Parent and/or Offeror the IEP Group who is not an employee of any IEP Entity (including the “Replacement Designee”); provided that any that such individual shall meet the applicable requirements set forth in the Company’s bylaws and the Corporate Governance Principles adopted by the Board and shall be reasonably acceptable to the Company (an “Acceptable Replacement Designee”), provided, that the fact that any proposed Replacement Designee is not an Acceptable Replacement Designee shall not terminate the IEP Group’s rights hereunder, and, until the end of the Board Designation Period, the IEP Group shall be entitled to continue designating new Replacement Designees until one such proposed Replacement Designee is an Acceptable Replacement Designee (the “IEP Group Designee”). Such individual who is or becomes a director of the Company in accordance with the foregoing shall continue as a director of the Company until the earlier of (x) his or her death, resignation or removal and (y) the time at which his or her successor is duly elected and qualified. Notwithstanding the foregoing, the Holder and its Affiliates shall cause the individual designated or nominated pursuant to this Section 3.04 to resign from the Board upon the termination of the Board Designation Period (it being understood that such individual’s form of resignation letter that is required to be executed by such individual and held by the Company Secretary as a condition of membership on the Board shall be automatically effective upon the termination of the Board Designation Period, as well as upon the effectiveness triggers applicable to all members of the Board). Solely for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears 3.04(a), if the IEP Entities cease to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected own 10.0% or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size more of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawthen-issued and outstanding Common Stock, the Company IEP Entities shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors not be considered members of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActIEP Group.

Board Representation. (a) Subject So long as the sum of the number of Ordinary Shares and the number of Ordinary Shares into which the then outstanding Note may be converted, in each case, beneficially owned by the Investor, together with its Subsidiaries, is at least 5,057,952 Ordinary Shares, subject to applicable Lawadjustment for any share split, immediately upon payment by Offeror for shares share dividend, recapitalization, reclassification or similar transaction of the Company Common Stock accepted at made in respect of any Ordinary Shares, the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Investor shall be entitled to designate such number of directors, rounded up one (1) director to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on (such director, or such other individual who may be designated by the Investor from time to time, the “Investor Director”), and the Company shall arrange for the appointment or election of such Investor Director to the Board of Directors of as soon as practicable after the Investor notifies the Company of its designation of the Investor Director and following receipt by the Company of all documentation requested by the Company reasonably required for the appointment of the Investor Director but in no event later than thirty (30) days after the receipt of such notification, including convening a meeting of the Board or obtaining resolutions in writing signed by all directors pursuant to the Constitution and appointing such Investor Director to the Board, who shall hold such office until the next annual general meeting in accordance with the Company’s Constitution and shall be re-appointed by the Company for election at least that number such meeting in accordance with Section 2.01(e) below, and in the case of directors which equals the product of an election, (i) nominating such individual to be elected as a director as provided herein, (ii) using best efforts to ensure, and to the total number of directors on extent permitted by Applicable Law and the Board of Directors (giving effect Company’s Constitution, recommending to the Shareholders, the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears Investor Director to the number Board in any meeting of shares Shareholders to elect directors, including soliciting proxies in favor of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the election of the Investor Director, (iii) including such nomination regarding such individual in the Company’s Board notice for any meeting of DirectorsShareholders to elect directors, includingand (iv) if necessary, subject to applicable Law and the Company Certificate, increasing expanding the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations in order to appoint designees to its Board of Directors the Investor Director; provided, however, that the Investor Director candidate shall be subject to compliance with Section 14(f) the approval of the Exchange Act. Subject to applicable LawBoard, which approval shall not be unreasonably withheld, and further subject to Parent supplying the election by the Shareholders of the Company as promptly as practicable with to the information with respect to itself and its nominees, officers, directors and affiliates extent required by Section 14(f) of the Exchange Act Applicable Law and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act’s Constitution.

Board Representation. (a) Subject to applicable LawLaw and to the extent permitted by the NYSE, immediately promptly upon the acceptance for payment by Offeror for shares of Company Common Stock accepted at any Shares pursuant to the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or OfferorOffer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror Merger Subsidiary representation on the Board of Directors of the Company of at least that number of directors which equals equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock Shares beneficially owned by Parent and/or Offeror Merger Subsidiary (including for purposes of this Section 1.03 such shares of Company Common Stock Shares accepted for payment) bears to the number of shares of Company Common Stock then Shares outstanding. The Company shall use commercially reasonable efforts take all actions necessary to cause Parent’s 's designees to be elected or appointed to the Company’s 's Board of Directors, including, subject to applicable Law and the Company Certificate, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directorsdirectors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the NYSE listing requirements). Unless waived in writing by Parent, the Company shall, prior to the expiration of the Offer, deliver to Parent such resignations of directors conditioned upon acceptance of Shares for payment and evidence of the valid election of Parent's designees to the Company's Board of Directors conditioned upon acceptance of Shares for payment so as to effect the provisions of this Section 2.03(a). Subject to applicable Law, the Company shall use commercially reasonable efforts to enable cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.032.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s 's obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at At the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill fulfil its obligations under this Section 1.03(a2.03(a) and shall include in the originally filed Schedule 14D-9 and or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act.

Board Representation. (a) Subject Until the earlier of (i) the end of the Director Nomination Right Period, or (ii) until such time as Marubeni or INCJ, as applicable, ceases to beneficially own at least 2,500,000 shares of Common Stock of the Company, each of Marubeni and INCJ shall have the right to designate one (1) nominee for appointment or election to the Board, who shall be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board acting in good faith and applying reasonable and customary criteria applicable Lawto all non-officer/non-employee Directors generally and who (1) shall be a Non-U.S. Person to the extent determined necessary by the Board in order to preserve the Company’s status as a Foreign Private Issuer; (2) shall be determined in the reasonable judgement of the Nominating and Corporate Governance Committee to qualify as an Independent Director; (3) shall not be an officer or employee of the Company, either at the time of or following their appointment as Director; and (4) shall not be an officer or an employee or a board member of any Person engaged in a Restricted Business within the Restricted Territory (each as defined in the Share Purchase Agreement) (the “Director Nomination Right”); provided however, that at any time prior to the expiration of the Director Nomination Right Period, each of Marubeni and INCJ shall have the right to notify the Company, in writing, that, effective not earlier than the date of such written notice, MOL may exercise the Director Nomination Right set forth in this Section 2.01(a) in the place of, and not in addition to, either Marubeni or INCJ. For the avoidance of doubt, (i) the Director Nomination Right of a Shareholder shall terminate immediately upon payment by Offeror for the beneficial ownership of such Shareholder being less than 2,500,000 shares of Company Common Stock accepted at of the Acceptance TimeCompany, and any sitting director of the Company nominated pursuant to such Shareholder’s Director Nomination Right shall resign from time the Board upon the termination of the Director Nomination Right pursuant to time thereafter as shares which he or she was nominated; and (ii) paragraph (i) would apply also to MOL in the event that MOL would have the right to exercise the Director Nomination Right. In the event that the Nominating and Corporate Governance Committee determines in its good faith reasonable judgment that a nominee designated pursuant to the Director Nomination Right is not reasonably acceptable in accordance with the requirements of Company Common Stock are acquired by Parent or Offerorthis Section 2.01(a), Parent then the Nominating and Corporate Governance Committee shall provide the Shareholder that designated such nominee a written explanation of the basis for such decision. For the avoidance of doubt, if the Nominating and Corporate Governance Committee determines in its good faith reasonable judgment that a nominee designated pursuant to the Director Nomination Right is not reasonably acceptable in accordance with the requirements of this Section 2.01(a), then the Shareholder that designated such nominee shall be entitled to designate such number of directors, rounded up to the next whole number, another nominee to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActBoard.

Board Representation. (a) Subject to applicable LawEffective as of the First Closing Date, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as Seller will give Offeror representation on appoint Michxxx X. Xxxx xxx Raymxxx X. Xxxxxxx xx the Board of Directors of the Company Seller, each to fill an existing vacancy on the Seller's Board of at least that number Directors until the next Annual Meeting of directors which equals the product Stockholders of the Seller or until their earlier resignation, retirement, or death. Until the first to occur of (i) the total number passage of directors on five calendar years after the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and First Closing Date, (ii) the percentage that date (if any) on which the number Purchaser and all Persons controlling, controlled by, or under common control with the Purchaser no longer collectively own at least five percent of shares the outstanding Seller Common Stock, and (iii) the occurrence of Company Common Stock beneficially owned a Purchaser Breach (as hereinafter defined) (the "Corporate Governance Period"), the Seller shall nominate two individuals designated by Parent and/or Offeror (including the Purchaser for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears election to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Seller's Board of Directors; provided, includinghowever, subject to applicable Law and that notwithstanding the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawforegoing, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of Purchaser agrees that the Board of Directors of the Company Seller shall not be required to so nominate any individual designated by the Purchaser (a) with respect to whom disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Exchange Act that was subject, directly or indirectly, to the disclosure requirements of either Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing, in compliance with Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing, or (b) who does not agree in writing to such nomination and (iito serve as a Director of the Seller if elected as such by the stockholders of the Seller. In addition, during the Corporate Governance Period, the Seller will appoint one designee of the Purchaser to the Advisory Committee to the Seller's Board of Directors; provided, however, that notwithstanding the foregoing, the Purchaser agrees that the Seller shall not be required to so appoint any individual designated by the Purchaser with respect to whom, if a Director of the Seller, disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Exchange Act that was subject, directly or indirectly, to the disclosure requirements of either Item 401(f) subject of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing, in compliance with Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing. Notwithstanding any provision of this Agreement to applicable Law and the Company Certificatecontrary, each however, in the event that neither a Second Closing nor a Third Closing occurs hereunder, then the Seller shall only be required pursuant to this Section 6.2 to nominate one such individual designated by the Purchaser for election to the Seller's Board of Directors and each committee thereof of each Subsidiary for the remainder, if any, of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActCorporate Governance Period.

Board Representation. (a) Subject at all times to Sections 2(b) and 3(n) below, during the period beginning immediately following the closing of the IPO and for three (3) years thereafter, at any time at which the Investor and its Affiliates, collectively, beneficially own (i) the Required Shares and (ii) at least 2% of the Company’s then-outstanding voting Common Stock, the Company shall support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable Lawlaw, immediately upon payment by Offeror to include in the slate of nominees recommended to the Company’s stockholders for shares election as directors of the Company Common Stock accepted at each annual or special meeting of the Acceptance TimeCompany’s stockholders at which directors are to be elected (an “Election Meeting”), one (1) person designated at any time and from time to time thereafter as shares by the Investor (the “Investor Designee”); provided that, the Company shall have no obligation to support the nomination of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled cause the Board of Directors to designate such number include in the slate of directors, rounded up nominees recommended to the next whole number, to serve Company’s stockholders for election as directors of the Company an Investor Designee if the Investor already has at least one Investor Designee serving as a director on the Board of Directors at the time of the Company Election Meeting and the term of such Investor Designee as will give Offeror representation a director on the Board of Directors of does not expire at such Election Meeting. In the Company of at least event that number of directors which equals the product of (i) the total number of directors Investor Designee resigns from his or her seat on the Board of Directors (giving effect or is removed or otherwise fails to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees become or ceases to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawa director for any reason, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute cause the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) vacancy to be on (i) each committee filled by the election or appointment of another Investor Designee nominated by the Board of Directors of the Company Investor as soon as reasonably practicable in compliance with applicable laws, rules and (ii) regulations, subject to applicable Law and the Company Certificate, each Board requirements of Directors and each committee thereof of each Subsidiary of the Companyfiduciary duties. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent Investor will supply to provide the Company, and be solely responsible forin writing, all the information with respect to itself and its officers, directors and Affiliates about the Investor Designee that is reasonably required by Section 14(f) applicable law for inclusion in the Company’s proxy materials for meetings of stockholders promptly after the Company requests such information from the Investor, and Rule 14f-1 under will cause the Exchange ActInvestor Designee to submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its outside directors generally.

Board Representation. (a) Subject The Company will, within ten days following the execution of this Agreement, cause Xxxxx X. Xxxxxxxxx to applicable Law, immediately upon payment by Offeror for shares be elected to the Company's Board of Company Common Stock accepted Directors in the class of directors with a term expiring at the Acceptance Timeannual meeting of the Company's shareholders to be held in 2000, and from time if Xx. Xxxxxxxxx (or, if any additional director is elected to time thereafter as shares the Company's Board of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up Directors pursuant to the next whole numbertwo sentences prior to the annual meeting of the Company's shareholders to be held in 1999, such additional director) is not elected as a director at the annual meeting of the Company's shareholders to serve on be held in 1999, then the Company will promptly after such meeting cause Xx. Xxxxxxxxx (and such additional director, if applicable) to be elected to the Company's Board of Directors in such class of directors. At any time prior to March 1, 2000, Xx. Xxxxxxxxx may serve notice on the Company as will give Offeror representation on to the Board of Directors of effect that the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect Shareholders desire to cause the election of any an additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed member to the Company’s 's Board of Directors, including, subject which notice shall specify three individuals who are qualified to applicable Law and the Company Certificate, increasing the size serve as members of the Company's Board of Directors and/or securing the resignations and who are neither affiliates nor associates of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors any of the Company Shareholders (after giving effect and who shall agree to this Section 1.03) to be on (i) each committee resign as a member of the Board of Directors of the Company and NewCo (as defined below) if required by the terms of this Agreement and the NewCo Agreement (as defined below)). In such event, the Company will, within 20 days following receipt of such notice, cause one of such individuals to be elected to the Company's Board of Directors, with a term coincident with Xx. Xxxxxxxxx'x term as a member of the Company's Board of Directors. If during the term of this Agreement the Company effects a spin-off or similar distribution to its shareholders of its Color Printing and Imaging Products business (such newly formed spun-off or distributed entity, "NewCo"), then (i) immediately prior to consummation of such spin-off or other distribution and subject to the entering into of a shareholder agreement among NewCo and the Shareholders on terms substantially identical to the terms of this Agreement (the "NewCo Agreement"), the Company will cause Xx. Xxxxxxxxx to be elected to NewCo's Board of Directors, with a term ending on the expiration of such shareholder agreement (and, if an additional director shall be elected to the Company's Board of Directors as provided above, such additional director shall be elected to NewCo's Board of Directors at the later of Xx. Xxxxxxxxx'x election to NewCo's Board of Directors or such additional director's election to the Company's Board of Directors, with a term coincident with Xx. Xxxxxxxxx'x term as a member of NewCo's Board of Directors) And (ii) subject to applicable Law NewCo and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of Shareholders shall enter into the Company. The Company’s obligations Newco Agreement prior to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Acteffecting such transaction.

Board Representation. (a) Subject Promptly upon the purchase of Shares pursuant to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or OfferorOffer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Company Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals is equal to the product of (ia) the total number of directors on the Company Board of Directors (after giving effect to the election of any additional directors designated by Parent pursuant to this Sectionsentence) and (iib) the percentage that the total votes represented by such number of shares Shares in the election of directors of the Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) so purchased bears to the total votes represented by the number of shares of Company Common Stock then Shares outstanding. The In furtherance thereof, the Company shall use commercially reasonable shall, upon request by Parent, promptly increase the size of the Company Board and/or exercise its best efforts to cause secure the resignations of such number of its directors as is necessary to enable Parent’s 's designees to be elected or appointed to the Company’s Company Board of Directors, including, subject and shall take all actions to applicable Law and cause Parent's designees to be so elected to the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directorsBoard. Subject to applicable LawAt such time, the Company shall use commercially reasonable efforts to enable individuals also cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the entire Company Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board Company Board, (ii) each board of Directors directors (or similar body) of each Company Subsidiary (as hereinafter defined) and (iii) each committee (or similar body) of each such board. The Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14f-1 of the Exchange Act in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 to its stockholders such information with respect to the Company and (ii) subject to applicable Law its officers and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with directors as is required by such Section 14(f) of the Exchange Actand Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Subject Parent will supply to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to such Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under 14f-1. The provisions of this Section 1.03(a) 1.3 are in addition to and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. not limit any rights which Acquisition Sub, Parent will supply to the Company, and be solely responsible for, all information or any of their affiliates may have as a holder or beneficial owner of Shares as a matter of law with respect to itself and its officersthe election of directors or otherwise. In the event that Parent's designees are elected to the Company Board, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act.3

Board Representation. (a) Subject to applicable LawSection 2.5, immediately upon payment by Offeror for shares the senior member of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Equity Purchaser shall be entitled to designate such number of directorsone person for election to, rounded up to and the next whole number, to serve on the Board of Directors shareholder of the Company Trust Preferred Purchaser shall be entitled to designate one person to attend as will give Offeror representation on a non-voting observer at all meetings of (and to receive all materials and information that voting Directors receive) (the Board of Directors of the Company of at least that number of directors which equals the product of "KKR OBSERVER"), (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and Company Board, (ii) the percentage DP&L Board and (iii) the board of directors of any separate entity or entities formed to hold DP&L's electricity generation, transmission and/or distribution businesses or any material portion thereof (other than a wholly owned Subsidiary of the Company or DP&L or any of their respective wholly owned Subsidiaries) (collectively, the "APPLICABLE BOARDS"), and the Company agrees, to the extent permitted by Law to take such action as may be required under applicable Law (A) so that, effective as of the Closing, the Company Board and the DP&L Board shall each consist of eleven members and shall include the KKR Representative, (B) to include in any slate of nominees recommended by the Applicable Boards for election by the shareholders the KKR Representative, (C) to take such action as may be required under applicable Law to cause the initial KKR Representative to be designated to be a member of the class of the Directors on each Applicable Board which is a classified board having the longest remaining term (which in the case of the Company Board shall be the term extending until the 2003 annual meeting of shareholders), (D) to use its reasonable best efforts to cause the election of the KKR Representative to the Applicable Boards, including nominating such individual, or causing its Subsidiaries to nominate such individual, as appropriate, to be elected as a Director of the Applicable Boards and (E) not to take any action that would cause the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror Directors constituting any Applicable Board to be less than eleven at any one time; PROVIDED that any KKR Representative or KKR Observer (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for paymentother than those initially designated hereunder) bears must be reasonably satisfactory to the number Company at the time of shares of their designation hereunder; and, PROVIDED, FURTHER, that any Person who shall have served as the KKR Observer shall be automatically deemed satisfactory to the Company Common Stock then outstandingfor designation as the KKR Representative. The Company KKR Observer may be changed at any time by the shareholder of the Trust Preferred Purchaser. The initial KKR Representative shall use commercially reasonable efforts to cause Parent’s designees to be elected one of Xxxxxx Xxxxxxx or appointed to the Company’s Board of DirectorsXxxxx X. Xxxxxx, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors initial KKR Observer shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actother.

Board Representation. (a) Subject to applicable LawLaw and to the extent permitted by the requirements of the New York Stock Exchange, immediately upon payment by Offeror for shares of Company Common Stock accepted at if after the Acceptance Time, and from time Time the adoption of this Agreement by the Company’s stockholders is required by Law (including if the conditions to time thereafter as shares of Company Common Stock the Top-Up Option are acquired by Parent not satisfied or Offerorthe Top-Up Option is for any reason deemed to be invalid or unenforceable), Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Company Board of Directors of the Company as will give Offeror Purchaser representation on the Company Board of Directors of the Company of at least that number of directors which equals equal to the product of (i) the total number of directors on the Company Board of Directors (giving effect to the election or appointment of any additional directors pursuant to this SectionSection 2.1(e)) and (ii) the percentage that the number of shares of Company Common Stock Shares beneficially owned by Parent and/or Offeror Purchaser (including for purposes of this Section 1.03 such shares of Company Common Stock all Shares which have been accepted for paymentpayment pursuant to Article III) bears to the number of shares Shares outstanding, and upon the request of Company Common Stock then outstanding. The Parent, the Company shall promptly increase the size of the Company Board or use commercially its reasonable best efforts to cause Parentsecure the resignations of such number of directors as is necessary to provide Parent with such level of representation (the date on which the majority of the Company’s directors are designees to be of Parent that have been effectively elected or appointed to the Company’s Company Board of Directorsin accordance herewith, including, subject to applicable Law and the Company Certificate, increasing the size of the “Board of Directors and/or securing the resignations of incumbent directorsAppointment Date”). Subject to applicable Law, the Company shall use commercially its reasonable best efforts to enable cause individuals designated by Parent to constitute the same percentage as is on the entire Company Board of Directors of the Company (after giving effect to this Section 1.032.1(e)) to be on (i) each committee of the Company Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board board of Directors directors and each committee thereof of each Subsidiary of the CompanyCompany Subsidiary. The Company’s obligations to elect or appoint designees to its the Company Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at At the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a2.1(e) and shall include in the originally filed Schedule 14D-9 and or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. In the event that Parent’s designees are elected or appointed to the Company Board pursuant to this Section 2.1(e), then, until the Effective Time, the Company shall cause the Company Board to maintain at least three directors who are members of the Company Board on the date of this Agreement and who are independent for purposes of Rule 10A-3 under the Exchange Act and applicable requirements of the New York Stock Exchange (the “Independent Directors”); provided, however, that if the number of Independent Directors is reduced below three for any reason, the remaining Independent Director(s) shall be entitled to designate an individual or individuals to fill such vacancy who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall promptly (and in any event within ten (10) Business Days) designate three individuals to fill such vacancies who are independent for purposes of Rule 10A-3 under the Exchange Act and applicable requirements of the New York Stock Exchange, and such individuals shall be deemed to be Independent Directors for purposes of this Agreement; provided, that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s). Notwithstanding anything in this Agreement to the contrary, from and after the Board Appointment Date and prior to the Effective Time, subject to the terms hereof, any amendment or termination of this Agreement by the Company requiring action by the Company Board, any extension by the Company of the time for the performance of any of the obligations or other acts of Parent or Purchaser or waiver of any of the Company’s rights hereunder, will, to the fullest extent permitted by Law, require the concurrence of a majority of the Independent Directors (or in the case where there are two or fewer Independent Directors, the concurrence of one Independent Director).

Board Representation. (a) Subject Promptly upon the purchase of Shares pursuant to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or OfferorOffer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Company Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals is equal to the product of (ia) the total number of directors on the Company Board of Directors (after giving effect to the election of any additional directors designated by Parent pursuant to this Sectionsentence) and (iib) the percentage that the total votes represented by such number of shares Shares in the election of directors of the Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) so purchased bears to the total votes represented by the number of shares of Company Common Stock then Shares outstanding. The In furtherance thereof, the Company shall use commercially reasonable shall, upon request by Parent, promptly increase the size of the Company Board and/or exercise its best efforts to cause secure the resignations of such number of its directors as is necessary to enable Parent’s 's designees to be elected or appointed to the Company’s Company Board of Directors, including, subject and shall take all actions to applicable Law and cause Parent's designees to be so elected to the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directorsBoard. Subject to applicable LawAt such time, the Company shall use commercially reasonable efforts to enable individuals also cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the entire Company Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board Company Board, (ii) each board of Directors directors (or similar body) of each Company Subsidiary (as hereinafter defined) and (iii) each committee (or similar body) of each such board. The Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14f-1 of the Exchange Act in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 to its stockholders such information with respect to the Company and (ii) subject to applicable Law its officers and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with directors as is required by such Section 14(f) of the Exchange Actand Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Subject Parent will supply to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to such Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under 14f-1. The provisions of this Section 1.03(a) 1.3 are in addition to and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. not limit any rights which Acquisition Sub, Parent will supply to the Company, and be solely responsible for, all information or any of their affiliates may have as a holder or beneficial owner of Shares as a matter of law with respect to itself and its officersthe election of directors or otherwise. In the event that Parent's designees are elected to the Company Board, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act.A-3

Board Representation. (a) Subject to applicable LawAt such time beginning 60 days after Investor, immediately upon payment together with its Affiliates, beneficially owns more than 10% of the outstanding Common Stock of the Company, and ending at such time as Investor, together with its Affiliates, beneficially owns less than 65% of the number of Pre-Funded Warrants purchased by Offeror the Investor under the Purchase Agreement (as adjusted for stock splits, recapitalizations and other similar events and including all shares of Company Common Stock accepted at issued upon the Acceptance Timeconversion of the Pre-Funded Warrants to the extent still beneficially owned by the Investor and/or its Affiliates) (such period, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offerorthe “Board Designation Period”), Parent Investor shall be entitled to designate such number of directors, rounded up to the next whole number, one individual (“Investor Designee”) to serve on the Board of Directors Directors. Following any exercise of such right by the Investor, and the appointment of the Investor Designee to the Board of Directors, which appointment the Company agrees to do as soon as reasonably practicable after such exercise, the Company shall include the Investor Designee in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company at each annual or special meeting of the Company’s stockholders at which directors of the same class as the Investor Designee are to be elected and every adjournment or postponement thereof (an “Election Meeting”). The Company will give Offeror representation support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable law, to recommend and include, the Investor Designee in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company at each Election Meeting; provided that, the Company shall have no obligation to support the nomination of or cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company an Investor Designee if the Investor already has an Investor Designee serving as a director on the Board of Directors at the time of the Company Election Meeting and the term of at least that number of directors which equals the product of (i) the total number of directors such Investor Designee as a director on the Board of Directors (giving effect to does not expire at such Election Meeting. In the election of any additional directors pursuant to this Section) and (ii) the percentage event that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected an Investor Designee resigns from his or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of her seat on the Board of Directors and/or securing the resignations of incumbent directors. Subject or is removed or otherwise fails to applicable Lawbecome or ceases to be a director for any reason, the Company shall use commercially reasonable efforts cause the vacancy to enable individuals be filled by the election or appointment of another Investor Designee designated by Parent to constitute the same percentage Investor as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company soon as reasonably practicable in compliance with applicable laws, rules and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Companyregulations. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent Investor will supply to provide the Company, and be solely responsible forin writing, all the information with respect to itself and its officers, directors and Affiliates about any Investor Designee that is reasonably required by Section 14(f) applicable law for inclusion in the Company’s proxy materials for meetings of stockholders promptly after the Company requests such information from the Investor, and Rule 14f-1 under will cause any Investor Designee to submit on a timely basis to the Exchange ActCompany a completed and executed questionnaire in the form that the Company provides to its outside directors generally.

Board Representation. If Sxx X. Xxxxx, Ph.D. ceases to serve as Chairman of the Board of Directors due to (a) Subject Dx. Xxxxx’x resignation as a director due to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up a material adverse change to the next whole numbercondition of Dx. Xxxxx or any member of Dx. Xxxxx’x immediate family or (b) a vote or written consent of stockholders of the Company, to in which the requisite majority for approval of such removal by the stockholders of the Company does not include any stockholders who serve on the Board of Directors or who are Affiliates of the Company as will give Offeror representation any individuals who serve on the Board of Directors of Directors, the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of shall promptly take any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror all actions (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, by increasing the size of the Board of Directors and/or securing Directors) as may be required under the resignations laws of incumbent directorsits state of incorporation, its certificate of incorporation and bylaws and any all other applicable laws set forth by any governmental authority in order to (i) cause, within five (5) Trading Days following Dx. Subject to applicable LawXxxxx’x departure, (x) the election of two directors designated by Genesis, which designees shall be (A) independent under Section 5605(a)(2) of the rules of the Nasdaq Stock Market (the “Independence Rules”), (B) not existing stockholders of the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire date hereof and (C) persons with relevant experience in either the biotechnology, pharmaceutical or healthcare industries, to serve as members of the Board of Directors from the date hereof until such director designees’ resignation, death, removal or disqualification (the “Genesis Designees”) and (y) the election of the Company (after giving effect to this Section 1.03) to be on (i) each committee a chairman of the Board of Directors of the Company who qualifies as an independent director under the Independence Rules and (ii) subject to applicable Law and until the Company CertificateDebentures are either repaid or converted in full, each include the Genesis Designees as nominees for election or re-election as members of the Board of Directors and each committee thereof of each Subsidiary Directors, as the case may be, in the proxy statement to be sent to any holders of the Company. The Company’s obligations capital stock in connection with any annual or special meeting of such holders entitled to appoint designees to its vote on such matters if the re-election of the members of the Board of Directors shall be subject proposed by the Board of Directors in such proxy statement and, in such instance, the Board of Directors shall recommend to compliance with Section 14(f) any such holders of its capital stock entitled to vote at such meeting in such proxy statement the election or re-election, as applicable, of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActGenesis Designees.

Board Representation. (a) Subject From the Closing Date until XL no longer owns at least 20% of the principal amount of the outstanding Debentures, (x) the Company shall cause all of the XL Designees (as defined below) to applicable Law, immediately upon payment by Offeror be nominated for shares election to the board of directors of the Company Common Stock accepted at the Acceptance TimeCompany's next stockholders' meeting and the Company shall support and use its best efforts to cause the election of such individuals to the board of directors of the Company and (y) XL shall have the right to request, and from time upon such request the Company shall cause, the XL Designees to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, elected to serve on the Board boards of Directors directors of each of the Company's direct and indirect Subsidiaries. In addition, all such XL Designees will be permitted to serve on any committees, including any executive committee of the board of directors of the Company as will give Offeror representation and each Subsidiary, unless such XL Designee is not qualified therefor under applicable law, rule or regulation, in which event XL shall have the right to select one individual to observe all such meetings in substitution therefor. "XL Designees" shall mean a number of individuals designated by XL equal to the greater of (x) two and (y) the number derived from multiplying the number of seats on the Board of Directors of the Company of at least that number applicable board of directors times a fraction the numerator of which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that is the number of shares of Company Common Stock beneficially of the Company owned by Parent and/or Offeror XL (including for purposes assuming conversion of this Section 1.03 such shares all Debentures held by XL) and the denominator of Company Common Stock accepted for payment) bears to which is the number of outstanding shares of Company Common Stock then outstandingof the Company on a Fully Diluted Basis (rounding up in the case of any fractions). The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to At any time while an XL Designee is not a member of the Company’s Board 's and each such Subsidiary's boards of Directorsdirectors, includingat the sole discretion of XL, subject to applicable Law XL may appoint a representative of XL, and the Company Certificateand each such Subsidiary will permit such representative, increasing the size to attend all meetings of the Board boards of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors directors of the Company and (ii) subject each such Subsidiary and any committees thereof. XL will continue to applicable Law and have the right to designate the XL Designees for election or appointment to the boards of directors of the Company Certificate, each Board of Directors and each committee thereof such Subsidiary in lieu of each Subsidiary any representative of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActXL.

Board Representation. (a) Subject to applicable LawSection 2.5, immediately upon payment by Offeror for shares the senior member of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Equity Purchaser shall be entitled to designate such number of directorsone person for election to, rounded up to and the next whole number, to serve on the Board of Directors shareholder of the Company Trust Preferred Purchaser shall be entitled to designate one person to attend as will give Offeror representation on a non-voting observer at all meetings of (and to receive all materials and information that voting Directors receive) (the Board of Directors of the Company of at least that number of directors which equals the product of “KKR Observer”), (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and Company Board, (ii) the percentage DP&L Board and (iii) the board of directors of any separate entity or entities formed to hold DP&L’s electricity generation, transmission and/or distribution businesses or any material portion thereof (other than a wholly owned Subsidiary of the Company or DP&L or any of their respective wholly owned Subsidiaries) (collectively, the “Applicable Boards”), and the Company agrees, to the extent permitted by Law to take such action as may be required under applicable Law (A) so that, effective as of the Closing, the Company Board and the DP&L Board shall each consist of eleven members and shall include the KKR Representative, (B) to include in any slate of nominees recommended by the Applicable Boards for election by the shareholders the KKR Representative, (C) to take such action as may be required under applicable Law to cause the initial KKR Representative to be designated to be a member of the class of the Directors on each Applicable Board which is a classified board having the longest remaining term (which in the case of the Company Board shall be the term extending until the 2003 annual meeting of shareholders), (D) to use its reasonable best efforts to cause the election of the KKR Representative to the Applicable Boards, including nominating such individual, or causing its Subsidiaries to nominate such individual, as appropriate, to be elected as a Director of the Applicable Boards and (E) not to take any action that would cause the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror Directors constituting any Applicable Board to be less than eleven at anyone time; provided that any KKR Representative or KKR Observer (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for paymentother than those initially designated hereunder) bears must be reasonably satisfactory to the number Company at the time of shares of their designation hereunder; and, provided, further, that any Person who shall have served as the KKR Observer shall be automatically deemed satisfactory to the Company Common Stock then outstandingfor designation as the KKR Representative. The Company KKR Observer may be changed at any time by the shareholder of the Trust Preferred Purchaser. The initial KKR Representative shall use commercially reasonable efforts to cause Parent’s designees to be elected one of Xxxxxx Xxxxxxx or appointed to the Company’s Board of DirectorsXxxxx X. Xxxxxx, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors initial KKR Observer shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actother.

Board Representation. For so long as the undersigned (aor its subsidiaries) Subject owns a minimum of 5% of the outstanding Common Stock of the Company, the undersigned shall have the right (but not the obligation) to applicable Lawdesignate to the board of directors of the Company up to that number of directors, immediately upon payment by Offeror for as a percentage of the whole board of the Company, as shall be equal to the undersigned's percentage ownership of the outstanding shares of Common Stock. The foregoing calculation shall be made without giving effect to (i) the conversion or exercise of any options, warrants or other convertible securities of the Company held by either the undersigned or any other holder of options, warrants or other convertible securities or (ii) any shares of Common Stock accepted at held in treasury or by any subsidiary of the Acceptance TimeCompany. If the calculation required above would entitle the undersigned to designate a fraction of a director to the board of the Company, and from time to time thereafter as shares the number of Company Common Stock are acquired by Parent or Offeror, Parent directors that the undersigned shall be entitled to designate such number of directors, shall be rounded up to the next highest whole number. Notwithstanding the foregoing percentage requirement, the undersigned will be entitled to serve on appoint at least one director to the Board board of Directors directors of the Company for so long as will give Offeror representation on the Board it owns a minimum of Directors 5% of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company outstanding Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company Such designees shall use commercially reasonable efforts to enable individuals designated by Parent to constitute receive the same percentage compensation as is on the entire Board of Directors of the Company (after giving effect paid to this Section 1.03) to be on (i) each committee of the Board of Directors other non-officer directors of the Company and (ii) subject shall be entitled to applicable Law receive reimbursement for all reasonable costs incurred in attending meetings of the board of directors. The Company hereby agrees to indemnify and hold such designees harmless, to the Company Certificatemaximum extent permitted by law against any and all actions, each Board suits, proceedings, inquiries, arbitrations, investigations, litigation, governmental or other proceedings, domestic or foreign, and awards and judgments arising out of Directors and each committee thereof of each Subsidiary such designees' service as a director of the Company. The Company’s obligations to appoint Company does not presently maintain D&O Insurance for its directors but hereby covenants that it will obtain such insurance for its directors, including the designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Actundersigned, as soon as such becomes available to it on commercially reasonable terms. Subject The Company has further agreed, as a condition to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) sale of the Exchange Act and Rule 14f-1 promulgated thereunderUnits, at to enter into an Indemnity Agreement, in the request form attached hereto, with each of Parentits directors, including the designees of the undersigned. As a further condition of the sale of the Units, the Company shall promptly takedeliver to the undersigned an agreement, in the form of Exhibit 4 attached hereto, signed by shareholders of the Company owning at its expenseleast a majority of the Company's outstanding voting shares in which each such shareholder agrees to vote all shares of voting stock of the Company beneficially held by him, all actions required pursuant to Section 14(f) and Rule 14f-1 under her or it in accordance with the Exchange Act in order to fulfill its obligations under provisions of this Section 1.03(a) and 4. Immediately prior to the sale of the Units, the Company shall include deliver all executed Exhibit 4 agreements it shall have then obtained. The Company covenants that it will deliver the balance of the Exhibit 4 agreements required to be delivered by it, to the undersigned, as soon as practicable following such sale. The Company will cause any persons or entities who in the originally filed Schedule 14D-9 and otherwise timely mail future acquire more than 5% of the outstanding voting stock of the Company to its stockholders all necessary information to comply therewith. Parent will supply deliver a letter in the form of Exhibit 4 to the Companyundersigned; provided, and be solely responsible forhowever, that such obligation shall not apply if all information with respect of such shareholder's shares are acquired in transactions to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under which the Exchange ActCompany is not a party.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at From and after the Acceptance TimeClosing, and from time to time thereafter as shares of until this Agreement is terminated in accordance with its terms, the Company Common Stock are acquired by Parent or Offeror, and the Parent shall take such actions necessary to (i) ensure that (A) Xxxx Xxxxxxx and Xxxxxxx Xxxxxx (the “Fluent Legacy Stockholders”) be entitled to designate such number of directors, rounded up nominate one (1) individual for election to the next whole numberCompany Board (the “RSMC Director”) and (B) Xxxxxxx Xxxxx and Xxxxxxx Xxxxxxx (the “Cogint Legacy Stockholders”) be entitled to nominate one (1) individual for election to the Company Board (the “PFMB Director,” and together with the RSMC Director, including their respective successors, the “Legacy Directors”), provided that the PFMB Director shall be Xxxx Xxxxxxx until the earlier of (a) the second anniversary of the Closing and (b) Xxxx Xxxxxxx’x resignation from his position as the PFMB Director, (ii) elect such Legacy Directors to serve on the Board of Directors as members of the Company Board until their respective successors are elected and qualified or until their earlier resignation, removal or death and (iii) nominate each successor to each Legacy Director as will give Offeror representation on directed by the Board of Fluent Legacy Stockholders or Cogint Legacy Stockholders, as applicable. At the Closing, the Legacy Directors of shall initially be determined by a written notice delivered by the applicable Legacy Stockholders to the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage provided that the number of shares of PFMB director shall be Xxxx Xxxxxxx). From and after the Closing, and until this Agreement is terminated in accordance with its terms, the Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing Parent shall take such actions necessary to ensure that the size of the Company Board of Directors and/or securing the resignations of incumbent shall be seven (7) directors. Subject , which number may be increased pursuant to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors a majority vote of the Company (after giving effect to this Section 1.03) to be on (i) each committee of Board, including the Board of Directors PFMB Director. All remaining members of the Company and Board (iiincluding any increase to the Company Board pursuant to the preceding sentence) subject to shall be determined consistent with applicable Law and rules and regulations of NASDAQ (including that if such remaining members of the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of are elected by the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to may avail itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actof any controlled company exemptions from NASDAQ corporate governance requirements).

Board Representation. (a) Subject The Merger Agreement provides that, promptly upon the purchase of Shares pursuant to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, Offer and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeroruntil the Effective Time, Parent shall be entitled to designate such number of directors, rounded up directors equal to the next whole number, to serve on greater of (a) a majority of the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals plus one and (b) the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially Shares owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Acquisition Company Common Stock accepted for payment) bears to the number of shares Shares outstanding less the number of Company Common Stock then outstandingIndependent Directors (as defined below). The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directorshas agreed, includingupon request by Parexx, subject to applicable Law and the Company Certificate, increasing xx promptly increase the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially its reasonable efforts to enable individuals designated by Parent to constitute secure the same percentage resignations, or the removal, of such number of directors as is on the entire Board of Directors of the Company (after giving effect necessary to this Section 1.03) enable Acquisition Company's designees to be on (i) each committee of elected to the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the cause Acquisition Company's designees to be so elected. The Company’s 's obligations to appoint designees to its the Board of Directors shall be are subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and the rules promulgated thereunder (Schedule III hereto contains the information required under Rule 14f-1 promulgated thereunderunder the Exchange Act). In addition, the Merger Agreement requires the Company to have at all times prior to the request Effective Time two members on the Board who were members of the Board on the date of the Merger Agreement and who are not employees of the Company ("Independent Directors"). Following the election or appointment of the designees of Parent to the Board, but prior to the Effective Time, any permitted termination of the Merger Agreement by the Company, any amendment of the Merger Agreement or the Company's certificate of incorporation or by-laws requiring action by the Board, any extension of time for the performance of any of the obligations or other acts of Parent, and any waiver of compliance with any of the agreements or conditions contained in the Merger Agreement must by authorized by a majority of the Independent Directors as well as a majority of all Board members. The Merger. The Merger Agreement provides that, subject to the terms and conditions set forth in the Merger Agreement and the applicable provisions of the DGCL, Acquisition Company will be merged with and into the Company shall promptly takeat the Effective Time and the separate existence of Acquisition Company will cease. All of the properties, at its expenserights, all actions required pursuant to Section 14(f) privileges, powers and Rule 14f-1 under franchises of the Exchange Act Company and Acquisition Company will vest in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible forall debts, all information with respect liabilities and duties of the Company and Acquisition Company will become the debts, liabilities and duties of the Company. Subject to itself the provisions of the Merger Agreement and its officersapplicable provisions of the DGCL, directors and Affiliates required by Section 14(f) and Rule 14f-1 the closing of the Merger will occur promptly following the satisfaction or, to the extent permitted under the Exchange ActMerger Agreement, waiver of the conditions to the Merger set forth in the Merger Agreement.

Board Representation. Directors of the Company shall be elected annually. The Board shall consist of (ai) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and four individuals as may be designated from time to time thereafter by the HM Partnership (each an "HM Designee"), (ii) four individuals, collectively, as shares of Company Common Stock are acquired may be designated from time to time by Parent or Offerorthe KKR Partnerships (each a "KKR Designee"), Parent shall be entitled to designate such number of directors, rounded up to (iii) the next whole number, to serve on the Board of Directors chief executive officer of the Company as will give Offeror representation on from time to time serving (the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section"Chief Executive Officer") and (iiiv) any Independent Directors (to the percentage 13 13 extent the KKR Partnerships, on the one hand, and the HM Partnership on the other hand, agree that there should be Independent Directors), such Independent Directors to be mutually agreed to between the HM Partnership and KKR Partnerships. If at any time the HM Partnership and its Affiliates beneficially own less than 50% of the aggregate number of shares of Company Common Stock beneficially owned acquired by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to them upon the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size consummation of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company Merger (after giving effect to this Section 1.03the transactions contemplated by the Act III Investment Agreement)(the "HM Shares"), but more than 10% of the then outstanding shares of Stock, then the number of HM Designees shall be reduced to the number (rounded up to the nearest whole number) that is determined by multiplying the number of directors comprising the Board by a fraction, the numerator which is the number of HM Shares, and the denominator of which is the number of then outstanding shares of Stock. The difference between (x) the number of HM Designees that the HM Partnership was permitted to be on (i) each committee of designate to the Board of Directors immediately prior to the application of the Company preceding sentence and (iiy) subject the number of HM Designees that the HM Partnership shall be permitted to applicable Law designate immediately after giving effect to the application of the preceding sentence shall be reallocated to the KKR Partnerships. Notwithstanding anything in this Agreement to the contrary, if at any time the HM Partnership and its Affiliates beneficially own less than 50% of the HM Shares and less than 10% of the then outstanding shares of Stock, then all of the HM Designees that the HM Partnership shall be permitted to designate shall be reallocated to the KKR Partnerships (or, if the last sentence of the next succeeding paragraph shall be applicable, then the number of HM Designees shall be reduced to zero and shall not be so reallocated) and the Company CertificateHM Partnership shall no longer have any rights under this Article IV. If at any time the KKR Partnerships and their respective Affiliates beneficially own less than 50% of the aggregate number of shares of Stock acquired by them upon the consummation of the Merger (after giving effect to the transactions contemplated by the Act III Investment Agreement) (the "KKR Shares"), each but more than 10% of the then outstanding shares of stock, then the number of KKR Designees shall be reduced to the number (rounded up to the nearest whole number) that is determined by multiplying the number of directors comprising the Board by a fraction, the numerator of which is the number of KKR Shares and the denominator of which is the number of then outstanding shares of Stock. The difference between (x) the number of KKR Designees that the KKR Partnerships were permitted to designate to the Board of Directors immediately prior to the application of the preceding sentence and each committee thereof (y) the number of each Subsidiary KKR Designees that the KKR Partnerships shall be permitted to designate immediately after giving effect to the application of the preceding sentence shall be reallocated to the HM Partnership. Notwithstanding anything in this Agreement to the contrary, if at any time the KKR Partnerships and their respective Affiliates beneficially own less than 50% of the KKR 14 14 Shares and less than 10% of the then outstanding shares of Stock, then all of the KKR Designees that the KKR Partnerships shall be permitted to designate shall be reallocated to the HM Partnership (or, if the last sentence of the next preceding paragraph shall be applicable, then the number of HM Designees shall be reduced to zero and shall not be so reallocated) and the KKR Partnerships shall no longer have any rights under this Article IV. The ownership percentages referred to in the two immediately preceding paragraphs will be tested annually as of the record date for the annual meeting of shareholders of the Company, with any then required reduction in the number of HM Designees or KKR Designees (and the related increase in the number of designees of the HM Partnership or the KKR Partnership, as applicable) to occur at the annual meeting of shareholders of the Company. The Company’s obligations to appoint designees to its Board board of Directors shall be subject to compliance with Section 14(f) directors of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) each subsidiary of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly takeconsist of not less than one HM Designee, at its expense, all actions required pursuant to Section 14(f) one KKR Designee and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActChief Executive Officer.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance TimeIf, and from time only if, a financing that is in the form of equity securities of Refocus Group is completed by Verus International, or designees or agents introduced to time thereafter as shares Refocus Group by Verus International, on or prior to December 31, 2004, and such financing results in gross proceeds to Refocus Group in an aggregate amount of Company Common Stock are acquired by Parent or Offerorat least $2,000,000, Parent excluding the outstanding principal balance and interest due under the notes issued pursuant to the Loan Agreement on the date of consummation of such financing, then Verus International shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees one nominee to be elected or appointed to the Company’s Board board of Directorsdirectors of Refocus Group; provided, includinghowever, subject such nominee shall be reasonably acceptable to applicable Law the majority of the members of the board of directors of Refocus Group (as to whom, Andrew P. Merkatz is deemed to be acceptable). Upon such designatiox, Xxxxxxx Xxxxx shall take, or cause to be taken, all action within its power to cause such nominee to be elected or appointed to the board of directors of Refocus Group, including recommending to stockholders of Refocus Group that they vote for the election of such nominee to the board of directors of Refocus Group. Notwithstanding anything in this Agreement to the contrary, in no event shall a nominee designated by Verus International, if such designation is allowed under the terms of this Agreement, be entitled to serve as a director of Refocus Group after December 31, 2006. Verus International hereby agrees that, as a condition to the nomination of any person designated by Verus International under this paragraph 2, Verus International shall cause such nominee to execute an acknowledgment and resignation letter pursuant to which the Company Certificate, increasing nominee acknowledges the size terms of this paragraph and tenders his resignation from the Board of Directors and/or securing effective December 31, 2006. Refocus Group shall, to the resignations fullest extent permitted under applicable law, indemnify and hold harmless, all of incumbent directors. Subject to applicable Lawthe directors of Refocus Group, including the Company shall use commercially reasonable efforts to enable individuals nominee designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company Verus International, against any costs or expenses (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company including reasonable attorneys' fees), judgments, fines, losses, claims, damages and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Lawliabilities incurred in connection with, and subject in amounts paid in settlement of, any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative and wherever asserted, brought or filed, arising out of or pertaining to Parent supplying any acts or omissions, or alleged acts or omissions, by the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act Refocus Group in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Acttheir respective capacities.

Board Representation. So long as CIMSA beneficially owns at least seventy-five percent (a75%) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Purchased Shares (as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors determined pursuant to this Section) and (ii) Rule 13d-3 under the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to Exchange Act), the Company’s Board of Directors, including, subject to applicable Law and Directors (the “Board”) shall take all actions necessary under the Company Certificate, increasing the size Organizational Documents to cause one individual designated by CIMSA to be appointed as a member of the Board and to be nominated for election at each meeting of Directors and/or securing shareholders of the resignations Company pursuant to which directors are elected (each such designated individual, a “CIMSA Designee”). At all times during which a CIMSA Designee is subject to the election of incumbent directors. Subject to applicable Lawshareholders of the Company, the Company and the Board shall use commercially provide such CIMSA Designee with such reasonable efforts to enable individuals designated by Parent to constitute the same percentage support as is on the entire Board of Directors normally afforded to director nominees of the Company (after giving effect recommended to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Companyshareholders. The Company’s obligations to appoint designees to its Board of Directors CIMSA Designee shall be subject to compliance with Section 14(f) the reasonable and good faith approval of the Exchange ActBoard; provided, however, that if the Board does not approve any CIMSA Designee, CIMSA shall be entitled to submit additional designees as required to obtain the Board’s approval. Subject In the event that the CIMSA Designee ceases to applicable Lawserve as a member of the Board prior to the completion of his or her term after being appointed by the Board or elected by the Company’s shareholders, and the resulting vacancy on the Board shall be filled by a person designated by CIMSA, subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) such aforesaid approval of the Exchange Act and Rule 14f-1 promulgated thereunder, Board. The CIMSA Designee shall resign from the Board during his or her term within twenty-four (24) hours of such time that CIMSA ceases to beneficially own at least 75% of the request of Parent, the Company shall promptly take, at its expense, all actions required Purchased Shares (as determined pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 13d-3 under the Exchange Act). The Company covenants and agrees to provide each such CIMSA Designee with indemnification identical to that then enjoyed by the other members of the Board.

Board Representation. The Stockholders, collectively, shall have the right to designate either Leonxxx Xxxxxxx xx Eric Xxxxxxx, xx they may choose, for election to the Company's board of directors by such board at the closing of the transactions contemplated by the Purchase Agreement, to serve until the next annual meeting of the stockholders of the Company. Thereafter, if any one of Leonxxx Xxxxxxx xx Eric Xxxxxxx (ax) Subject to applicable Law, immediately upon payment by Offeror for holds at least 400,000 shares of Company Common Stock accepted at the Acceptance Time, and (which threshold number of shares shall automatically be adjusted from time to time thereafter to reflect increases, decreases or exchanges in, or the distribution of additional or different securities in respect of, the Common Stock as a result of any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction) and (ii) is either an employee of the Company or is subject to the noncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company ((i) and (ii) above, the "Board Qualifications"), the Company agrees to cause such Stockholder to be included in management's slate of nominees for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. If, however, both Leonxxx Xxxxxxx xxx Eric Xxxxxxx xxxt the Board Qualifications, the Stockholders shall choose one of them to be nominated for election to the Company's Board of Directors and the Company agrees to cause such Stockholder so chosen to be included in management's slate of nominees for election at each annual meeting of the stockholders of the Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. Further, for so long as the Stockholders collectively own in the aggregate not less than 800,000 shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such (which threshold number of directorsshares shall automatically be adjusted from time to time to reflect increases, rounded up decreases or exchanges in, or the distribution of additional or different securities in respect of, the Common Stock as a result of any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction), the Company agrees to cause whichever of Leonxxx Xxxxxxx xxx Eric Xxxxxxx xx not a member of the Company's Board of Directors to be invited to attend meetings of the Company's Board of Directors as an observer (so long as he is either an employee of the Company or is subject to the next whole numbernoncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company), to serve on unless the Board of Directors of the Company determines as will give Offeror representation on the Board to any particular meeting or meetings that considerations of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 confidentiality make such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actattendance inappropriate.

Board Representation. (aIn the event the parties identified on Schedule 5(CC) Subject cease to applicable Lawbe members of the Board of Directors, immediately upon payment by Offeror for shares the Company agrees until such time as 90% of Company Common Stock accepted at the Acceptance Timeamount outstanding on the Notes shall have been fully paid, and the Subscribers shall have the right, but not the obligation, from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, in writing an additional nominee to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee a member of the Board of Directors of the Company. The Company will nominate and (ii) subject to applicable Law and secure the Company Certificate, each Board election of Directors and each committee thereof of each Subsidiary such designee as Director of the Company. The All reasonable costs and expenses incurred in connection therewith by any such designated Director shall be reimbursed by the Company to the extent that the Company reimburses such expenses incurred by any directors of the Company’s obligations . It is provided and agreed that the actions and advice of any person while serving pursuant to appoint designees to its this section as a Director at meetings of the Board of Directors shall be subject construed to compliance be the actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with Section 14(f) the provisions of the Exchange ActTransaction Documents. Subject to applicable LawThe relationship between the Company and the Subscribers is, and subject to Parent supplying shall at all times remain, solely that of the Company as promptly as practicable with a purchaser of its securities. The Subscribers neither undertake nor assume any responsibility or duty to the information Company to review, inspect, supervise, pass judgment upon, or inform the Company of any matter in connection with any phase of the Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon their own judgment with respect to itself such matters, and its nomineesany review, officersinspection, directors and affiliates required supervision, exercise of judgment, or information supplied to the Company by Section 14(f) the Subscribers, or any representative or agent of the Exchange Act Subscribers, in connection with any such matter is for the protection of the Subscribers, and Rule 14f-1 promulgated thereunder, at the request of Parent, neither the Company nor any third party is entitled to rely thereon. It shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 be deemed a default of a material obligation under the Exchange Act in order to fulfill its obligations under Notes if Company does not comply with the requirements of this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actsection.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares As set forth in the Articles of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up Amendment to the next whole numberArticles of Incorporation of Front Royal authorizing the Preferred Stock, the holders of record of the Preferred Stock shall have the right, by the vote of a majority of the then outstanding shares thereof, to serve on nominate and elect one director to the Board of Directors of the Company (the "Board"). The Company, PIC and Fort Washington (each on its own behalf and on behalf of any subsequent holder or holders of Preferred Stock subject to the terms and conditions of this Agreement) agree that such director initially shall be Xxxxxxxx. If the holders of the Preferred Stock subsequently vote to nominate or elect a director other than Xxxxxxxx, or if Xxxxxxxx is no longer able or willing to serve as will give Offeror representation on a director of the Board Company, the holders of Directors the outstanding shares of Preferred Stock shall have the right to call a special meeting of the shareholders of the Company for the purpose of at least that number of directors which equals the product of (i) the total number of directors on electing thereat, and the Board shall nominate, such person as is designated by the vote of Directors (giving effect a majority of such holders, to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, includingserve as a director, subject to applicable Law the approval of a majority of the holders of each of the Class A Common Stock and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary Class B Common Stock of the Company, no par value, voting as a single class, which approval shall not unreasonably be withheld. The Company’s obligations rights set forth in this paragraph 1 shall automatically cease to appoint designees to its Board exist, and shall not subsequently be reinstated, if at any time after the date hereof less than 50,000 shares of Directors Preferred Stock shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actoutstanding.

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at At the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee first meeting of the Board of Directors of the Company and (ii) subject to applicable Law and after the Company Certificatedelivery of the Closing Buyer Shares, each currently contemplated for January 31, 2003, the Company’s Board of Directors shall increase the number of Directors which shall constitute the Company’s Board of Directors and each committee thereof of each Subsidiary of the resulting vacancy shall be filled by the Company’s Board of Directors electing Mx. Xxxxxxx as a Class II Director, with a term expiring at the 2003 Annual Meeting of Stockholders. The Company’s obligations to appoint designees to Company and its Board of Directors shall nominate and recommend Mx. Xxxxxxx for election as a Class II Director of the Company at the 2003 Annual Meeting of Stockholders for a term expiring at the 2006 Annual Meeting of Stockholders. At the 2003 Annual Meeting of Stockholders, the Principal Stockholders and the Investors agree to vote or act with respect to their shares of the Company’s common stock so as to elect the Investors’ designee, currently Mx. Xxxxxxx, as a Class II member of the Company’s Board of Directors for a term expiring at the 2006 Annual Meeting of Stockholders, unless this Agreement is terminated before the 2003 Annual Meeting of Stockholders pursuant to Section 2 below; provided, however, that with respect to the foregoing sentence, if the Investors designate a person to serve as director other than Mx. Xxxxxxx, then the person so designated shall be subject to compliance with Section 14(f) the reasonable approval of a majority of the Exchange Act. Subject to applicable Law, and subject to Parent supplying directors of the Company then serving in such capacity, which directors shall not include the director or directors of the Company who is, or was, serving as promptly the previous designee of the Investors on the Company’s Board of Directors. At any other meeting or action by written consent of the Company’s stockholders during the term of this Agreement at or by which the Investors’ designee is proposed to be removed as practicable with a member of the information Company’s Board of Directors, the Principal Stockholders and the Investors shall vote or act with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) their shares of the Exchange Act and Rule 14f-1 promulgated thereunderCompany’s common stock so as to oppose the removal of the Investors’ designee as a member of the Company’s Board of Directors, at the request of Parent, the Company shall promptly take, at its expense, all actions required unless there is cause for such removal pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act1.3.

Board Representation. (a) Subject At the Closing, the Company and the Board shall take all action to applicable Lawcause the Board to be comprised of nine Directors, immediately upon payment which shall include three Directors proposed for nomination by Offeror the Shareholder for shares of Company Common Stock accepted election by the Company’s shareholders at the Acceptance Timeshareholders meeting called for the purpose of approving the issuance of the Purchased Shares to be issued pursuant to the Purchase Agreement. After the Closing Date, the Shareholder shall have the right to propose to the Corporate Governance and Nominating Committee nominees for election to the Board (for purposes of clarity such right shall be in lieu of, and not in addition to, the rights set forth in the preceding sentence) as set forth in Section 2.1(b); provided, however, that the final determination as to the appointment or recommendation to shareholders for election of any Director or any successor Director to the Board or any Committee thereof shall remain in the sole discretion of the Corporate Governance and Nominating Committee, and provided further that in making such determination, the Corporate Governance and Nominating Committee shall apply reasonably and uniform standards consistent with past practices and consistent with the Company’s Corporate Governance Principles as in effect from time to time thereafter as shares time, and provided further that in the event the Corporate Governance and Nominating Committee determines not to appoint or recommend to shareholders the election of Company Common Stock are acquired any Director, any successor Director or any alternative nominee proposed by Parent or Offerorthe Shareholder, Parent the Shareholder shall be entitled to designate nominate an alternative nominee for such number of directors, rounded up directorship until the Corporate Governance and Nominating Committee shall so appoint and recommend to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to shareholders the election of an alternative nominee of the Shareholder. Each such Director or any additional directors pursuant successor Director shall also be required at the time of nomination to this Sectionsatisfy the independence requirements of Nasdaq Rule 4200(a) and (ii) or such similar rules of such other national securities exchange on which the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including is then listed or quoted for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Acttrading).

Board Representation. (a) Subject The Merger Agreement provides that promptly upon the purchase by Parent or any of its subsidiaries pursuant to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance TimeOffer, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offerorthereafter, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) but in no event more than one less than the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (iiCompany) subject to applicable Law and the Company Certificateas will give Parent, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to the Merger Agreement) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being the "Board Percentage"). Subject The Company has agreed, upon request of Parent, to applicable Lawpromptly satisfy the Board Percentage by (i) increasing the size of the Board of Directors of the Company or (ii) using its best efforts to secure the resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors of the Company and to cause Parent's designees promptly to be so elected. Following the election or appointment of Parent's designees pursuant to the Merger Agreement and prior to the Effective Time of the Merger, any amendment or termination of the Merger Agreement, extension for the performance or waiver of the obligations or other acts of Parent or the Purchaser or waiver of the Company's rights thereunder, shall require the concurrence of a majority of the directors of the Company then in office who were directors on the date of the Merger Agreement. Consideration to be Paid in the Merger. The Merger Agreement provides that upon the terms (but subject to the conditions) set forth in the Merger Agreement, the Purchaser will be merged with and into the Company whereupon the separate existence of the Purchaser shall cease, and subject to Parent supplying the Company as promptly as practicable shall be the surviving corporation (the "Surviving Corporation") and shall be a wholly-owned subsidiary of the Parent. In the Merger, each Share (excluding shares owned directly or indirectly by the Company or any of its subsidiaries or by Parent, the Purchaser or any other subsidiary of Parent and holders who have not voted in favor of the Merger or consented to the Merger in writing and who have demanded appraisals for such Shares in accordance with the information Delaware Law) outstanding immediately prior to the time the Certificate of Merger, or if applicable the Certificate of Ownership and Merger, is duly filed with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) the Secretary of the Exchange Act State of Delaware or at such later time as is specified in such Certificate of Merger (the "Effective Time") shall be converted into the right to receive the Merger Consideration in cash, without any interest thereon, less any required withholding taxes. Each share of the capital stock of the Purchaser outstanding immediately prior to the Effective Time shall be converted into and Rule 14f-1 promulgated thereunderbecome one fully paid and nonassessable share of Common Stock, par value $.01 per share, of the Company, with the same rights and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. The Merger Agreement provides that the closing of the Merger shall occur as soon as practicable, but in no event later than five business days after satisfaction or, to the extent permitted under the Merger Agreement, waiver of the conditions to the Merger set forth in the Merger Agreement. Employee Options, Warrants, Class A Exchangeable Preferred Stock and Exchangeable Notes. The Merger Agreement provides that, at the request Effective Time, all outstanding Employee Options (regardless of whether or not such options have vested) shall either (i) be cancelled and each holder of a cancelled option shall be entitled to receive, in consideration for the cancellation of such option, an amount in cash equal to the product of (x) the number of Shares previously subject to such option and (y) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such option or (ii) if elected by such holder, and if this option is made available by Parent, such option will convert into options or other rights to acquire shares of the common stock of Parent, on terms determined in good faith by Parent to have substantially the same value as the value of such option. The Merger Agreement further provides that at or prior to the Effective Time, the Company shall use its reasonable best efforts to cause each holder of the Warrants that are then outstanding to be exercised for Shares. At the Effective Time, proper provision shall be made for discharging all obligations under all outstanding unexercised Warrants by providing that each holder of a Warrant shall be entitled to solely receive, in consideration for the exercise and cancellation of such Warrant, an amount in cash equal to the product of (x) the number of shares previously subject to such Warrant and (y) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such Warrant. In addition, at or prior to the Effective Time, with the prior consent of Parent, the Company shall promptly takegive any required notice to redeem, at its expenseand redeem or deposit funds sufficient to redeem, all actions required of the outstanding shares of Class A Exchangeable Preferred Stock pursuant to Section 14(fthe terms of ASAA International, Inc.'s (the issuer of such stock and a wholly-owned subsidiary of the Company) Certificate of Incorporation. At or prior to the Effective Time, with the prior consent of Buyer, the Company shall give any required notice to redeem, and Rule 14f-1 under redeem or deposit funds sufficient to redeem all of the Exchangeable Notes pursuant to the terms thereof. Stockholder Meeting. The Merger Agreement provides that unless Purchaser acquires at least 90% of the outstanding Shares in the Offer, if required by applicable law, the Company shall cause a special meeting of the Company's stockholders (the "Company Stockholder Meeting") to be duly called and held as soon as reasonably practicable after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve the Merger Agreement and the transactions contemplated thereby. At the Company Stockholder Meeting, Parent shall cause all the shares of the Company then owned by Parent and the Purchaser and any of their subsidiaries or affiliates to be voted in favor of the Merger. If the Purchaser acquires at least 90% of the outstanding Shares of the Company in the Offer, the Parent shall cause the Merger to be effected without a vote of the Company's stockholders in accordance with the provisions of Delaware Law. Representations and Warranties. The Merger Agreement contains various representations and warranties of the parties thereto. These include representations and warranties by the Company with respect to (i) due incorporation, existence, good standing, corporate power and authority or qualifications of the Company and subsidiaries of the Company; (ii) capitalization of the Company, including the number of shares of capital stock of the Company outstanding, the number of shares reserved for issuance on the exercise of options and similar rights to purchase shares; (iii) the authorization, execution, and delivery of the Merger Agreement and the consummation of transactions contemplated thereby, and the validity and enforceability thereof; (iv) subject to certain exceptions, the absence of consents and approvals necessary for consummation by the Company of the Merger, and the absence, except as disclosed, of any violations, breaches or defaults which would result from compliance by the Company with any provision of the Merger Agreement; (v) compliance with the Securities Act and the Exchange Act, in connection with the Company SEC Reports (as defined in the Merger Agreement) filed by the Company with the Commission; (vi) compliance with the Exchange Act of the Company Disclosure Documents (as defined in order the Merger Agreement), including the Schedule 14D-9; (vii) the absence of certain changes which would constitute a change or effect that is or would be materially adverse to fulfill the business, results of operations or financial condition of the Company and its obligations under this Section 1.03(asubsidiaries taken as a whole ("Company Material Adverse Effect") and shall include the Company's conduct of business in the originally filed Schedule 14D-9 ordinary course of business consistent with past practices; (vii) except as disclosed, the absence of pending litigation or violation of any law by the Company which is reasonably likely to have a Company Material Adverse Effect or which seeks to, or is reasonably likely to delay or prevent the consummation of the Offer or the Merger; (viii) certain employee benefit and otherwise timely mail ERISA matters; (ix) certain tax matters; (x) certain environmental matters; (xi) receipt of a financial opinion of DLJ; (xii) certain matters relating to its stockholders all necessary information affiliate transactions; (xiii) certain labor matters and (xiv) certain matters related to comply therewithreal property. Parent will supply to and the CompanyPurchaser have also made certain representations and warranties, and be solely responsible for, all information including with respect to itself (i) due incorporation, existence, good standing, corporate power and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under authority or qualifications of the Exchange Act.Company and

Board Representation. Section 2.01(a) of the Investor Rights Agreement is hereby amended and restated in its entirety to read as follows: “So long as the sum of the number of Ordinary Shares and the number of Ordinary Shares into which the then outstanding Note may be converted, in each case, beneficially owned by the Investor, together with its Subsidiaries, constitutes no less than 9,857,028 of the issued and outstanding Ordinary Shares, (a) Subject subject to applicable Lawadjustment for any share split, immediately upon payment by Offeror for shares share dividend, recapitalization, reclassification or similar transaction of the Company Common Stock accepted at made in respect of any such Ordinary Shares), the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Investor shall be entitled to designate such number of directors, rounded up one (1) director to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on (such director, or such other individual who may be designated by the Investor from time to time, the “Investor Director”), and the Company shall arrange for the appointment or election of such Investor Director to the Board of Directors of as soon as practicable after the Investor notifies the Company of its designation of the Investor Director and following receipt by the Company of all documentation requested by the Company reasonably required for the appointment of the Investor Director but in no event later than thirty (30) days after the receipt of such notification, including convening a meeting of the Board or obtaining resolutions in writing signed by all directors pursuant to the Constitution and appointing such Investor Director to the Board, who shall hold such office until the next annual general meeting in accordance with the Company’s Constitution and shall be re-appointed by the Company for election at least that number such meeting in accordance with Section 2.01(e) below, and in the case of directors which equals the product of an election, (i) nominating such individual to be elected as a director as provided herein, (ii) using best efforts to ensure, and to the total number of directors on extent permitted by Applicable Law and the Board of Directors (giving effect Company’s Constitution, recommending to the Shareholders, the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears Investor Director to the number Board in any meeting of shares Shareholders to elect directors, including soliciting proxies in favor of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the election of the Investor Director, (iii) including such nomination regarding such individual in the Company’s Board notice for any meeting of DirectorsShareholders to elect directors, includingand (iv) if necessary, subject to applicable Law and the Company Certificate, increasing expanding the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations in order to appoint designees to its Board of Directors the Investor Director; provided, however, that the Investor Director candidate shall be subject to compliance with Section 14(f) the approval of the Exchange Act. Subject to applicable LawBoard, which approval shall not be unreasonably withheld, and further subject to Parent supplying the election by the Shareholders of the Company as promptly as practicable with to the information with respect to itself and its nominees, officers, directors and affiliates extent required by Section 14(f) of the Exchange Act Applicable Law and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act’s Constitution.”

Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company and the Purchaser shall use commercially take all reasonable efforts action within their respective powers to cause Parent’s designees one person named by the Purchaser to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee a member of the Board of Directors of the Company (the "PURCHASER DIRECTOR") to serve for a period commencing on the date that the Company obtains directors' and officers' liability insurance pursuant to Section 8.3 (iior such date after the Closing Date as the Purchaser waives the requirement of such directors' and officers' liability insurance) subject and ending on the third anniversary of the Closing Date, PROVIDED, that the Purchaser's right to applicable Law appoint a member to the Board of Directors of the Company shall be extended to the Mandatory Redemption Date if the Company does not complete a Qualifying Public Offering. At such time as the Purchaser and its affiliates no longer own any Shares, the Purchaser shall cause the Purchaser Director to resign from the Company's Board of Directors. The reasonable actions required of the Company and the Company CertificatePurchaser in this Section 8.2 shall include, each without limitation, to the extent within their respective powers, the nomination of the Purchaser Director, the execution of written consents, the calling of special meetings, the removal of directors, the filling of vacancies on the Board of Directors and each committee thereof the waiving of each Subsidiary notice. During the period from the Closing Date until the term on the Board of Directors of the individual named by the Purchaser as the Purchaser Director begins, such individual shall receive all notices and materials sent to the Board of Directors of the Company. The Company’s obligations , shall be entitled to appoint designees to its attend all meetings of the Board of Directors as an observer, and shall be subject entitled to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, receive compensation and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required benefits pursuant to Section 14(f8.2(b) and Rule 14f-1 under as though he were a member of the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActBoard of Directors.

Board Representation. (a) Subject to applicable LawEffective as of the First Closing Date, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as Seller will give Offeror representation on appoint Xxxxxxx X. Xxxx and Xxxxxxx X. Xxxxxxx to the Board of Directors of the Company Seller, each to fill an existing vacancy on the Seller's Board of at least that number Directors until the next Annual Meeting of directors which equals the product Stockholders of the Seller or until their earlier resignation, retirement, or death. Until the first to occur of (i) the total number passage of directors on five calendar years after the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and First Closing Date, (ii) the percentage that date (if any) on which the number Purchaser and all Persons controlling, controlled by, or under common control with the Purchaser no longer collectively own at least five percent of shares the outstanding Seller Common Stock, and (iii) the occurrence of Company Common Stock beneficially owned a Purchaser Breach (as hereinafter defined) (the "Corporate Governance Period"), the Seller shall nominate two individuals designated by Parent and/or Offeror (including the Purchaser for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears election to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Seller's Board of Directors; provided, includinghowever, subject to applicable Law and that notwithstanding the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawforegoing, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of Purchaser agrees that the Board of Directors of the Company Seller shall not be required to so nominate any individual designated by the Purchaser (a) with respect to whom disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Exchange Act that was subject, directly or indirectly, to the disclosure requirements of either Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing, in compliance with Item 401(f) of Regulation S-K, Item 401(d) of Regulation S- B, or any successor provision of any of the foregoing, or (b) who does not agree in writing to such nomination and (iito serve as a Director of the Seller if elected as such by the stockholders of the Seller. In addition, during the Corporate Governance Period, the Seller will appoint one designee of the Purchaser to the Advisory Committee to the Seller's Board of Directors; provided, however, that notwithstanding the foregoing, the Purchaser agrees that the Seller shall not be required to so appoint any individual designated by the Purchaser with respect to whom, if a Director of the Seller, disclosure would have to be made in any report or proxy material required to be filed with the Commission pursuant to the Exchange Act that was subject, directly or indirectly, to the disclosure requirements of either Item 401(f) subject of Regulation S-K, Item 401(d) of Regulation S-B, or any -30- successor provision of any of the foregoing, in compliance with Item 401(f) of Regulation S-K, Item 401(d) of Regulation S-B, or any successor provision of any of the foregoing. Notwithstanding any provision of this Agreement to applicable Law and the Company Certificatecontrary, each however, in the event that neither a Second Closing nor a Third Closing occurs hereunder, then the Seller shall only be required pursuant to this Section 6.2 to nominate one such individual designated by the Purchaser for election to the Seller's Board of Directors and each committee thereof of each Subsidiary for the remainder, if any, of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActCorporate Governance Period.

Board Representation. (a) Subject to applicable LawFrom and after the Closing, immediately upon payment by Offeror for until such time as the Purchaser Parties collectively no longer Beneficially Own a number of shares of Company Purchased Shares equal to (i) at least ten percent (10%) of the outstanding shares of Common Stock, determined on an As-Converted Common Stock accepted at basis (provided, that, for purposes of calculating the Acceptance Time, and from time to time thereafter as shares of Company percentage As-Converted Common Stock are acquired by Parent or Offerorownership for this Section 4.8, Parent any Exempted Securities shall be excluded and deemed not outstanding), the Purchaser shall be entitled to designate such number two (2) persons, who shall be Partners, Managing Directors, Advisors or Principals of directorsthe Purchaser, rounded up CD&R or any CD&R Affiliate and reasonably acceptable to the next whole numberCompany at the time of such designation, to serve on the Company Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect such individuals who are so reasonably acceptable to the election of any additional directors pursuant to this SectionCompany, the “Purchaser Designees” and each a “Purchaser Designee”) and (ii) at least five percent (5%) (but less than the 10% contemplated in the foregoing clause (i)) of the outstanding shares of Common Stock, determined on an As-Converted Common Stock basis (provided, that, for purposes of calculating the percentage As-Converted Common Stock ownership for this Section 4.8, any shares issued pursuant to clauses (1), (2) and (5) of the definition of Exempted Security shall be excluded and deemed not outstanding), the Purchaser shall be entitled to designate one (1) Purchaser Designee. At such time that the number Purchaser is no longer entitled to designate one or both Purchaser Designees pursuant to the previous sentence, the Purchaser shall promptly cause one or both Purchaser Designees, as applicable, to offer to resign from the Company Board. The Purchaser Designees shall initially be those persons named on Schedule 4.8(a)(ii) of shares this Agreement (the “Initial Purchaser Designees”), each of Company Common Stock beneficially owned by Parent and/or Offeror (including whom has been determined to be reasonably acceptable to the Company. A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Section 1.03 Agreement for the remainder of such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parentperson’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and term on the Company CertificateBoard or, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawif earlier, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Companydeath or resignation. The Company’s obligations to appoint designees have any Purchaser Designee appointed to its the Company Board or nominate any Purchaser Designee for election as a director at any meeting of Directors the Company’s stockholders pursuant to this Section 4.8, as applicable, shall in each case be subject to compliance with Section 14(f) such Purchaser Designee’s satisfaction of all requirements regarding service as a director of the Exchange Act. Subject to Company under applicable Law, and subject to Parent supplying the Company stock exchange rules regarding service as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) a director of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible forthe Company’s corporate governance or other guidelines and director onboarding and membership requirements, in each case, that are generally applicable to all directors. The Purchaser Parties will cause each Purchaser Designee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations and provide such information as the Company Board may reasonably request to determine the Purchaser’s Designee’s eligibility and qualification to serve as a director of the Company Board and otherwise comply with respect the corporate governance or other guidelines and director onboarding and membership requirements of the Company that are generally applicable to itself and its officers, all directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actthereof.

Board Representation. (a) Subject From the Closing Date -------------------- until XL no longer owns at least 20% of the principal amount of the outstanding Debentures, (x) the Company shall cause all of the XL Designees (as defined below) to applicable Law, immediately upon payment by Offeror be nominated for shares election to the board of directors of the Company Common Stock accepted at the Acceptance TimeCompany's next stockholders' meeting and the Company shall support and use its best efforts to cause the election of such individuals to the board of directors of the Company and (y) XL shall have the right to request, and from time upon such request the Company shall cause, the XL Designees to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, elected to serve on the Board boards of Directors directors of each of the Company's direct and indirect Subsidiaries. In addition, all such XL Designees will be permitted to serve on any committees, including any executive committee of the board of directors of the Company as will give Offeror representation and each Subsidiary, unless such XL Designee is not qualified therefor under applicable law, rule or regulation, in which event XL shall have the right to select one individual to observe all such meetings in substitution therefor. "XL Designees" shall mean a number of individuals designated by XL equal to the greater of (x) two and (y) the number derived from multiplying the number of seats on the Board of Directors of the Company of at least that number applicable board of directors times a fraction the numerator of which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that is the number of shares of Company Common Stock beneficially of the Company owned by Parent and/or Offeror XL (including for purposes assuming conversion of this Section 1.03 such shares all Debentures held by XL) and the denominator of Company Common Stock accepted for payment) bears to which is the number of outstanding shares of Company Common Stock then outstandingof the Company on a Fully Diluted Basis (rounding up in the case of any fractions). The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to At any time while an XL Designee is not a member of the Company’s Board 's and each such Subsidiary's boards of Directorsdirectors, includingat the sole discretion of XL, subject to applicable Law XL may appoint a representative of XL, and the Company Certificateand each such Subsidiary will permit such representative, increasing the size to attend all meetings of the Board boards of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors directors of the Company and (ii) subject each such Subsidiary and any committees thereof. XL will continue to applicable Law and have the right to designate the XL Designees for election or appointment to the boards of directors of the Company Certificate, each Board of Directors and each committee thereof such Subsidiary in lieu of each Subsidiary any representative of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange ActXL.

Board Representation. (a) Subject to applicable LawThe parties hereto acknowledge and agree that each of the Original Voting Investors (or Affiliates, immediately upon payment by Offeror for shares directors and employees of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent such Original Voting Investor) shall be entitled to designate (i) designate, on behalf of the Voting Investors, an individual to serve as a director of the Company (each a "Designated Director"), (ii) remove its Designated Director, and (iii) replace its Designated Director in the event of a vacancy created by such number Designated Director. Such rights of directorsdesignation, rounded up removal and replacement shall terminate if the Original Voting Investor (or Affiliates, directors and employees of such Investor) owns less than twenty-five percent (25%) of the Securities that such Investor originally purchased from USOL pursuant to that certain Subscription Agreement dated July 21, 1999, by and between the Investor and USOL. Upon termination of such rights of designation, removal and replacement, the director position originally designated by an Original Voting Investor shall become a director position to be filled by the holders of Company common stock. Each of the Original Voting Investors hereby designates the individual identified opposite its name on EXHIBIT C to act as its initial Designated Director. Each Investor entitled to vote its shares of Company Preferred Stock shall vote its shares of Company Preferred Stock at any regular or special meeting of stockholders of the Company or in any written consent executed in lieu of such a meeting of stockholders and shall take all other actions (including using its best efforts to cause the board of directors of the Company to take all actions) necessary to give effect to the next whole numberagreements contained in this Agreement (including, without limitation, the election of the Designated Directors provided for herein) and to serve on ensure that the Board certificate of Directors incorporation and bylaws of the Company as will give Offeror representation on in effect at any time hereafter do not conflict in any respect with the Board provisions of Directors this Agreement. In order to effectuate the provisions of this Agreement, each Investor hereby agrees that when any action or vote is required to be taken by such Investor pursuant to this Agreement, such Investor shall use its best efforts to call, or cause the appropriate officers and directors of the Company to call, a special or annual meeting of at least that number stockholders of directors which equals the product Company, as the case may be, or execute or cause to be executed, a consent in writing in lieu of (iany such meetings pursuant to applicable corporate law. To the extent this Section 4.4(a) the total number of directors on the Board of Directors (giving effect does not apply to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company, Sections 4.1 and 4.2 USOL HOLDINGS, INC. The Company’s obligations AGREEMENT AMONG INVESTORS shall govern the Investors' vote. If any Original Voting Investor transfers less than all of its Company Preferred Stock to appoint designees one or more Affiliates, directors or employees of such Original Voting Investor, then the right to its Board of Directors designate, remove and replace a Designated Director shall be subject to compliance with Section 14(f) of determined, as among the Exchange Act. Subject to applicable Law, Original Voting Investor and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officerssuch Affiliates, directors and affiliates required or employees, by Section 14(f) agreement of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actsuch parties.

Board Representation. (a) Subject to applicable LawFor so long as the Purchasers hold, immediately upon payment by Offeror for shares of Company Common Stock accepted at directly or indirectly, any Shares, the Acceptance Time, Purchasers (collectively and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent not individually) shall be entitled to designate such to, at each annual meeting of the Company’s shareholders, nominate a number of directorsdirectors (such Person(s), rounded up to the next whole number, “Purchaser Designee(s)”) to serve on the Board of Directors (such number of directors rounded down or up to the nearest whole number (which may be zero) (e.g., if such number equaled 0.5, the Purchasers would be entitled to one Purchaser Designee, and if such number equaled 0.49, the Purchasers would be entitled to zero Purchaser Designees) equal to the number of current directors multiplied by a fraction, the numerator of which will be the number of full shares of Common Stock into which the then outstanding Shares held, directly or indirectly, by the Purchasers could be converted at the then applicable Conversion Rate (as defined in the Certificate of Amendment), and the denominator of which will be the sum of (1) the number of shares of Common Stock then outstanding plus (2) the number of full shares of Common Stock into which the then outstanding Shares held, directly or indirectly, by the Purchasers could be converted at the then applicable Conversion Rate; provided, however, that such nomination is subject to such Purchaser Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable Law or stock exchange rules regarding service as will give Offeror representation a director and such other criteria and qualifications for service as a director applicable to all directors of the Company and in effect from time to time. In the event that a Purchaser Designee is nominated, the Company shall (x) include such Purchaser Designee in its slate of nominees for election to the Board of Directors at each annual meeting of the Company’s shareholders and (y) recommend that the Company’s shareholders vote in favor of the election of the Purchaser Designee(s). The Company shall take all reasonably necessary actions to ensure that, at all times when a Purchaser Designee is eligible to be appointed or nominated, there are sufficient vacancies on the Board of Directors to permit such designation. Notwithstanding the foregoing, the rights of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations Purchasers under this Section 1.03(a5.6(a) shall terminate immediately at such time as the Purchasers (collectively and shall include in the originally filed Schedule 14D-9 and otherwise timely mail not individually) cease to its stockholders all necessary information to comply therewith. Parent will supply to the Companyown, and be solely responsible fordirectly or indirectly, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Actany Shares.