Common use of Board Representation Clause in Contracts

Board Representation. (a) Contemporaneously with or prior to Closing, and as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) above. (b) Seller hereby agrees to vote all of its shares of Common Stock in favor of the matters described in (a) above, including the election of the Continuing Directors.

Board Representation. (a) Contemporaneously Effective upon the acceptance for payment of any Shares pursuant to the Offer, 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 Merger Subsidiary, subject to compliance with or prior Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to Closing, and as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: product of (i) (A) not less than four members of Buyer's board the total number of directors shall have submitted their resignations, effective as on the Board of Directors (giving effect to the Closing, election of any additional directors pursuant to this section) and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions the percentage that the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the effect that, at the next meeting number of BuyerShares outstanding. The Company shall take all actions necessary to cause Parent's shareholders, designees to be held no later than June 30elected or appointed to the Company's Board of Directors, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in including increasing the size of the board Board of Directors and/or securing the resignations of incumbent directors. The Company shall take all action required pursuant to nine directors, Section 14(f) of the Exchange Act and (B) the election of directors including five nominees by Seller Rule 14(f)-1 promulgated thereunder in order to fulfill its obligations under this Section 2.03 and four nominees by Buyer, or shall include in the event Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith; provided, however, that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior Parent shall provide to the Closing shall have given Seller an irrevocable proxy Company on a timely basis all necessary information to be included in such information statement with respect to Parent's designees. Prior to the form mailing of Exhibit D annexed hereto the Schedule 14D-9 to vote such memberthe Company's shares of Common Stock stockholders, Parent will supply to the Company in writing and be solely responsible for the matters any information with respect to itself and at the shareholder meeting described in its nominees, officers, directors and Affiliates required by Section 5.6(a)(ii14(f) aboveand Rule 14(f)-1. (b) Seller hereby agrees to vote all of its shares of Common Stock in favor of the matters described in (a) above, including Following the election or appointment of Parent's designees pursuant to Section 2.03 and until the Effective Time, the Company's Board of Directors shall have at least two directors who are directors on the date of this Agreement (the "CONTINUING DIRECTORS"); provided that in the event that the number of Continuing Directors shall be reduced below two for any reason whatsoever, any remaining Continuing Directors (or Continuing Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Continuing Directors for purposes of this Agreement. The approval of the Continuing Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company (even if the Continuing Directors do not constitute a majority of all directors then in office), shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any amendment of the certificate of incorporation or bylaws of the Company and any exercise or enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company.

Board Representation. (a) Contemporaneously with or prior to Closing, and as a condition precedent to Seller's obligations to consummate From the transactions contemplated by date of this Purchase Agreement, the following Company and, after the Effective Time, the Surviving Corporation, shall have occurredtake all Necessary Actions such that: (i) (A) not less than four members of Buyer's board of directors Immediately following the Effective Time, the Sponsor Designee shall have submitted their resignations, effective serve as a Class III director of the Closing, Company and four people designated by Seller a director of the Surviving Corporation for a term expiring at the third annual meeting of stockholders of the Company following the Effective Time (the “First Term”); provided that if the Charter shall have been nominated and elected amended to fill remove the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman classification of the Board;, the Company shall take all Necessary Actions such that the Sponsor Designee shall serve as a director of the Company until the end of the First Term. (ii) Buyer's board So long as the Sponsor and its Permitted Transferees collectively hold at least 50% of the Sponsor Shares, the Sponsor Designee shall have adopted resolutions to be re-nominated for election as a Class III director of the effect that, Company at the next third annual meeting of Buyer's shareholdersstockholders of the Company following the Effective Time and shall serve as a Class III director of the Company and a director of the Surviving Corporation for a term expiring at the sixth annual meeting of stockholders of the Company following the Effective Time (the “Second Term”); provided, that if the Sponsor Designee is not elected to be held no later than June 30, 1997serve as a Class III director of the Company, the following matters (in addition Company shall take all Necessary Actions to any other matters which appoint the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 Sponsor Designee as a Class III director of the by-laws to increase in Company, including increasing the size of the board Board and appointing the Sponsor Designee to nine directorsfill the vacancy created by such increase; provided, and (B) further, that if the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing Charter shall have given Seller an irrevocable proxy in been amended to remove the form classification of Exhibit D annexed hereto to vote the Board, the Company shall take all Necessary Actions such member's shares that the Sponsor Designee shall serve as a director of Common Stock for the matters and at Company until the shareholder meeting described in Section 5.6(a)(ii) aboveend of the Second Term. (b) Seller hereby The Company agrees not to vote take, directly or indirectly, any actions that would frustrate, obstruct or otherwise affect the provisions of this Section 7. (c) The Company agrees that any director serving on the Board pursuant to this Section 7 shall be entitled to the same rights and privileges applicable to all of its shares of Common Stock in favor other members of the matters described in (a) above, including the election Board generally or to which all such members of the Continuing DirectorsBoard are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of such director and provide such director with directors’ and officers’ liability insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws or other organizational documents of the Company, any indemnification agreement with such director, applicable Law or otherwise; provided, that upon removal or resignation of such director for any reason, the Company shall take all actions reasonable necessary to extend such directors’ and officers’ liability insurance coverage for a period of not less than six (6) years from any such event in respect of any act or omission occurring at or prior to such event.

Board Representation. (a) Contemporaneously with The Board shall consist of up to nine members. The Purchaser shall be entitled to designate nominees for election or prior appointment to Closing, and the Board (the “Purchaser Representatives”) as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurredfollows: (i) so long as the Purchaser holds at least 90,000 Convertible Preferred Shares (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as or the corresponding number of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman Common Shares issued upon conversion of the BoardConvertible Preferred Shares), it shall be entitled to designate three Purchaser Representatives; (ii) Buyer's board shall have adopted resolutions to so long as the effect that, Purchaser holds at least 45,000 Convertible Preferred Shares (or the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 corresponding number of the by-laws to increase in the size Common Shares issued upon conversion of the board Convertible Preferred Shares), it shall be entitled to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors")designate two Purchaser Representatives; and --------------------and (iii) Each member so long as the Purchaser holds at least 22,500 Convertible Preferred Shares (or the corresponding number of Buyer's boardthe Common Shares issued upon conversion of the Convertible Preferred Shares), immediately prior it shall be entitled to designate one Purchaser Representative. The parties hereto acknowledge and agree that the Purchaser is entitled to appoint certain designees to the Closing Company's Board of Directors pursuant to the terms of the Special Voting Preferred Shares and that this provision is intended to be in furtherance of such rights. In no event will this Section 2.1 be construed to duplicate the rights granted to the Purchaser pursuant to the terms of the Special Voting Preferred Shares. The Purchaser shall have given Seller an irrevocable proxy in not Transfer any of the form Special Voting Preferred Shares. In the event that the Purchaser no longer holds any Special Voting Preferred Shares and is therefore not entitled to elect directors to the Company’s Board of Exhibit D annexed hereto Directors pursuant to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in terms thereof, this Section 5.6(a)(ii) above2.1 shall be controlling. (b) Seller hereby agrees The Purchaser acknowledges that three Purchaser Representatives were elected to vote all of its shares of Common Stock in favor the Board at the Meeting. Subject to the Purchaser’s Representative(s) consenting and writing to serve as a director of the matters described in (aCompany, the Company shall cause the Purchaser Representative(s) above, including to be included as nominees proposed by the Board to the Shareholders for election to the Board at each future meeting of the Shareholders where directors are to be elected by Shareholders. The Company shall use its reasonable commercial efforts to cause the election of such Purchaser Representative(s) at such meetings and shall solicit proxies in favour of the Continuing Directorselection of such Purchaser Representative(s) at such meetings. (c) The Purchaser shall advise the Company of the identity of any Purchaser Representative at least 50 days prior to any meeting of Shareholders at which directors of the Company are to be elected or within 10 days of being notified of the record date for such a meeting. If the Purchaser does not advise the Company of the identity of any Purchaser Representative prior to such deadline, then the Purchaser will be deemed to have nominated its encumbent nominee. Any nominations by the Purchaser shall be subject to such nominee being acceptable to the Company’s corporate governance and nominating committee, acting reasonably. (d) In the event that any Purchaser Representative shall cease to serve as a director of the Company, whether due to such Purchaser Representative’s death, disability, resignation or removal, the Company shall cause the Board to appoint a replacement Purchaser Representative designated by the Purchaser to fill the vacancy created by such death, disability, resignation or removal. (e) The Purchaser shall promptly notify the Company in writing if ceases to hold at least 90,000, 45,000 or 22,500, as the case may be, Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares). In addition, the Purchaser shall deliver a certificate to the Company, from time-to-time as the Company shall reasonably request, certifying the number of securities of the Company beneficially owned by the Purchaser as at the date of such certificate.

Board Representation. (a) Contemporaneously with or prior Subject to Closingapplicable Law and to the extent permitted by the NYSE, and promptly upon the acceptance for payment of any Shares pursuant to the Offer, 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 a condition precedent will give Merger Subsidiary representation on the Board of Directors of the Company equal to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: product of (i) (A) not less than four members of Buyer's board the total number of directors shall have submitted their resignations, effective as on the Board of Directors (giving effect to the Closing, election of any additional directors pursuant to this Section) and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions the percentage that the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the effect that, at the next meeting number of BuyerShares outstanding. The Company shall take all actions necessary to cause Parent's shareholders, designees to be held no later than June 30elected or appointed to the Company's Board of Directors, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in including increasing the size of the board Board of Directors and/or securing the resignations of incumbent directors (including, if necessary, to nine directorsensure 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, and (B) the election of directors including five nominees by Seller and four nominees by BuyerCompany shall, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing 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 have given Seller an irrevocable proxy 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 2.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) 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. 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 fulfil its obligations under this Section 2.03(a) and shall include in the form of Exhibit D annexed hereto Schedule 14D-9 or otherwise timely mail to vote such member's shares of Common Stock for its stockholders all necessary information to comply therewith. Parent will supply to the matters Company, and at 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 shareholder meeting described in Section 5.6(a)(ii) aboveExchange Act. (b) Seller hereby agrees Notwithstanding the provisions of Section 2.03(a), following the election or appointment of Parent's designees pursuant to vote all Section 2.03(a) and until the Effective Time, the Company shall use its commercially reasonable efforts to cause its Board of Directors to have at least two directors who are directors on the date hereof and who are not Affiliates, stockholders or employees of Parent or any of its shares Subsidiaries (the "Independent Directors"); provided that if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Common Stock Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that the remaining Independent Directors shall fill such vacancies as soon as practicable, but in favor any event within ten Business Days, and further provided that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s), provided further that if no Independent Director then remains, the other directors shall designate two Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Parent, not to be unreasonably withheld or delayed. (c) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the matters described in Independent Directors shall be required to authorize (a) aboveand such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including the election any action by any other director of the Continuing Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary and any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Subsidiary under this Agreement or any other action by the Company's Board of Directors under or in connection with this Agreement. The Independent Directors shall have full power solely with respect to the matters set forth in the previous sentence to be approved by the Independent Directors and in connection herewith the Independent Directors shall be authorized, on behalf of and at the expense of the Company, to retain one law firm and other advisors.

Board Representation. (a) Contemporaneously with or prior to Closing, and as a condition precedent to Seller's obligations to consummate Effective on the transactions contemplated by this Purchase Agreementday after the Note Closing Date, the following Company shall have occurred: increase by one (i1) (A) not less than four the number of members of Buyer's board the Board of directors shall have submitted their resignations, effective as Directors of the Closing, Company and four people shall elect and appoint a representative of Purchaser designated by Seller shall have been nominated Purchaser and elected reasonably acceptable to fill the vacancies created by such resignations Company (the "Seller's DesigneesPURCHASER REPRESENTATIVE") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, newly created directorship. The Company and (B) Purchaser agree that ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director will be the initial Purchaser Representative. From and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) after the election of directors including five nominees by Seller Purchaser Representative as a Director of the Company, and four nominees by Buyerfor as long 25 as Purchaser Representative shall remain a Director of the Company pursuant to this Section 5.3, Purchaser Representative shall be entitled to serve as a member of any executive committee of the Board of Directors of the Company and any other committee or in body performing the event that any one functions of them are unable to serve, such substitute designees chosen by a majority of such persons an executive committee (the four nominees of Buyer are referred to herein as the "Continuing DirectorsEXECUTIVE COMMITTEE"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's . As long as Purchaser beneficially owns not less than 850,000 shares of Common Stock (as adjusted for the matters and at the shareholder meeting events described in Section 5.6(a)(ii1.3 in a manner consistent therewith), (i) abovethe Board of Directors of the Company shall nominate and recommend the Purchaser Representative for election as a Director of the Company, and shall otherwise use its reasonable best efforts to cause the election of such Purchaser Representative as a Director of the Company at each meeting of the Company's shareholders at which the Purchaser Representative's term as a Director would otherwise expire, and (ii) Purchaser shall be entitled to designate one individual who shall receive notice of all meetings of the Board of Directors and the Executive Committee of the Company and who shall be entitled to attend and participate in all such meetings as an observer on behalf of Purchaser (the "OBSERVER"). Subject to Section 5.3(b), each Purchaser Representative shall be treated equally with the other Directors and the other members of the Executive Committee in their capacities as such and shall be entitled to the same information (including reports, financial statements, notices and other information) at the same time (subject to the same general conflicts-of-interest rules applicable to all other members of the Board of Directors and Executive Committee of the Company, reasonably and consistently applied) and the same compensation and benefits, as shall be provided to other Directors of the Company and other members of the Executive Committee, and copies of all such information shall be provided or made available to the Observer at the same time such information is provided or made available to Purchaser and other Directors or Executive Committee members. (b) Seller hereby agrees Notwithstanding any other provisions of this Agreement, the rights of the Purchaser Representative to vote serve as a Director and as a member of the Executive Committee, and the rights of the Observer to attend and participate in meetings of the Board of Directors and the Executive Committee, pursuant to Section 5.3(a) shall terminate upon the earlier of: (i) the Company's sale of all or substantially all of its assets, (ii) a merger, consolidation, share exchange, or other reorganization or business combination involving the Company in which shareholders of the Company immediately prior to such merger, consolidation, share exchange or other reorganization or business combination own less than fifty percent (50%) of the voting capital stock of the surviving or acquiring corporation or the resulting entity, or (iii) such time as Purchaser no longer owns 850,000 shares of Common Stock (as adjusted for the events described in favor Section 1.3 in a manner consistent therewith). At any time Purchaser is no longer entitled to Board representation pursuant to this Section 5.3, then at the request of the matters described in (a) aboveCompany, including the election Purchaser Representative shall immediately resign and the Observer shall immediately cease attending any meetings of the Continuing Board of Directors and the Executive Committee. (c) In addition to any other indemnification and insurance rights the Purchaser Representative and the Observer may have, (i) each Purchaser Representative (A) shall have the same indemnification rights, as set forth in the Company's Restated Articles and Bylaws, as the other members of the Board of Directors of the Company, and the Company shall afford each Purchaser Representative an opportunity to enter into an indemnification agreement substantially similar to the then effective indemnification agreement between the Company and the other members of the Board of Directors; and (B) shall be covered by director and officer liability insurance to the same extent as other members of the Board of Directors of the Company, and (ii) to the maximum extent applicable, each Observer (A) shall have analogous rights to indemnification from the Company which are substantially similar in scope to those of the Purchaser Representative and (B) shall be covered at the Company's expense by liability insurance comparable in scope to the insurance required to be obtained for Purchaser Representative to the extent such issuance is available on commercially reasonable terms at commercially reasonable cost.

Board Representation. (a) Contemporaneously with or prior to Following the Closing, the Purchaser shall be entitled to designate ▇▇▇▇▇ ▇▇▇▇▇▇, III to the Board of Directors of the Company (the “Board”) for appointment to the Board (such designee, the “Purchaser Director”). Upon such designation, the Nominating and Corporate Governance Committee (the “NCGC”) shall recommend the appointment of the Purchaser Director and the Board shall appoint the Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NCGC nor the Board shall withhold its recommendation for the re-election of the Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, until the Purchaser Rights Termination Event, the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its stockholders that the Company’s stockholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use commercially reasonable efforts to have the Purchaser Director elected as a condition precedent director of the Company and the Company shall solicit proxies for each such person to Seller's the same extent as it does for any of its other nominees to the Board. (b) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members. (c) Following the Purchaser Rights Termination Event, the Purchaser will have no further rights under this Section 6.1(c) and, at the written request of the Board, the irrevocable resignation letter described in Section 6.1(e)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board. (d) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding such Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations to consummate the transactions contemplated by under this Purchase Agreement, the following Commercial Agreement, the Certificate of Designations or the Warrants or (ii) any transaction proposed by, or with, the Purchaser or its Controlled Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal. (e) As a condition to the appointment of the Purchaser Director or nomination for election as a director of the Company pursuant to this Section 6.1(e), the Purchaser Director shall have occurredprovide to the Company: (i) (A) not less than four members all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and Representatives in a proxy statement or other filings in accordance with Requirements of Buyer's board of directors shall have submitted their resignations, effective as of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the BoardLaw or any stock exchange rules or listing standards; (ii) Buyer's board shall have adopted resolutions all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, directors or satisfying compliance and (B) the election of directors including five nominees by Seller and four nominees by Buyer, legal or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors")regulatory obligations; and --------------------and (iii) Each member of Buyer's boardan undertaking in writing by the Purchaser Director, immediately prior to the Closing shall have given Seller extent the same is made by the other members of the Board: (1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and (2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and (iv) an irrevocable proxy advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) abovethis Agreement. (bf) Seller hereby Purchaser agrees that it shall, and it shall cause and direct its Controlled Affiliates to, vote (including, if applicable, by delivering one or more proxies or through the execution of one or more written consents if stockholders of the Company are requested to vote all through the execution of its shares an action by written consent in lieu of Common Stock any annual or special meeting of stockholders of the Company) any voting Equity Securities owned by them or over which they have voting control to be present for quorum purposes, in favor of the matters described in (a) above, including the election all those persons nominated to serve as directors of the Continuing DirectorsCompany by the NCGC of the Board and against any nominee not so nominated.

Board Representation. (a) Contemporaneously with or prior to From and after the Closing, and until such time as the Purchaser Parties collectively no longer Beneficially Own a condition precedent number of As-Converted Common Shares equal to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as at least 25% of the Closingoutstanding As-Converted Common Shares (adjusted for subdivisions, and four people designated by Seller stock-splits, combinations, recapitalizations or similar events), the Purchaser shall have been nominated and elected be entitled to fill designate three (3) individuals, who shall be Partners, Managing Directors, Advisors or Principals of the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholdersPurchaser, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC or an Affiliated Fund to serve on the Company Board (the “Purchaser Designees” and Chairman of the Board; each a “Purchaser Designee”), (ii) Buyer's board shall have adopted resolutions to at least 15% (but less than 25%) of the effect thatoutstanding As-Converted Common Shares (adjusted for subdivisions, at the next meeting of Buyer's shareholdersstock-splits, to be held no later than June 30combinations, 1997recapitalizations or similar events), the following matters Purchaser shall be entitled to designate two (in addition to any other matters which the board may subsequently decide to submit to shareholder vote2) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, Purchaser Designees and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member at least 5% (but less than 15%) of Buyer's boardthe outstanding As-Converted Common Shares (adjusted for subdivisions, immediately prior stock-splits, combinations, recapitalizations or similar events), the Purchaser shall be entitled to designate one (1) Purchaser Designee. At such time that the Purchaser is no longer entitled to designate one or more of its Purchaser Designees pursuant to the Closing previous sentence, the Purchaser shall promptly cause such number of Purchaser Designees which it no longer is entitled to designate to offer to resign from the Company Board. The Purchaser Designees shall initially be those persons named on Schedule 4.11 to this Agreement. A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Agreement so long as he or she shall serve as a director on the Company Board pursuant to the terms of this Section 4.11(a). The Company’s obligations to have given Seller an irrevocable proxy any Purchaser Designee appointed to the Company Board or nominate any Purchaser Designee for election as a director at any meeting of the Company’s shareholders pursuant to this Section 4.11, as applicable, shall in each case be subject to such Purchaser Designee’s satisfaction of all requirements regarding service as a director of the form Company under applicable Law and stock exchange rules regarding service as a director of Exhibit D annexed hereto the Company. The Purchaser Parties will cause each Purchaser Designee to vote make himself or herself reasonably available for interviews and to consent to such member's shares reference and background checks or other investigations and provide such information as the Company Board may reasonably request to determine the Purchaser Designee’s eligibility and qualification to serve as a director of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboveCompany Board. (b) Seller hereby agrees From and after the Closing, the Company shall take such actions as are necessary to cause the Purchaser Designees to be nominated as members of the Company Board and shall, subject to applicable Law and the exercise of the fiduciary duties of the Company Board, include in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote all of its shares shareholders in connection with any meeting of Common Stock Company shareholders the recommendation of the Company Board that shareholders of the Company vote in favor of the matters described Purchaser Designees and solicit votes in (a) above, including favor of the election of the Continuing DirectorsPurchaser Designees to Company Board consistent with the Company’s efforts to solicit votes in favor of the election of the Company’s other nominees to the Company Board. (c) The Company, the Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms, which shall (i) provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Company Board to representatives of the Purchaser and its Affiliates and (ii) contain customary acknowledgements with respect to Purchaser’s and each Purchaser Designee’s potential receipt of material non-public information and awareness of applicable securities laws. (d) For so long as a CD&R Person or Purchaser Designee is serving on the Company Board, (i) the Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and preclearance or notification to the Company of any trades in the Company’s securities) or similar guideline or policy with respect to the trading of securities of the Company that applies to any Purchaser Party (including a policy that limits, prohibits or restricts any Purchaser Party from entering into any hedging or derivative arrangements), in each case other than with respect to any CD&R Person or Purchaser Designee solely in his or her individual capacity, except as provided herein, (ii) any share ownership requirement for any Purchaser Designee serving on the Company Board will be deemed satisfied by the securities owned by any Purchaser Party and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on any Purchaser Party’s transfers of securities pursuant to the Registration Rights Agreement or otherwise, subject to compliance with applicable securities Laws, (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Company Board be violated by any Purchaser Designee receiving compensation from any Purchaser Party and (iv) no Purchaser Designee shall be excluded or required to recuse himself or herself from any meetings or materials of the Company Board as a result of or in connection with his or her affiliation with the CD&R Group or the CD&R Group’s ownership of any Preferred Shares or Common Shares except in connection with a transaction with, or dispute involving, the Purchaser or any other member of the CD&R Group, and, in each case of the foregoing clauses (i), (ii), (iii) and (iv), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.11 shall not apply to the extent inconsistent with this Section 4.11 (but shall otherwise be applicable to the Purchaser Designee). (e) To the fullest extent permitted by the New York Business Corporation Law and subject to any express agreement that may from time to time be in effect, including the confidentiality provisions set forth in this Agreement, to the extent in compliance with applicable Law, the Company agrees that any Purchaser Designee, CD&R Person, CD&R Group and any CD&R Affiliate or any portfolio company thereof (collectively, “Covered Persons”) may, and none of the foregoing shall have any duty not to, (i) invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, shareholder, equityholder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its Subsidiaries, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the New York Business Corporation Law, to the extent in compliance with applicable Law, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person. Except as set forth below, the Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or its Subsidiaries, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by the New York Business Corporation Law, the Company hereby renounces any interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge and waives any claim against each Covered Person that such Covered Person is liable to the Company or its shareholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not communicate information regarding such corporate opportunity to the Company, in each case, except for any corporate opportunity which is expressly offered to a Covered Person in his or her capacity as a member of the Company Board, it being understood that any such corporate opportunity shall belong to the Company. (f) Notwithstanding the foregoing, at any time, the Purchaser may, by written notice thereof, irrevocably relinquish the rights to designate Purchaser Designees and upon delivery of such notice, the Purchaser Parties shall cease to have any right to designate any Purchaser Designees.

Board Representation. (a) Contemporaneously with or prior to Closing, The Company acknowledges and as a condition precedent to Seller's obligations to consummate agrees that immediately after the transactions contemplated by this Purchase AgreementClosing Date, the following Investor (or any Permitted Assignee) shall have occurred:be entitled to nominate to the Board five (5) Directors (each, an “Investor Director”) pursuant to the Terms of Issue by virtue of holding the issued and outstanding Class B Shares and Ordinary Shares. (ib) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as of the Closing, In addition to and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions without prejudice to the effect thatforegoing, at but subject to Applicable Law and the next meeting of Buyer's shareholdersNASDAQ Stock Market Rules, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any Independent Director(s) is to be appointed to the Board, the Investor (or any Permitted Assignee) shall be entitled to recommend a candidate or a pool of candidates (the “Recommended Candidate(s)”) to the Board for the purpose of such appointment, it being agreed that (x) the Board (or a subset of the Board, if applicable) shall not take steps to nominate or appoint any person other than the Recommended Candidate(s) to be an Independent Director, and (y) the Independent Director appointed from the Recommended Candidate(s) pursuant to this sentence shall serve on each committee of the Board; provided that (A) the appointment of an Independent Director from the Recommended Candidate(s) shall be subject to the consent of Management Directors, (B) the appointment of any Independent Director other than pursuant to this sentence shall be subject to the consent of the Investor Directors, and (C) this sentence (other than item (B) above) shall not be in effect for (and only for) so long as one (1) Independent Director appointed from the Recommended Candidate(s) pursuant to this sentence serves on the Board. (c) In addition to and without prejudice to any of them are unable the foregoing, but subject to serveApplicable Law and the NASDAQ Stock Market Rules, such substitute designees chosen by a majority of such persons (Independent Directors must come from a pool of candidates approved of by the four nominees Management Directors and a majority of Buyer are referred to herein as the "Continuing Investor Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) above. (bd) Seller hereby agrees Subject to vote all Applicable Law and the NASDAQ Stock Market Rules, promptly after the Closing Date, the Company shall cause the chairman of its shares the Board to execute an irrevocable power of Common Stock attorney (in form and substance reasonably acceptable to the Investor) in favor of an Investor Director (as designated by the matters described in (aInvestor) above, including so that that Investor Director acting alone would be entitled to exercise the election casting vote to which the chairman would otherwise have been entitled pursuant to Article 114 of the Continuing DirectorsConstitution.

Board Representation. (a) Contemporaneously with From and after the First Tranche Closing Date and for as long as the Purchaser holds any Securities, the Company shall take all actions within its control as are necessary to cause the election or prior appointment as a member of the Board (and any executive committee thereof) of an individual to Closingbe designated by the Purchaser, including without limitation, nominating the representative identified by the Purchaser for election as a director of the Company at any meeting of the Company's stockholders at which directors will be elected, recommending such representative's election to the Board, soliciting and voting proxies in favor of such representative's election, and as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as of the Closing, and four people designated by Seller shall have been nominated and elected to fill the filling any vacancies created by death, resignation, removal or otherwise with such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboverepresentative. (b) Seller hereby agrees In addition to, and without limitation of the Purchaser's rights pursuant to vote paragraph (a) of this Section, from and after the First Tranche Closing Date and for as long as the sum of (i) all First Tranche Common Shares, (ii) all Conversion Shares (including for purposes of this clause (ii) all Conversion Shares that would be issuable upon conversion in full of all outstanding Notes as of such time) and (iii) all Warrant Shares (including for purposes of this clause (iii) all Warrant Shares that would be issuable upon exercise in full of all outstanding Warrants as of such time), held by the Purchaser equals or exceeds 50% of the Aggregate Perseus Ownership as of such time, the Company shall take all actions as are necessary to: (A) cause the election or appointment as a member of the Board of a Qualified Independent Director (as defined below); and (B) permit an individual to be designated by the Purchaser to attend (in person or by telephone) as an observer (a "Perseus Observer") all meetings of the Board (and any executive committee thereof). Notwithstanding the foregoing, if any Second Tranche Notes are purchased by the Purchaser, then at any time that the Purchaser would be entitled to designate an observer to the Board pursuant to the foregoing clause (B), the Purchaser shall be entitled in lieu thereof, to designate a second representative for election or appointment to the Board and the Company shall take all actions within its shares control as are necessary to cause the election or appointment as a member of Common Stock the Board (and any executive committee thereof) of such representative, including without limitation, nominating the representative identified by the Purchaser for election as a director of the Company at any meeting of the Company's stockholders at which directors will be elected, recommending such representative's election to the Board, soliciting and voting proxies in favor of such representative's election, and filling any vacancies created by death, resignation, removal or otherwise with such representative. For purposes of this paragraph (b), a "Qualified Independent Director" means an individual to be designated by the matters described Company, who meets the applicable Nasdaq listing standards to qualify as an independent director of the Company and whose election to director has been affirmatively consented to in advance by the Purchaser. The Company shall provide to any Perseus Observer copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors at the same time such materials are provided to members of the Board. At least one Perseus Director shall have the right to attend and participate fully in a non-voting capacity in all meetings of each of the Board's Nominating and Corporate Governance and Compensation Committees, or any equivalent committees, including receipt of all information provided to Committee members at the same time such information is provided to Committee members. (c) At any time that the Purchaser have the right to designate one member of the Board pursuant to paragraph (a) aboveof this Section, the Company shall take all actions as are necessary to cause the Board to consist of not more than seven members, including the election member of the Continuing Board designated by the Purchaser; provided, that at any time that the Purchaser has the right to designate a second member of the Board pursuant to paragraph (b) of this Section, the Company shall take all actions as are necessary to cause the Board to consist of not more than eight members, including the two members designated by the Purchaser. (d) The Company shall reimburse all reasonable expenses (including travel and lodging expenses) incurred by the Perseus Directors or the Perseus Observers, in connection with their attendance at meetings of the Board or committees thereof. The Company shall provide and maintain in effect customary indemnification (including provisions relating to the advancement of expenses incurred in the defense of any action or suit) of the Perseus Directors, and in any event such indemnification shall be on terms no less favorable than those provided as of the date of this Agreement to the members of the Board of Directors pursuant to the Certificate of Incorporation, the Bylaws, applicable Law or otherwise. In addition, the Company shall obtain and maintain in effect a customary officers' and directors' liability insurance policy covering acts and omissions of the Perseus Directors and having a coverage limit of not less than $5,000,000. (e) At any time that the Purchaser is entitled to designate a member of the Board pursuant to this Section, the Purchaser may elect to substitute in lieu thereof a Perseus Observer, or may waive such rights in their entirety. As promptly as practicable (and in any event no later than 10 Business Days) following the Purchaser's written request, made at such time as (i) the Purchaser shall have waived its right to designate any Perseus Directors and Purchaser's right to a Perseus Observer; and (ii) no member of the Board is a director, officer, employee or partner of the Purchaser or any Affiliate of the Purchaser, the Company shall publicly disclose any material event or circumstance that has occurred or material information that exists with respect to the Company or any of its Subsidiaries or its or their business, properties, operations or financial conditions, which, under applicable Law, requires public disclosure or announcement by the Company prior to the Company's purchase or sale of its securities but which has not been so publicly announced or disclosed. From and after the delivery of a written request described in the preceding sentence, the Company shall not, and shall cause each of its Subsidiaries and its and each of their respective officers, directors, employees and agents not to, provide the Purchaser with any material nonpublic information regarding the Company or any of its Subsidiaries without the express written consent of the Purchaser. (f) The actions to be taken by the Company pursuant to this Section 5.11 shall include appointing the Perseus Directors to the Board, granting one Perseus Director the rights contemplated by the last sentence of Section 5.11(b), and nominating the representatives identified by the Purchaser for election as directors of the Company at any meeting of the Company's stockholders at which such directors will be elected, recommending their election to the Board, and soliciting and voting proxies in favor of their election. For purposes of clarification, the Company shall not be deemed to be in breach of its obligations under this Section 5.11, in the event that the Company has complied with the terms and conditions set forth herein, and the representatives identified by the Purchaser are not elected to the Board by the Company's stockholders.

Board Representation. (a) Contemporaneously with The Board shall consist of up to nine members. The Purchaser shall be entitled to designate nominees for election or prior appointment to Closing, and the Board (the “Purchaser Representatives”) as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurredfollows: (i) so long as the Purchaser holds at least 90,000 Convertible Preferred Shares (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as or the corresponding number of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman Restricted Voting Shares issued upon conversion of the BoardConvertible Preferred Shares), it shall be entitled to designate three Purchaser Representatives; (ii) Buyer's board shall have adopted resolutions to so long as the effect that, Purchaser holds at least 45,000 Convertible Preferred Shares (or the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 corresponding number of the by-laws to increase in the size Restricted Voting Shares issued upon conversion of the board Convertible Preferred Shares), it shall be entitled to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors")designate two Purchaser Representatives; and --------------------and (iii) Each member so long as the Purchaser holds at least 22,500 Convertible Preferred Shares (or the corresponding number of Buyer's boardthe Restricted Voting Shares issued upon conversion of the Convertible Preferred Shares), immediately prior it shall be entitled to designate one Purchaser Representative. The parties hereto acknowledge and agree that the Purchaser is entitled to appoint certain designees to the Closing Company’s Board of Directors pursuant to the terms of the Special Voting Preferred Shares and that this provision is intended to be in furtherance of such rights. In no event will this Section 2.1 be construed to duplicate the rights granted to the Purchaser pursuant to the terms of the Special Voting Preferred Shares. The Purchaser shall have given Seller an irrevocable proxy in not Transfer any of the form Special Voting Preferred Shares. In the event that the Purchaser no longer holds any Special Voting Preferred Shares and is therefore not entitled to elect directors to the Company’s Board of Exhibit D annexed hereto Directors pursuant to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in terms thereof; this Section 5.6(a)(ii) above2.1 shall be controlling. (b) Seller hereby agrees The Company acknowledges that the Purchaser shall be entitled to vote all of its shares of Common Stock in favor appoint three Purchaser Representatives to the Board pursuant to the terms governing the Special Voting Shares upon issuance of the matters described Special Voting Shares to the Purchaser by the Company. (c) The Purchaser acknowledges that it shall appoint the Purchaser Representative(s) to the Board in (a) above, including accordance with the election terms governing the Special Voting Preferred Shares directly following the issuance of the Continuing DirectorsSpecial Voting Preferred Shares to the Purchaser by the Company and following each future meeting of the holders of the Restricted Voting Shares where directors of the Company have been elected by holders of the Restricted Voting Shares at such meeting. Any appointees by the Purchaser shall be subject to such appointee being acceptable to the Company’s corporate governance and nominating committee, acting reasonably. (d) In the event that any Purchaser Representative shall cease to serve as a director of the Company, whether due to such Purchaser Representative’s death, disability, resignation or removal, the Company shall cause the Board to appoint a replacement Purchaser Representative designated by the Purchaser to fill the vacancy created by such death, disability, resignation or removal. (e) The Purchaser shall promptly notify the Company in writing if ceases to hold at least 90,000, 45,000 or 22,500, as the case may be, Convertible Preferred Shares (or the corresponding number of the Restricted Voting Shares issued upon conversion of the Convertible Preferred Shares). In addition, the Purchaser shall deliver a certificate to the Company, from time-to-time as the Company shall reasonably request, certifying the number of securities of the Company beneficially owned by the Purchaser as at the date of such certificate.

Board Representation. (a) Contemporaneously with or prior to Closing, and as a condition precedent to Seller's obligations to consummate Within 15 business days after the transactions contemplated by execution of this Purchase Agreement, the following Investors shall notify the Board in writing of the names of five individuals (which may include one or more members of senior management of the Company) that the Investors designate as the individuals who shall be appointed to the Board immediately after the Closing (it being understood that YAAF and YAAF Parallel each shall have occurred: (i) (A) not less than four members the right to designate one such person, and that Investors collectively shall designate the other three such persons). Prior to the mailing to Company Stockholders of Buyer's board of directors the Proxy Statement, the Investors shall have submitted the right to revise their resignationslist of five individuals, effective as of and the individuals so designated (the “Investor Director Designees”) shall be disclosed in the Proxy Statement, and such individuals shall consent to serve if appointed. The Board shall have the right to consent to the Investor Director Designees designated by the Investors prior to the Closing, and four people designated by Seller which consent shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to not be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboveunreasonably withheld. (b) Seller hereby agrees to vote all Within 15 business days after execution of its shares of Common Stock this Agreement, the Board shall notify the Investors in favor writing of the matters described in (a) above, including the election names of up to six individuals who are independent directors of the Company as of the date of this Agreement and who the Board designates as the directors who intend to remain as members of the Board following the Closing. Prior to the mailing to the Company Stockholders of the Proxy Statement, the Board shall have the right to revise or supplement its list of up to six individuals, and the individuals so designated (the “Continuing Independent Directors”) shall be disclosed in the Proxy Statement, and such individuals shall consent to continue to serve as directors following the Closing. (c) In the event that, at any time prior to the mailing to the Company Stockholders of the Proxy Statement, the number of named Continuing Independent Directors shall be less than six, the Board and the Nominating Committee of the Board shall use all reasonable efforts to recruit additional individuals who meet the requirements of Section 2.01(a)(ii) of the Stockholders Agreement and who shall consent to serve as independent directors of the Company after the Closing (the “New Independent Directors”), provided, however, that immediately prior to the Closing, the aggregate number of named Continuing Independent Directors and New Independent Directors may be either less than or equal to six. The Investors shall have the right to consent to the New Independent Directors designated by the Board prior to the Closing, which consent shall not be unreasonably withheld. (d) Immediately prior to the Closing, the Company and the Board shall take all actions necessary to (i) increase the authorized number of directors to eleven, (ii) cause those directors of the Company who are not Continuing Independent Directors to resign from the Board, and (iii) effective as the Closing, appoint the Investor Director Designees and the New Independent Directors as directors of the Company.

Board Representation. (a) Contemporaneously with or prior to Closing, and as a condition precedent to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors So long as any Series A Preferred Stock remains outstanding, the Requisite Preferred Holders shall have submitted their resignationsbe entitled to elect one individual to the Board to serve as a director, effective as of the Closing, and four people designated by Seller which individual initially shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) be E▇.▇. ▇ ▇▇▇▇▇▇ ; provided, however, that upon the occurrence or the continuance of any Event of Default, the Requisite Preferred Holders shall have submitted his resignation from all positions other than be entitled to elect one additional individual to the Board to serve as a director and Chairman of the Board;(a "Default Director"). (ii) Buyer's board shall have adopted resolutions to Notwithstanding any other sections of the effect thatCertificate of Incorporation, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997so long as any Series A Preferred Stock remains outstanding, the following matters (in addition Requisite Preferred Holders shall be entitled to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment remove from the Board any Preferred Director elected under the foregoing subsection (i), (B) elect each successor to Article IV, Section 1 of the by-laws to increase any such Preferred Director removed in the size of the board to nine directorsaccordance herewith or who otherwise vacates such office, and (BC) remove any other director necessary to create sufficient vacancies on the election Board to permit the Requisite Preferred Holders to elect additional individuals to the Board upon an occurrence or continuance of directors including five nominees by Seller and four nominees by Buyeran Event of Default, or in the event that any one an Event of them are unable to serveOption, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior pursuant to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(iiforegoing clause (i) above. (biii) Seller hereby agrees to vote all of its shares of Common Stock in favor The right of the matters described Preferred Holders to elect directors may be exercised at the special meeting called pursuant to this Section, at any annual or other special meeting of shareholders and, to the extent and in the manner permitted by Applicable Law, pursuant to a written consent in lieu of a shareholders meeting. A proper officer of the Corporation shall, upon the written request of the Requisite Preferred Holders, addressed to any officer of the Corporation, call a special meeting of the holders of Preferred Stock for the purpose of electing directors pursuant to this Section. Such meeting shall be held at the earliest legally permissible date at the principal office of the Corporation, or at such other place designated by the Requisite Preferred Holders. If such meeting has not been called by a proper officer of the Corporation within 2 days after personal delivery, by hand or by a nationally recognized, overnight courier guaranteeing next business day delivery, of such written request upon any officer of the Corporation or within 5 days after mailing the same to the secretary of the Corporation at its principal office, then the Requisite Preferred Holders may call such meeting at the expense of the Corporation, and such meeting may be called upon the notice required for annual meetings of shareholders and shall be held at the Corporation's principal office, or at such other place designated by the Requisite Preferred Holders. The Preferred Holders shall be given access to the stock record books of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to this Section. (aiv) aboveAt any meeting or at any adjournment thereof at which the Preferred Holders have the right to elect directors, including the presence, in person or by proxy, of the Preferred Holders shall be required to constitute a quorum for the election or removal of any director by the Requisite Preferred Holders. The affirmative vote of the Continuing DirectorsRequisite Preferred Holders shall be required to elect or remove any Preferred Director. (v) If any Event of Default shall occur and be continuing, the Preferred Holders shall also have any other rights which such holder is entitled to under any Document at any time and any other rights which such holder may have pursuant to Applicable Law. (vi) The Corporation shall pay or reimburse each Preferred Director for the reasonable out-of-pocket expenses incurred by such Person in connection with attending formal meetings of the Board and any committee thereof. The Corporation shall use its best efforts to maintain video teleconferencing capabilities for all formal meetings of the Board and any committee thereof.

Board Representation. (a) Contemporaneously with or prior Subject to Closingthe conditions set forth herein, the Company shall nominate, and as a condition precedent the Company and the Purchaser shall use their best efforts to Seller's obligations cause the election at the Meeting of, certain persons to consummate be designated by each of the transactions contemplated by this Purchase AgreementPurchaser and the Company (collectively, the following shall have occurred"Nominees"), as provided herein, to serve as directors on the Board of Directors of the Company such that: (i) (A) not less than four a majority of the members of Buyer's board of directors such Board shall have submitted their resignations, effective as be comprised of the Closing, and four people Purchaser's designated by Seller representatives; and (ii) three of the members of such Board shall have been nominated and elected to fill be comprised of the vacancies created by such resignations Company's designated representatives consisting of Kenneth I. Sawyer ("Seller's DesigneesSawyer") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) two additional representat▇.▇. ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ the cur▇▇▇▇ Board of Directors of the Company (collectively, the "Company Designees"). Notwithstanding anything to the contrary contained herein, each representative designated by the Purchaser in accordance with Section 7.3(f) hereof shall have submitted his resignation from all positions be nominated for election to serve on the Board of Directors unless such representative shall not be satisfactory to the Company's current Board of Directors for good faith reasons and each Company Designee shall be nominated to serve on the Board of Directors unless such Designee (other than as director and Chairman Sawyer) shall not be satisfactory to the Purchaser for good faith rea▇▇▇▇. All current members of the Board; (ii) BuyerCompany's board Board of Directors not nominated as set forth above shall have adopted resolutions resign effective upon the Closing. Any current members of such Board nominated as set forth above shall resign effective upon the Closing, subject to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the bytheir renomination and re-laws to increase in the size of the board to nine directorselection as set forth herein. All Nominees shall take office if, and (B) the election of directors including five nominees by Seller and four nominees by Buyeronly if, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboveoccur. (b) Seller hereby agrees Any director designated hereunder shall serve subject to the terms of the Company's Certificate of Incorporation and By-laws, each as in effect on the Closing Date, and the provisions of applicable law. (c) The Company Designees and the Purchaser shall jointly designate two of the Company's directors to comprise the audit committee of the Company. Each of such directors must qualify as independent, outside directors in accordance with the rules and regulations of The New York Stock Exchange. (d) The directors designated by the Purchaser shall serve as Class I and Class III directors of the Company (as allocated by the Purchaser) whose terms shall expire in the years 2000 and 1999, respectively. The Company Designees shall serve as Class II directors of the Company whose terms shall expire in the year 2001. There shall be no Class II directors other than the Company Designees (and their respective successors selected in accordance with Section 8.1 hereof) through May 31, 2001. (e) The Company shall include in the Proxy Statement distributed in respect of the Meeting the Proposals and shall recommend its approval of each Proposal (including approval of all Nominees) by the shareholders of the Company. Sawyer and the Purchaser (and its Affiliates) agree to vote all of its shares of Common any share▇ ▇▇ ▇ommon Stock which they own or otherwise have the power to vote in favor of the matters described in (a) above, including the election each of the Continuing DirectorsProposals (including approval of all Nominees). (f) The Company shall give the Purchaser written notice not less than 10 days prior to the filing with the SEC of the preliminary Proxy Statement in respect of the Meeting to allow the Purchaser to designate its nominees for director for inclusion in such Proxy Statement. The Company shall have no obligation to include such nominees in the Proxy Statement unless the Company receives written notice from the Purchaser setting forth its designated nominees (along with all biographical and other information necessary for inclusion in the Proxy Statement) not later than five days after the Company's notice to the Purchaser.

Board Representation. (a) Contemporaneously During the period beginning on the date ninety (90) days after the Closing Date and ending on the earlier of (i) the three (3) year anniversary of the Closing Date and (ii) the first Business Day that the Purchaser’s Fully Diluted Ownership Percentage is less than ten percent (10%) (such period, the “Board Designation Period”), at any time that the Nasdaq Official Closing Price of the Common Stock is below $2.7760 (as adjusted for stock splits, recapitalizations and other similar events) for thirty (30) consecutive trading days, Purchaser shall be entitled to designate one individual (“Purchaser Designee”) to serve on the Board of Directors (“Designation Right”), pursuant and subject to the terms of this Section 2. (b) In order to exercise the Designation Right, Purchaser shall deliver a written notice to the Company stating that the Purchaser wishes to exercise the Designation Right and setting forth the name of the Purchaser Designee (the “Designation Notice”). As a condition to the appointment of any Purchaser Designee, the Purchaser will also provide, or cause the Purchaser Designee to provide, a completed and executed director nominee questionnaire in a form to be provided by the Company (a “Nominee Questionnaire”) and any other information that is reasonably required by applicable law for inclusion in the Company’s filings with or prior the SEC relating to Closingthe appointment of such Purchaser Designee, proxy materials for meetings of stockholders, and as a condition precedent all other applicable filings with the SEC. (c) Subject to Seller's obligations to consummate the transactions contemplated by terms of this Purchase AgreementSection 2, the Company hereby agrees to appoint the Purchaser Designee to the Board of Directors within fifteen (15) Business Days following shall have occurred:receipt of both (i) the Designation Notice and (Aii) the completed Nominee Questionnaire. Thereafter, for the remainder of the Board Designation Period, subject to the requirements of fiduciary duties under applicable law, the Company shall include the Purchaser 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 Purchaser Designee are to be elected and every adjournment or postponement thereof. If a Purchaser Designee elected or appointed pursuant to the terms hereof ceases to serve as a member of the Board of Directors for any reason, then the Purchaser shall have the right to designate another designee pursuant to the terms of this Agreement, it being understood that any such designee shall serve the remainder of the term of the director whom such designee replaces, and the Company shall take all such action as is reasonable and necessary to promptly cause the election or appointment of such other designee to the Board of Directors for such term. If the Purchaser has exercised the Designation Right and the Board Designation Period lapses while a Purchaser Designee is serving on the Board of Directors, the Purchaser Designee shall not less than four be required to resign but may continue to serve on the Board of Directors for the remainder of the Purchaser Designee’s then-current term on the Board of Directors. (d) Notwithstanding any other provisions of this Section 2, the Company shall not be required to appoint a Purchaser Designee to the Board of Directors if a majority of the disinterested members of Buyer's board the Board of directors shall have submitted their resignationsDirectors reasonably determines in good faith, effective after consultation with outside legal counsel, that such person would not be qualified to serve as a director of the ClosingCompany under any applicable law (including requirements of fiduciary duties under applicable law), rule or regulation, rule of the stock exchange on which the Company’s shares are listed, the Bylaws or any policy or guidelines previously approved by the Board of Directors and made available to the Purchaser, provided that the direct or indirect purpose of any such policy or guideline is not to obstruct the Purchaser’s right to designate an individual as a nominee to the Board of Directors or its rights under this Agreement, and four people designated provided further that the parties agree any such Purchaser Designee is not required to meet the independence requirements of the SEC or the Nasdaq Stock Market LLC. The Company shall notify the Purchaser of any objection to a Purchaser Designee promptly following determination by Seller shall have been nominated and elected the Board of Directors that such Purchaser Designee is not qualified to fill serve as a director of the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholdersCompany, and in any event on or prior to the fifteenth (B15th) Business Day following receipt of the Designation Notice and completed Nominee Questionnaire with respect to such Purchaser Designee, so as to enable the Purchaser to propose a replacement Purchaser Designee in accordance with the terms of this Agreement. (e) Purchaser understands that, as a condition to the appointment of Purchaser Designee, the Company may require the Purchaser Designee to agree in writing, during the term of any service as a director of the Company, to (a) comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee members of the Board of Directors, including, without limitation, the Company’s business and ethics code of conduct, ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation ▇▇▇▇▇▇▇ policy, and related- person transactions policy, in each case as previously approved by the Board of Directors and as amended from all positions other than as time to time, and compliance with applicable disclosure controls and procedures, including but not limited to completing an annual director and Chairman officer questionnaire; and (b) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board;Board of Directors and its committees, as applicable, or other confidential information of the Company that the Purchaser Designee receives from the Company, unless previously disclosed publicly by the Company. (f) For so long as any Purchaser Designee serves as a director, such director shall be entitled to (i) the same reimbursement for travel and other expenses paid to other non-employee directors incurred in connection with his or her duties as a director, including any service on any committee of the Board of Directors, and (ii) Buyer's board shall have adopted resolutions the same indemnification, exculpation and advancement of expenses rights provided to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the bynon-laws to increase in the size of the board to nine employee directors, and the Company shall maintain in full force and effect directors’ and officers’ liability insurance coverage with respect to such director (B) subject to the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority limitations of such persons (the four nominees of Buyer are referred to herein coverage, and with such coverage terms as the "Continuing Directors"); and -------------------- (iiiCompany deems reasonable) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock same extent that it indemnifies and provides insurance for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboveother non-employee directors. (b) Seller hereby agrees to vote all of its shares of Common Stock in favor of the matters described in (a) above, including the election of the Continuing Directors.

Board Representation. (a) Contemporaneously with or prior Immediately following Closing and during the Earn-Out Period only, the Seller shall have the right to Closingappoint, and as a condition precedent Sphere 3D shall cause such appointment upon the exercise of such right, one nominee to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as of the ClosingPurchaser, which board shall consist of three directors, unless otherwise agreed by the parties. Subject to all necessary TSXV and four people designated by Seller regulatory approvals, to the extent applicable, such initial nominee shall have been nominated and elected to fill the vacancies created by be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ until such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) time that ▇.▇. ▇▇▇▇▇▇▇▇▇ shall have submitted his resignation from all positions other than becomes ineligible to serve as a director and Chairman of the Board; Purchaser pursuant to applicable laws, at which time his successor shall be appointed by Seller (ii) Buyer's board which appointment must be mutually agreed to by parties, acting reasonably). Following the Earn-Out Period, the Purchaser shall have adopted resolutions consider, but shall not be obligated, to include ▇▇. ▇▇▇▇▇▇▇▇▇ as a director of the Purchaser to the effect that, at the next meeting of Buyer's shareholders, to extent that it reasonably determines that ▇▇. ▇▇▇▇▇▇▇▇▇ would be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 a valuable contributing member of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) above. (b) Seller hereby agrees Immediately following Closing, subject to vote consent by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and all of its shares of Common Stock in favor necessary TSXV and regulatory approvals, Purchaser and Sphere 3D shall consider, but shall not be obligated, to include ▇▇. ▇▇▇▇▇▇▇▇▇ to the nomination of the matters described full slate of directors of Sphere 3D in (a) aboveaccordance with Sphere 3D’s constituent and other governing documents, including to the election extent it reasonably determines that ▇▇. ▇▇▇▇▇▇▇▇▇ would be a valuable contributing member of the Continuing Directorsboard. The Seller shall have no right to request any substitute nominee to the board of directors of Sphere 3D if ▇▇. ▇▇▇▇▇▇▇▇▇ is unwilling or unable to serve in such capacity. (c) The rights of Seller and obligations of Purchaser and Sphere 3D under clause (b) of this Section 8.11 shall cease on the earliest of: (i) the voluntary termination of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as an employee of the Purchaser or Sphere 3D; (ii) the termination by “Cause” of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ by the Purchaser of Sphere 3D, as the case may be, as an employee of the Purchaser of Sphere 3D; (iii) the expiration of the Earn-Out Period; or (iv) as otherwise set forth in this Agreement.

Board Representation. (a) Contemporaneously Each of USRG and ETP shall have the right to designate one Qualified Director for election to the Company’s Board of Directors, upon the terms and conditions set forth in this Section 2. The Nominating Committee shall recommend to the Board of Directors that one Qualified Director designated by each of USRG and ETP (each a “Director Designee”) be elected to serve as a director and the Board of Directors shall use its reasonable efforts to cause the election of such designated Qualified Director with a term of office beginning no later than concurrently with or prior to Closingimmediately following the Closing and, and as a condition precedent to Seller's obligations to consummate if the transactions contemplated by this Purchase AgreementBoard of Directors is classified, ending no earlier than the following shall have occurred: (i) (A) not less than four members of Buyer's board of directors shall have submitted their resignations, effective as of the Closing, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next third annual meeting of Buyer's shareholdersstockholders of the Company following the Closing. The identification of a Director Designee by each of USRG and ETP shall occur in time sufficient (as reasonably established by the Board of Directors) for such Director Designee’s name to be included in the prospectus used in connection with the marketing of the Planned Public Offering and such Director Designee shall furnish such Director Designee’s consent to be named as a director in such prospectus in form reasonably requested by the Company. (b) In the event that any Director Designee shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled with a Qualified Director designated by the person, USRG or ETP, as the case may be, that designated the Director Designee that so ceases to serve; provided that USRG and ETP shall not be obligated to designate an individual to fill such vacancy. (Bc) The Company agrees with USRG that if ▇.▇▇▇▇▇▇▇ ▇▇▇▇ is serving on the Board of Directors as the Director Designee of USRG and he is an Independent Director, then ▇▇▇▇▇▇▇▇ ▇▇▇▇ shall be appointed a member of the Nominating Committee. The Company further agrees with ETP that if ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is serving on the Board of Directors as the Director Designee of ETP, he is an Independent Director and ▇▇▇▇▇▇▇▇ ▇▇▇▇ is not serving on the Nominating Committee, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman be appointed a member of the Board;Nominating Committee. (d) The agreements set forth in this Section 2 shall terminate and be of no further force or effect upon the earliest to occur of: (i) the date that is the third anniversary of the Closing, (ii) Buyer's board shall have adopted resolutions to the effect thatdate of a Change of Control of the Company, at and (iii) if the next meeting of Buyer's shareholders, to be held no later than Closing has not occurred on or before June 30, 19972012, on July 1, 2012. In addition, as to each of USRG and ETP, the agreements set forth in this Section 2 benefiting each of USRG and ETP shall terminate and be of no further force or effect as to it upon the date following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are Closing when it ceases to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 the beneficial owner of at least 50% of the by-laws Series B Preferred Stock it would be entitled to increase in receive if the size shares of Series A Preferred Stock that it owns of record on the date hereof were converted pursuant to the provisions of Section F of Article IV of the board to nine directorsSecond Restated Certificate (assuming the over-allotment option of the underwriters for Planned Public Offering is not exercised) or, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in Closing, on the form of Exhibit D annexed hereto date when it ceases to vote such member's shares of Common Stock for the matters and beneficially own at the shareholder meeting described in Section 5.6(a)(ii) above. (b) Seller hereby agrees to vote all of its shares of Common Stock in favor least 50% of the matters described in (a) above, including the election Series A Preferred Stock that it owns of record as of the Continuing Directorsdate hereof.

Board Representation. (a) Contemporaneously with or prior to From and after the Closing, and until such time as the Purchaser Parties collectively no longer Beneficially Own a condition precedent number of shares of Purchased Shares equal to Seller's obligations to consummate the transactions contemplated by this Purchase Agreement, the following shall have occurred: (i) at least ten percent (10%) 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 Exempted Securities shall be excluded and deemed not outstanding), the Purchaser shall be entitled to designate two (2) persons, who shall be Partners, Managing Directors, Advisors or Principals of the Purchaser, CD&R or any CD&R Affiliate and reasonably acceptable to the Company at the time of such designation, to serve on the Company Board (such individuals who are so reasonably acceptable to the Company, 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 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 this Agreement (the “Initial Purchaser Designees”), each of 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 Agreement for the remainder of such person’s term on the Company Board or, if earlier, death or resignation. The Company’s obligations to have any Purchaser Designee appointed to the Company Board or nominate any Purchaser Designee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4.8, as applicable, shall in each case be subject to such Purchaser Designee’s satisfaction of all requirements regarding service as a director of the Company under applicable Law, stock exchange rules regarding service as a director of the Company, and the 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 the corporate governance or other guidelines and director onboarding and membership requirements of the Company that are generally applicable to all directors thereof. (b) From and after the Closing, subject to Section 4.7(a), the Company shall take such actions as are reasonably necessary to cause the Purchaser Designees to be nominated as members of the Company Board and shall, subject to applicable Law and the exercise of the fiduciary duties of the Company Board, include in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any meeting of Company stockholders the recommendation of the Company Board that stockholders of the Company vote in favor of the Purchaser Designees and solicit votes in favor of the election of the Purchaser Designees to Company Board consistent with the Company’s efforts to solicit votes in favor of the election of the Company’s other nominees to the Company Board. (c) The Company, the Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms and which shall provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Company Board to representatives of the Purchaser Parties on the terms and subject to reasonable conditions and limitations set forth therein. (d) For so long as a CD&R Person or Purchaser Designee is serving on the Company Board, (i) the Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and preclearance or notification to the Company of any trades in the Company’s securities) or similar guideline or policy with respect to the trading of securities of the Company that applies to any Purchaser Party (including a policy that limits, prohibits or restricts any Purchaser Party from entering into any hedging or derivative arrangements), in each case other than with respect to any CD&R Person or Purchaser Designee solely in his or her individual capacity, except as provided herein, (ii) any share ownership requirement for any Purchaser Designee serving on the Board of Directors will be deemed satisfied by the securities owned by any Purchaser Party and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on any Purchaser Party’s transfers of securities pursuant to the Registration Rights Agreement or otherwise, subject to compliance with applicable securities Laws, (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Company Board be violated by any Purchaser Designee receiving compensation from any Purchaser Party and (iv) no Purchaser Designee shall be excluded or required to recuse himself or herself from any meetings or materials of the Company Board as a result of or in connection with his or her affiliation with the CD&R Group or the CD&R Group’s ownership of any Preferred Stock or Common Stock except in connection with a transaction with, or dispute involving, the Purchaser or any other member of the CD&R Group, and, in each case of the foregoing clauses (i), (ii), (iii) and (iv), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.8 shall not apply to the extent inconsistent with this Section 4.8 (but shall otherwise be applicable to the Purchaser Designee). (e) To the fullest extent permitted by the DGCL and subject to any express agreement that may from time to time be in effect, including the confidentiality provisions set forth in this Agreement, to the extent in compliance with applicable Law, the Company agrees that any Purchaser Designee, CD&R Person, CD&R Group and any CD&R Affiliate or any portfolio company thereof (collectively, “Covered Persons”) may, and none of the foregoing shall have any duty not to, (i) invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its Subsidiaries, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the DGCL, to the extent in compliance with applicable Law, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person. Except as set forth below, the Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or its Subsidiaries, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by the DGCL, the Company hereby renounces any interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge and waives any claim against each Covered Person that such Covered Person is liable to the Company or its stockholders for breach of any fiduciary duty solely by reason of the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not less than four members communicate information regarding such corporate opportunity to the Company, in each case, except for any corporate opportunity which is expressly offered to a Covered Person in his or her capacity as a member of Buyer's board of directors the Company Board, it being understood that any such corporate opportunity shall have submitted their resignationsbelong to the Company (f) Purchaser and the Company agree that, effective as of the Closing, the provisions set forth in this Section 4.8 and four people designated by Seller shall have been nominated any related definitions will be replicated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholders, and (B) ▇.▇. ▇▇▇▇▇▇ shall have submitted his resignation from all positions other than as director and Chairman of the Board; (ii) Buyer's board shall have adopted resolutions to the effect that, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters (in addition to any other matters which the board may subsequently decide to submit to shareholder vote) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase set forth in the size Certificate of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and -------------------- (iii) Each member of Buyer's board, immediately prior to the Closing shall have given Seller an irrevocable proxy in the form of Exhibit D annexed hereto to vote such member's shares of Common Stock for the matters and at the shareholder meeting described in Section 5.6(a)(ii) aboveDesignations. (b) Seller hereby agrees to vote all of its shares of Common Stock in favor of the matters described in (a) above, including the election of the Continuing Directors.

Board Representation. (a) Contemporaneously with or prior to ClosingThe Company shall take all requisite action such that on the Closing Date hereof, the size of the Board shall be set at seven (7) members, and as a condition precedent to Seller's obligations to consummate the transactions contemplated two (2) individuals designated by Accretive (each director designated by Accretive under this Purchase Agreement, an “Accretive Designee”, and collectively, the following “Accretive Designees”) as Board nominees shall have occurred: (i) (A) not less than four members be appointed to the Board; provided, however, Accretive shall be permitted, in its discretion, to defer appointment of Buyer's board of directors shall have submitted their resignations, effective as one or more of the ClosingAccretive Designees to one or more subsequent dates and in such case one Board vacancy shall be left to be filled by an Accretive Designee; and provided, and four people designated by Seller shall have been nominated and elected to fill the vacancies created by such resignations ("Seller's Designees") to hold such positions until ------------------ the next annual meeting of Buyer's shareholdersfurther, and (B) ▇.▇. that ▇▇▇▇▇▇ Tick shall have submitted submit his irrevocable resignation from all positions other than as director and Chairman the Board to the President or Secretary of the Company, which resignation shall specify that it shall take effect only at the sole discretion of Accretive as to timing to appoint such second Accretive Designee, and shall not be subject to acceptance by the Board or the Company (provided that the foregoing shall not impair Mr. Tick’s ability to resign at any time without acceptance or consent from Accretive, the Company or any other party). The rights of Accretive under this Article 7 shall continue in effect as long as either: (i) any obligations under the Notes remain due and outstanding or (ii) Accretive is the beneficial owner (as defined by the regulations of the SEC) of at least five percent (5%) of the common stock of the Company. (b) From and after the date hereof, the Company shall cause two (2) Accretive Designees to be nominated by the Company to serve on the Board and the total number of members of the Board shall be seven (7) or fewer to the extent certain of the Accretive Designees have not been appointed to the Board (as permitted above). Any Accretive Designees shall be appointed to the Board on the Closing Date or to the extent designated following the Closing Date, shall be appointed to the Board promptly following notice from Accretive and in any event, within one (1) Business Day. (c) Solely with respect to those Accretive Designees that Accretive is entitled to designate pursuant to Article 7 (and solely as long as Accretive remains entitled to so designate such Accretive Designees): (i) The Company shall use its reasonable best efforts to have such Accretive Designees elected as directors of the Company, including, without limitation, including such Accretive Designees in the Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for such Accretive Designees to the same extent as it does for any of its nominees to the Board;, and including the recommendation of the Board in favor of election of the Accretive Designees. In the event an Accretive Designee is not elected at a stockholders meeting at which such designee is up for election, the Company shall cause such Accretive Designee to be appointed to the Board. (ii) Buyer's board Any vacancy in the position of an Accretive Designee shall have adopted resolutions only be filled with another Accretive Designee. Any vacancy created by any removal of an Accretive Designee or an election of Accretive to defer appointing one or more Accretive Designees shall also only be filled with another Accretive Designee. The Company shall not take any action to remove any Accretive Designee or fill a vacancy reserved for an Accretive Designee without the consent of Accretive. Any replacement Accretive Designees shall be appointed to the effect thatBoard promptly following notice from Accretive and in any event, at the next meeting of Buyer's shareholders, to be held no later than June 30, 1997, the following matters within two (in addition to any other matters which the board may subsequently decide to submit to shareholder vote2) are to be submitted for shareholder approval: (A) an amendment to Article IV, Section 1 of the by-laws to increase in the size of the board to nine directors, and (B) the election of directors including five nominees by Seller and four nominees by Buyer, or in the event that any one of them are unable to serve, such substitute designees chosen by a majority of such persons (the four nominees of Buyer are referred to herein as the "Continuing Directors"); and --------------------Business Days. (iii) Each member Accretive Designee shall be given notice of Buyer's board(in the same manner that notice is given to other members of the Board) all meetings (whether in person, immediately prior telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such Accretive Designee serves. Each Accretive Designee shall receive a copy of all notices, agendas and other materials distributed to the Closing shall have given Seller an irrevocable proxy Board, whether provided to directors in the form advance or during or after any meeting, regardless of Exhibit D annexed hereto to vote whether such member's shares of Common Stock for the matters and Accretive Designee will be in attendance at the shareholder meeting described in Section 5.6(a)(ii) abovemeeting. (bd) Seller hereby agrees Except as specified in Section 5.2(c) to vote all the contrary, the provisions of its shares this Article 7 shall apply mutatis mutandis to the right of Common Stock Accretive to appoint subsidiary directors set forth in favor of the matters described in (aSection 5.2(c) above, including the election of the Continuing Directorshereof.