Common use of Board Representation Clause in Contracts

Board Representation. (a) Upon the Closing, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable to the Board and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon The Board of Directors shall, prior to the Closing, (i) the Company shall increase the size elect a total of the Board by one director and (ii) the Board shall fill this vacancy with one person four nominees designated in writing by the Investor who shall be reasonably acceptable to the Board and shall meet all qualifications required by written policy of the Company(such persons, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director replacements designated by the Investor, the "Board Nominees"), to the Board of Directors, to be allocated to Class I, Class II or Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall elect as be entitled to present to the Board of Directors or the nominating committee thereof a director number of nominees for election to fill the vacancy so created class of directors up for election to the Board of Directors at such annual meeting equal to the number of Board Nominees in such class immediately prior to such election and the Company shall use its best efforts to cause the election to the Board of Directors of such Board Nominees. If the Board of Directors shall cease to be a Qualified classified board, the Investor shall be entitled to present to the Board of Directors or the nominating committee thereof two nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of a Board Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board of Directors. (b) The Company shall cause each Board Nominee designated for election to the Board of Directors pursuant to Section 5.02(a) to be included in the slate of nominees recommended by the Investor Board of Directors to fill the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the election of each such vacancyBoard Nominee, including soliciting proxies in favor of the election of such person. (c) The Board Representative Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to designate Board Nominees for election to the same compensation and same indemnification Board of Directors in connection with his or her role as a director as the other members event that (i) less than $130,000,000 in Stated Value of the BoardSeries A Preferred Stock is outstanding or (ii) the Investor and its Affiliates do not Beneficially Own, and in the aggregate, more than 50% of the then outstanding shares of Series A Preferred Stock. In the event that the Investor shall not be entitled to reimbursement designate Board Nominees for documented, reasonable out-of-pocket expenses incurred in attending meetings of election to the Board of Directors, the Board Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Original Number of Series A Shares specified in this Section 5.02(c). If a Board Nominee does not resign on or any committees thereof, prior to such thirtieth day as required pursuant to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee immediately preceding sentence, a majority of the Board of which Directors (excluding any Board Nominees) shall have the right to remove such Board Nominee from the Board Representative of Directors. (d) If the Board of Directors shall determine in good faith in the exercise of its fiduciary duties, that nomination of any person designated by the Investor for election to the Board of Directors would be contrary to the best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in person, if such determination shall be made at a Board of Directors meeting at which a Board Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a memberBoard of Directors meeting at which a Board Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the Board of Directors as a Board Nominee. The Company shall provide Board of Directors has approved the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members executives of the Investor set forth on Schedule 5.02(d) as Board concurrently Nominees for all purposes hereof as such materials are provided to the other membersdate hereof.

Board Representation. (a) Upon consummation of the purchase and sale of the Series B Preferred Stock and the Warrant pursuant to Section 2.1 hereof, Purchaser shall be entitled to designate for appointment to the Board of Directors six (6) out of the ten (10) members of the Board of Directors, which designees (the "Purchaser Designees") shall be distributed evenly among the three classes of members of the Board of Directors. Prior to the Closing, (i) the Company shall take all necessary corporate action to increase the size of its Board of Directors to ten (10) members and obtain all necessary resignations in consultation with Purchaser for existing directors to enable all six Purchaser Designees to be appointed to the Board by one director of Directors, and (ii) Company shall cause the Board of Directors to fill the vacancies created thereby by electing the Purchaser Designees effective as of the Closing. If a vacancy shall fill this vacancy with one person designated by exist on the Investor Board of Directors as a result of the resignation, removal, death or failure to stand for re-election of a Purchaser Designee, Purchaser shall be entitled to designate a successor who shall be reasonably acceptable appointed to the Board and of Directors by the remaining Directors. If a vacancy shall meet all qualifications required exist on the Board of Directors as a result of the resignation, removal, death or failure to stand for re-election of a Continuing Director (as such term is defined in Article IX of Company's Restated Certificate of Incorporation), the remaining Continuing Directors shall be entitled to designate a successor who shall be appointed to the Board of Directors by written policy the remaining directors pursuant to the recommendation of the remaining Continuing Directors. If, prior to Closing, the number of directors of Company is increased by virtue of any right of security holders (in the event dividends or other payments provided for under the terms of such securities are not made, or otherwise), then such increase shall include a sufficient number of directors of the Company, including, without limitation, who shall be designated by Purchaser and appointed to the Board, Board of Directors by the Nominating and Governance Committee Continuing Directors so that Purchaser's Designees shall constitute a majority of such increased Board of Directors. Purchaser agrees that it shall vote all Company securities beneficially owned by it that are entitled to vote in the election of directors in favor of the Board and Continuing Directors' designees for election or re-election as Continuing Directors until the ethics and compliance program first election of directors following the payment of the Companydistribution contemplated by Section 6.14 of this Agreement, and that it will require any transferee of any such Company securities (other than transferees that acquire such securities in effect from time a registered public offering or in a transaction pursuant to time that apply Rule 144 of the Securities Act) to all nominees agree to vote such securities in the manner provided herein. For so long as Purchaser is obligated to vote for the Board (Continuing Directors' designees, no Purchaser Designee shall be deemed to be a “Qualified Nominee”)Continuing Director for purposes of Article IX of Company's Restated Certificate of Incorporation. (b) Until Prior to the occurrence of an Investor Rights Termination EventClosing, (i) at each annual meeting of Purchaser shall timely furnish to Company all information concerning the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person Purchaser Designees required to be elected included in the information statement referred to serve as a director on the Board (it being understood in Section 7.2(d) so that such Qualified Nominee shall not information may be included in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancyinformation statement. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon the Closing, (i) the The Company shall increase at or prior to the size Closing Date cause three vacancies, constituting a majority of the Board by one director of Directors, to be created on its Board of Directors, and (ii) on the Board Closing Date shall fill this vacancy with one person cause each of Messrs. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, who have been designated by the Investor who Purchasers to be elected to its Board of Directors. For at least two (2) years after the Closing Date, one member of the Board of Directors shall be reasonably acceptable to an independent director and one director shall be the Board and shall meet all qualifications required by written policy Chief Executive Officer of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until Commencing with the occurrence annual meeting of an Investor Rights Termination Eventstockholders of the Company immediately following the election of such persons to the Board of Directors, (i) and at each annual meeting of stockholders of the Company thereafter, so long as the Purchasers hold (A) shares of Common Stock, or (B) Preferred Shares convertible and/or Warrants exercisable, in each case, after giving effect to any adjustments, into shares of Common Stock that in the aggregate represent 25% or more of the total number of shares of Common Stock of the Company then outstanding on a fully diluted basis, the Purchasers shall be entitled to nominate (in addition to any rights granted to the holders of Preferred Stock as set forth in the Certificate of Amendment), from time to time, that number of directors to the Company's Board of Directors that would constitute a majority of the Board of Directors. The Company shall cause such nominees of the Purchasers to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its best efforts to cause the election of such nominees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such persons. The Board of Directors shall appoint a Nominating Committee, consisting of the Chief Executive Officer of the Company, the Board shall nominate and recommend for election one Qualified Nominee a director designated by the Investor Purchaser and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, which shall recommend two nominees for election as directors at the first Annual Meeting of Stockholders following the Closing (which Annual Meeting shall occur not earlier than 180 days following the Closing Date). (c) In the event any nominee of the Purchasers shall cease to serve as a director on for any reason, the Board (the “Board Representative”) and Company shall use its reasonable best efforts to cause such person the vacancy resulting thereby to be elected to serve as filled by a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members nominee of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersPurchasers.

Board Representation. (a) Upon Effective as of the Closing, (i) for such period of time as Stockholder continues to Beneficially Own Shares that constitute not less than 15% of all of the issued and outstanding Shares, the Company shall increase the size cause such number of persons, equaling not less than 20% of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable to total number of directors on the Board and shall meet all qualifications required designated by Stockholder in a written policy Stockholder Nominee Notice (a "Stockholder Nominee Notice") delivered to the Company not less than 60 days prior to the annual meeting of the Stockholders of the Company, including, without limitation, the Board, to be nominated by the Nominating and Governance Committee for election or reelection to the Board at the next annual meeting of the Board and the ethics and compliance program Stockholders of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until In the occurrence event that Stockholder ceases to Beneficially Own at least 15%, but continues to Beneficially Own more than 10%, of an Investor Rights Termination Eventthe Shares, (i) at each the Company agrees to cause the Nominating Committee to nominate one person designated by Stockholder in a Stockholder Nominee Notice, delivered to the Company not less than 60 days prior to the annual meeting of the stockholders Stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor or reelection to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its next annual meeting of stockholders or take extraordinary solicitation efforts the Stockholders of the Company; provided, however, that in the event that Stockholder ceases to Beneficially Own at least 15% of the Shares, the directors who were not taken with regard designated by Stockholder may, by majority vote of such directors at any time, request such number of directors designated by Stockholder to resign from the other nominees to Board so only one director designated by Stockholder remains on the Board, including that and Stockholder shall immediately cause such director or directors to resign from the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancyBoard. (c) The Board Representative shall be entitled In the event that Stockholder ceases to Beneficially Own more than 5% of the same compensation and same indemnification in connection with his Shares, the directors who were not designated by Stockholder may, by majority vote of such directors at any time, request any or her role as a director as all of the other members of directors designated by Stockholder to resign from the Board, and Stockholder shall be entitled immediately cause such director or directors to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of resign from the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon The Stockholders, collectively, shall have the Closingright to designate either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, as they may choose, for election to the Company's board of directors by such board at the closing of the transactions contemplated by the Purchase Agreement, to serve until the next annual meeting of the stockholders of the Company. Thereafter, if any one of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇ (i) holds at least 400,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or exchanges in, or the Company shall increase distribution of additional or different securities in respect of, the size Common Stock as a result of the Board by one director any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction) and (ii) is either an employee of the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable Company or is subject to the Board and shall meet all qualifications required by written policy noncompetition covenants of Article VII of the Company, including, without limitation, the Board, the Nominating and Governance Committee Purchase Agreement or Section 7 of the Board Employment Agreement of even date herewith between him and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board Company (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) and (ii) above, the "Board Qualifications"), the Company agrees to cause such Stockholder to be included in management's slate of nominees for election at each annual meeting of the stockholders of the CompanyCompany at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. If, however, both ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ meet the Board Qualifications, the Board Stockholders shall nominate and recommend choose one of them to be nominated for election one Qualified Nominee designated by to the Investor to serve as a director on Company's Board of Directors and the Board (the “Board Representative”) and shall use its reasonable best efforts Company agrees to cause such person Stockholder so chosen to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be included in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board management's slate of nominees for election at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its each annual meeting of the stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that of the Company will at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. Further, for so long as the Stockholders collectively own in the aggregate not less than 800,000 shares of Common Stock (which threshold number of shares shall automatically be obligated adjusted from time to pay extraordinary costs with regard time to reflect increases, decreases or exchanges in, or the election distribution of such Qualified Nominee additional or different securities in respect of, the Common Stock as director and (ii) upon the deatha result of any recapitalization, disabilityreclassification, retirementstock dividend, resignationstock split, removal reverse stock split or other vacancy of a director designated by the Investorsimilar transaction), the Board shall elect as Company agrees to cause whichever of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ is not a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members member of the Board, and shall Company's Board of Directors to be entitled invited to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending attend meetings of the Company's Board of Directors as an observer (so long as he is either an employee of the Company or any committees thereof, is subject to the same extent as the other members noncompetition covenants of Article VII of the Board. The Company shall notify the Board Representative of all regular and special meetings Purchase Agreement or Section 7 of the Board Employment Agreement of even date herewith between him and shall notify the Board Representative of all regular and special meetings of any committee of Company), unless the Board of which the Board Representative is a member. The Company shall provide the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members Directors of the Board concurrently Company determines as to any particular meeting or meetings that considerations of confidentiality make such materials are provided to the other membersattendance inappropriate.

Board Representation. (a) Upon the Closing, (i) the Company The Board of Directors shall increase the size elect a total of the Board by one director and (ii) the Board shall fill this vacancy with one person three nominees designated in writing by the Investor who shall be reasonably acceptable prior to the Board and shall meet all qualifications required by written policy of the CompanyClosing (such persons, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director replacements designated by the Investor, the "INVESTOR NOMINEES"), to the Board of Directors effective as of the Closing Date, to be allocated to Class I, Class II and Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall elect as be entitled to present to the Board of Directors or the nominating committee thereof a director number of nominees for election to fill the vacancy so created class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election and the Company shall use its best efforts to cause the election to the Board of Directors of such Investor Nominees. If the Board of Directors shall cease to be a Qualified classified board, the Investor shall be entitled to present to the Board of Directors or the nominating committee thereof three nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board of Directors. (b) The Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to Section 5.02(a) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the election of each such Investor to fill Nominee, including soliciting proxies in favor of the election of such vacancyperson. (c) The Board Representative Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to designate Investor Nominees for election to the same compensation Board of Directors in the event that the Investor and same indemnification its Affiliates Beneficially Own, in connection with his or her role as a director as the other members aggregate, less than 50% of the Board, and Investor Original Number of Conversion Shares. In the event that the Investor shall not be entitled to reimbursement designate Investor Nominees for documented, reasonable out-of-pocket expenses incurred in attending meetings of election to the Board of Directors, the Investor Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Investor Original Number of Conversion Shares specified in this Section 5.02(c). If an Investor Nominee does not resign on or any committees thereof, prior to such thirtieth day as required pursuant to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee immediately preceding sentence, a majority of the Board of which Directors (excluding any Investor Nominees) shall have the right to remove such Investor Nominee from the Board Representative of Directors. (d) If the Board of Directors shall determine in good faith in the exercise of its fiduciary duties, that nomination of any person designated by the Investor for election to the Board of Directors would be contrary to the best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in person, if such determination shall be made at a Board of Directors meeting at which an Investor Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a memberBoard of Directors meeting at which an Investor Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the Board of Directors as an Investor Nominee. The Company shall provide Board of Directors has approved the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members executives of the Board concurrently Investor set forth on Schedule 5.02(d) hereto as such materials are provided to Investor Nominees for all purposes hereof as of the other membersdate hereof.

Board Representation. (a) Upon the Closing, (i) the Company The Board of Directors shall increase the size elect a total of the Board by one director and (ii) the Board shall fill this vacancy with one person three nominees designated in writing by the Investor who shall be reasonably acceptable prior to the Board and shall meet all qualifications required by written policy of the CompanyInitial Closing (such persons, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director replacements designated by the Investor, the "INVESTOR NOMINEES"), to the Board of Directors effective as of the Initial Closing Date, to be allocated to Class I, Class II and Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Initial Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall elect as be entitled to present to the Board of Directors or the nominating committee thereof a director number of nominees for election to fill the vacancy so created class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election and the Company shall use its best efforts to cause the election to the Board of Directors of such Investor Nominees. If the Board of Directors shall cease to be a Qualified classified board, the Investor shall be entitled to present to the Board of Directors or the nominating committee thereof three nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board of Directors. (b) The Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to Section 5.02(a) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the election of each such Investor to fill Nominee, including soliciting proxies in favor of the election of such vacancyperson. (c) The Board Representative Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to designate Investor Nominees for election to the same compensation Board of Directors in the event that the Investor and same indemnification its Affiliates Beneficially Own, in connection with his or her role as a director as the other members aggregate, less than 50% of the Board, and Investor Original Number of Conversion Shares. In the event that the Investor shall not be entitled to reimbursement designate Investor Nominees for documented, reasonable out-of-pocket expenses incurred in attending meetings of election to the Board of Directors, the Investor Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Investor Original Number of Conversion Shares specified in this Section 5.02(c). If an Investor Nominee does not resign on or any committees thereof, prior to such thirtieth day as required pursuant to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee immediately preceding sentence, a majority of the Board of which Directors (excluding any Investor Nominees) shall have the right to remove such Investor Nominee from the Board Representative of Directors. (d) If the Board of Directors shall determine in good faith in the exercise of its fiduciary duties, that nomination of any person designated by the Investor for election to the Board of Directors would be contrary to the best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in person, if such determination shall be made at a Board of Directors meeting at which an Investor Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a memberBoard of Directors meeting at which an Investor Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the Board of Directors as an Investor Nominee. The Company shall provide Board of Directors has approved the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members executives of the Board concurrently Investor set forth on Schedule 5.02(d) hereto as such materials are provided to Investor Nominees for all purposes hereof as of the other membersdate hereof.

Board Representation. (a) Upon During the Closingperiod commencing on the date of the Closing and ending on the Termination Date: (i) the Investor shall be entitled to nominate two individuals for election to the Company Board, and each party hereto that holds Voting Securities agrees to vote such Voting Securities in favor of the election of such individuals (the "Investor Directors") to the Company Board; (ii) the Company agrees, by action of the Company Board, (i) to establish, by appointment from among the members of the Company shall increase the size of the Board by one director Board, and maintain a Compensation Committee and (ii) to the Board shall fill this vacancy with greatest extent permitted by applicable law and the rules and regulations of NASDAQ or any national securities exchange on which the Company's Common Stock is listed, to appoint to the Compensation Committee one person of the Investor Directors, as designated by the Investor who shall Investor; (iii) if requested by the Investor, the Company agrees to elect or to cause to be reasonably acceptable elected, through action of the Company Board, to the Board and shall meet all qualifications required by written policy board of directors of or management committee, as the case may be, each Subsidiary of the CompanyCompany (the "Subsidiary Boards" and, including, without limitation, together with the Company Board, the Nominating and Governance Committee "Applicable Boards") a number of individuals designated by the Investor, who need not be directors, officers or employees of the Company or any of its Subsidiaries, that is, in the case of each Subsidiary Board, as nearly as is practicable, Proportional to the number of members of each such Subsidiary Board (together with the Investor's designated member of the Compensation Committee, the "Investor Designees"); (iv) the Company agrees to permit one of the Investor Directors or another individual designated by the Investor, who need not be a director, officer or employee of the Company or any of its Subsidiaries, to attend as a non-voting observer all meetings of the Executive Committee and the Audit Committee and Subsidiary Boards for which there shall be no Investor Designee and to transmit to such individual, at the time and in the manner sent to other members of such committees and board, all information and materials provided by the Company to such committee and board members; (v) the Company agrees to provide advance notice in accordance with the Delaware General Corporation Law and the Company's bylaws to each Investor Director with respect to each regular and special meeting of the Company Board and the ethics and compliance program Compensation Committee which notice shall, in the case of each special meeting, include a reasonable summary of the Company, in effect subject matter of the meeting; and (vi) the Company agrees to cause each person serving from time to time that apply as an executive officer, director or manager of the Company or any Subsidiary of the Company (other than the Investor Directors and the Investor Designees) to all nominees for execute and deliver to the Board Investor a Voting Letter substantially in the form of EXHIBIT A hereto (each a “Qualified Nominee”"Voting Letter"). (b) Until Each party hereto agrees to take such actions, including actions as necessary or desirable to nominate and elect individuals to the occurrence of an Investor Rights Termination Eventintended offices and, (i) at each annual meeting of in the stockholders case of the Company, actions by the Company Board, as shall be necessary or desirable in order that, effective as of the Closing: (i) the Company Board shall nominate and recommend for election one Qualified Nominee designated by include the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and Directors; (ii) the Compensation Committee shall include the Investor Director required by SECTION 10(A); (iii) each other Applicable Board shall include the Investor Designees to the extent required by subsection (ii) of SECTION 10(A); and (iv) each current executive officer and director of the Company and each current executive officer, director or manager of any of its Subsidiaries shall have executed and delivered to the Investor, a Voting Letter. (c) No Investor Director or Investor Designee shall be subject to removal, without cause, from any Applicable Board or the Compensation Committee other than with the express written consent of the Investor. If the Investor shall determine to remove any Investor Director or Investor Designee from any Applicable Board or the Compensation Committee, each party hereto agrees, upon written notice to such effect from the Investor, to take all actions reasonably necessary or desirable, including the voting of outstanding Voting Securities held by such party, in order to effect such action. Following such removal of an Investor Director or Investor Designee, the parties shall comply with the other provisions of this Section to ensure that the removed individual is replaced by another Investor Director or Investor Designee, as appropriate. (d) If a vacancy is created on any Applicable Board or the Compensation Committee by virtue of the death, disability, retirement, resignationresignation or removal of any Investor Director or Investor Designee from any Applicable Board or the Compensation Committee, removal or other vacancy each party hereto shall, to the extent permitted by applicable laws and regulations, take promptly any and all actions, including the voting of a director designated outstanding Voting Securities held by such party and, in the case of the Company, actions by the InvestorCompany Board, the Board shall elect as a director necessary or desirable to fill the such vacancy so created a Qualified Nominee with an individual designated in writing by the Investor so as to fill such vacancygive effect to the provisions of SECTION 10(A). (ce) The Board Representative Immediately following the Termination Date, the Investor shall be entitled cause the Investor Directors or Investor Designees to the same compensation and same indemnification in connection with his or her role as a director as the other members resign from all of the BoardApplicable Boards, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings effective as of the Board or any committees thereof, to the same extent as the other members of the BoardTermination Date. The Company shall notify Investor agrees to take all actions reasonably necessary or desirable, including the Board Representative voting of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative with copies of all noticesoutstanding Voting Securities held by it, minutes, consents and other materials provided in order to all other members of the Board concurrently as effect such materials are provided to the other membersaction.

Board Representation. (a) Upon Effective as of the Closing, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with cause one person designated by Cypress, by written notice to the Investor who shall Company not less than 10 Business Days prior to the Closing Date, to be reasonably acceptable appointed by the Board of Directors by resolution to the Board as a director (the "Cypress Director") and one person designated by Cypress to be appointed as a non-voting observer to the Board (the "Cypress Observer"). Thereafter, and for such period of time as Cypress (including for purposes of this Article III any Cypress Vehicles and Cypress Co-investors) continues to Beneficially Own in the aggregate the lesser of (i) Ordinary Shares and Ordinary Share Equivalents representing, on an as-converted basis, not less than 9.9% of the total voting power of the Company's then-outstanding Voting Securities or (ii) Equity Securities of the Company that constitute not less than 35% of the Purchased Securities (on an as-converted basis) acquired by Cypress on the Closing Date, the Company shall cause (A) one person designated by Cypress in a written notice delivered to the Company not less than 60 days prior to the annual meeting of the shareholders of the Company to be nominated by the Nominating Committee for election or reelection to the Board at the next annual meeting of the shareholders of the Company as the Cypress Director and (B) one person designated by Cypress in a written notice delivered to the Company at any time to be appointed as a non-voting observer to the Board as the Cypress Observer. Any Cypress Director shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees applicable requirements for the Board qualification of membership in the board of directors as specified in the Sarbanes-Oxley Act of 2002 (a “Qualified Nominee”the "Sarbanes-Oxley Act") and The New ▇▇▇▇ ▇▇▇▇▇ ▇▇▇hange, Inc.'s Liste▇ ▇▇▇▇▇▇▇ ▇▇▇▇al (the "NYSE Listing Rules"). (b) Until At all times during which Cypress is entitled to designate a Cypress Director, the occurrence Company shall take all action as may be necessary or appropriate under applicable law and the Company's Memorandum and Articles of an Investor Rights Termination EventAssociation, and use all other reasonable best efforts, to (i) include the Cypress Director in the slate of nominees for election to the Board at each annual or special meeting of shareholders at which the stockholders Cypress Director's term of the Companyoffice is to expire or in which a Cypress Director is otherwise nominated for election, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon solicit the vote of such shareholders in favor of the election, and against the removal from office, of the Cypress Director. (c) Cypress shall be entitled at any time (with or without cause) to cause any Cypress Director or Cypress Observer nominated pursuant to Section 3.1(a) to be removed from the Board, and in such event the Company will take such action as is reasonably required to effectuate such removal. In the event that a vacancy is created at any time by the death, disability, retirement, resignationresignation or removal (with or without cause) of any director or observer specified in Section 3.1(a), removal or other the Company shall cause the vacancy of a director created thereby to be filled by an appropriate individual designated by the Investor, the Board shall elect Cypress by written notice as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancysoon as reasonably practicable thereafter. (cd) The Board Representative Company shall be entitled to the same compensation reimburse each Cypress Director and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement Cypress Observer for documented, all reasonable out-of-pocket expenses incurred of such director in attending meetings connection with the performance of his or her duties as director or observer (as the case may be), and each such Cypress Director shall also be entitled to receive compensation and indemnity arrangements equivalent to that received by all other outside directors of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersCompany.

Board Representation. (a) Upon In addition to the Closingtwo representatives of the Fund who may serve on the Company's Board of Directors pursuant to the Stock and Warrant Purchase Agreement dated October 19, 2000, at any time on or after the Stockholder Approval Certification Date (ias that term is defined in the Series G Certificate of Designation), the Fund may designate one additional, independent director to serve on the Company's Board of Directors (the "Independent Director") subject to approval of the Board of Directors, which approval shall not be unreasonably withheld. Prior to the Fund appointing the Independent Director, the Company shall increase use its best efforts to cause a vacancy to be created on its Board of Directors (by increasing the size number of members of the Board by one director and (ii) of Directors or otherwise), and, within 21 days of receiving notice from the Board Fund, the Company shall use its best efforts to cause the Independent Director to be selected to fill this vacancy with one person designated by such vacancy. With respect to the Investor who Company, the Independent Director shall be reasonably acceptable to an "independent director" within the Board meaning of Nasdaq Rule 4200(a)(14), an "outside director" within the meaning of Section 162(m) of the Code and shall meet all qualifications required the Regulations promulgated thereunder, and not (other than solely by written policy reason of serving as a director of the Company) an Affiliate, includingofficer, without limitationdirector, the Board, the Nominating and Governance Committee employee or agent of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”)any Investor. (b) Until On and after the occurrence of an Investor Rights Termination EventStockholder Approval Certification Date, (i) at each and commencing with the then next succeeding annual meeting of the stockholders of the CompanyCompany , the Company shall use its best efforts cause the Independent Director to be included in the slate of nominees recommended by the Board shall nominate and recommend to the Company's stockholders for election one Qualified Nominee designated by as directors, and the Investor to serve as a director on the Board (the “Board Representative”) and Company shall use its reasonable best efforts to cause the election of such person Independent Director, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to be elected vote, in favor of the election of such person. (c) In the event the Independent Director shall cease to serve as a director on for any reason, the Board (it being understood that such Qualified Nominee Company shall not use its reasonable efforts to cause the vacancy resulting thereby to be in addition to the person filled by a substitute Independent Director designated by the Investor Fund in accordance with and serving on meeting the Board pursuant to requirements of Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person8.10(a); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon the Closing, (i) the Company The Board of Directors shall increase the size of elect or appoint to the Board by of Directors one director and (ii1) the Board shall fill this vacancy with one person nominee designated by the Investor who shall be reasonably acceptable to (such person, or replacement designated by the Board and shall meet all qualifications required by written policy Investor, the "Investor Nominee"), effective as of the Company, including, without limitation, Closing Date. Commencing with the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall be entitled to present to the Board shall nominate and recommend of Directors or the nominating committee thereof the Investor Nominee for election one Qualified Nominee designated by at each annual meeting of stockholders of the Investor to serve as a director on Company and the Board (the “Board Representative”) and Company shall use its reasonable best efforts to cause such person the election to be elected to serve as a director on the Board (it being understood that of Directors of such Qualified Investor Nominee. If the Board of Directors becomes a classified board, the Board of Directors shall designate the class in which the Investor Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) aboveserve, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its each annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard of the Company at which the term of the Investor Nominee shall expire, the Investor shall be entitled to present to the other nominees Board of Directors or the nominating committee thereof the Investor Nominee for election at such annual meeting of stockholders of the Company and the Company shall use its best efforts to cause the election to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election Board of Directors of such Qualified Nominee as director and (ii) upon Investor Nominee. In the event of the death, disability, retirementresignation or removal of an Investor Nominee, resignationthe Investor shall designate a replacement for such director, removal which replacement the Company shall cause to be elected or other vacancy appointed to the Board of a director Directors. (b) The Company shall cause the Investor Nominee designated for election to the Board of Directors to be included in the slate of nominees recommended by the InvestorBoard of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the Board shall elect as a director to fill election of each such Investor Nominee, including soliciting proxies in favor of the vacancy so created a Qualified Nominee designated by the Investor to fill election of such vacancyperson. (c) The Board Representative Investor shall be entitled to designate an Investor Nominee for election to the same compensation and same indemnification in connection with his or her role as a director Board of Directors so long as the other members Investor and its Affiliates Beneficially Own (as defined below) all of the BoardShares or any Conversion Shares issued upon conversion thereof and the Warrant and any of the Warrant Shares issued upon exercise thereof. If at any time the Investor and its Affiliates do not Beneficially Own all of the Shares or any Conversion Shares issued upon conversion thereof and the Warrant and any of the Warrant Shares issued upon exercise thereof, the Company's obligations pursuant to this Section 6.1 shall terminate and shall be entitled of no further force or effect. "Beneficially Own" with respect to reimbursement for documentedany securities means having "beneficial ownership" of such securities (as determined pursuant to Rule 13d-3 promulgated under the 1934 Act as in effect on the date hereof, reasonable out-of-pocket expenses incurred in attending meetings except that a Person shall be deemed to Beneficially Own all such securities that such Person has the right to acquire by conversion, exercise of option or otherwise whether such right is exercisable immediately or after the Board or any committees thereof, to the same extent as the other members passage of the Boardtime). The Company shall notify the Board Representative of all regular terms "Beneficial Ownership" and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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"Beneficial Owner" have correlative meanings.

Board Representation. (a) Upon Each of USRG and ETP shall have the Closingright to designate one Qualified Director for election to the Company’s Board of Directors, (i) upon the Company terms and conditions set forth in this Section 2. The Nominating Committee shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable recommend to the Board of Directors that one Qualified Director designated by each of USRG and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board ETP (each a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board RepresentativeDirector Designee”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on and the Board (it being understood that of Directors shall use its reasonable efforts to cause the election of such designated Qualified Nominee shall not be in addition to Director with a term of office beginning no later than concurrently with or immediately following the person designated by the Investor and serving on Closing and, if the Board pursuant to Section 2.3(a) aboveof Directors is classified, and that ending no earlier than the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its third annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that of the Company will 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 pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor designate an individual to fill such vacancy. (c) The Company agrees with USRG that if ▇▇▇▇▇▇▇▇ ▇▇▇▇ is serving on the Board Representative 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 be appointed a member of the 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) the date of a Change of Control of the Company, and (iii) if the Closing has not occurred on or before June 30, 2012, 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 the Closing when it ceases to be the beneficial owner of at least 50% of the Series B Preferred Stock it would be entitled to receive if the same compensation and same indemnification in connection with his or her role as a director as shares of Series A Preferred Stock that it owns of record on the other members date hereof were converted pursuant to the provisions of Section F of Article IV of the Board, and shall be entitled to reimbursement for documented, reasonable outSecond Restated Certificate (assuming the over-of-pocket expenses incurred in attending meetings allotment option of the Board or any committees thereofunderwriters for Planned Public Offering is not exercised) or, prior to the same extent as Closing, on the other members date when it ceases to beneficially own at least 50% of the Board. The Company shall notify the Board Representative Series A Preferred Stock that it owns of all regular and special meetings record as of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersdate hereof.

Board Representation. (a) Upon The Company and the ClosingPurchaser shall take all reasonable action within their respective powers to cause one person named by the Purchaser to be appointed a member of the Board of Directors of the Company (the "PURCHASER DIRECTOR") to serve for a period commencing on the date that the Company obtains directors' and officers' liability insurance pursuant to Section 8.3 (or such date after the Closing Date as the Purchaser waives the requirement of such directors' and officers' liability insurance) and ending on the third anniversary of the Closing Date, (i) PROVIDED, that the Purchaser's right to appoint a member to the Board of Directors of the Company shall increase be extended to the size Mandatory Redemption Date if the Company does not complete a Qualifying Public Offering. At such time as the Purchaser and its affiliates no longer own any Shares, the Purchaser shall cause the Purchaser Director to resign from the Company's Board of Directors. The reasonable actions required of the Board by one director Company and (ii) the Purchaser in this Section 8.2 shall include, without limitation, to the extent within their respective powers, the nomination of the Purchaser Director, the execution of written consents, the calling of special meetings, the removal of directors, the filling of vacancies on the Board shall fill this vacancy with one person designated of Directors and the waiving of notice. During the period from the Closing Date until the term on the Board of Directors of the individual named by the Investor who Purchaser as the Purchaser Director begins, such individual shall be reasonably acceptable receive all notices and materials sent to the Board and shall meet all qualifications required by written policy of Directors of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members attend all meetings of the BoardBoard of Directors as an observer, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, receive compensation and benefits pursuant to the same extent Section 8.2(b) as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee though he were a member of the Board of which Directors. (b) The Purchaser Director shall receive the Board Representative is a member. The same compensation and benefits as those paid by the Company shall provide the Board Representative with copies of all notices, minutes, consents and to other materials provided to all other members of the Board concurrently as such materials are provided to the other membersnon-employee directors.

Board Representation. (a) Upon During the Closingperiod commencing on the date of the Closing and ending on the Termination Date: (i) the Investor shall be entitled to nominate two individuals for election to the Company Board, and each party hereto that holds Voting Securities agrees to vote such Voting Securities in favor of the election of such individuals (the "Investor Directors") to the Company Board; (ii) the Company agrees, by action of the Company Board, (i) to establish, by appointment from among the members of the Company shall increase the size of the Board by one director Board, and maintain a Compensation Committee and (ii) to the Board shall fill this vacancy with greatest extent permitted by applicable law and the rules and regulations of NASDAQ or any national securities exchange on which the Company's Common Stock is listed, to appoint to the Compensation Committee one person of the Investor Directors, as designated by the Investor who shall Investor; (iii) if requested by the Investor, the Company agrees to elect or to cause to be reasonably acceptable elected, through action of the Company Board, to the Board and shall meet all qualifications required by written policy board of directors of or management committee, as the case may be, each Subsidiary of the CompanyCompany (the "Subsidiary Boards" and, including, without limitation, together with the Company Board, the Nominating and Governance Committee "Applicable Boards") a number of individuals designated by the Investor, who need not be directors, officers or employees of the Company or any of its Subsidiaries, that is, in the case of each Subsidiary Board, as nearly as is practicable, Proportional to the number of members of each such Subsidiary Board (together with the Investor's designated member of the Compensation Committee, the "Investor Designees"); (iv) the Company agrees to permit one of the Investor Directors or another individual designated by the Investor, who need not be a director, officer or employee of the Company or any of its Subsidiaries, to attend as a non-voting observer all meetings of the Executive Committee and the Audit Committee and Subsidiary Boards for which there shall be no Investor Designee and to transmit to such individual, at the time and in the manner sent to other members of such committees and board, all information and materials provided by the Company to such committee and board members; (v) the Company agrees to provide advance notice in accordance with the Delaware General Corporation Law and the Company's bylaws to each Investor Director with respect to each regular and special meeting of the Company Board and the ethics and compliance program Compensation Committee which notice shall, in the case of each special meeting, include a reasonable summary of the Company, in effect subject matter of the meeting; and (vi) the Company agrees to cause each person serving from time to time that apply as an executive officer, director or manager of the Company or any Subsidiary of the Company (other than the Investor Directors and the Investor Designees) to all nominees for execute and deliver to the Board Investor a Voting Letter substantially in the form of EXHIBIT A hereto (each a “Qualified Nominee”"Voting Letter"). (b) Until Each party hereto agrees to take such actions, including actions as necessary or desirable to nominate and elect individuals to the occurrence of an Investor Rights Termination Eventintended offices and, (i) at each annual meeting of in the stockholders case of the Company, actions by the Company Board, as shall be necessary or desirable in order that, effective as of the Closing: (i) the Company Board shall nominate and recommend for election one Qualified Nominee designated by include the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and Directors; (ii) the Compensation Committee shall include the Investor Director required by SECTION 10(a); (iii) each other Applicable Board shall include the Investor Designees to the extent required by subsection (ii) of SECTION 10(a); and (iv) each current executive officer and director of the Company and each current executive officer, director or manager of any of its Subsidiaries shall have executed and delivered to the Investor, a Voting Letter. (c) No Investor Director or Investor Designee shall be subject to removal, without cause, from any Applicable Board or the Compensation Committee other than with the express written consent of the Investor. If the Investor shall determine to remove any Investor Director or Investor Designee from any Applicable Board or the Compensation Committee, each party hereto agrees, upon written notice to such effect from the Investor, to take all actions reasonably necessary or desirable, including the voting of outstanding Voting Securities held by such party, in order to effect such action. Following such removal of an Investor Director or Investor Designee, the parties shall comply with the other provisions of this Section to ensure that the removed individual is replaced by another Investor Director or Investor Designee, as appropriate. (d) If a vacancy is created on any Applicable Board or the Compensation Committee by virtue of the death, disability, retirement, resignationresignation or removal of any Investor Director or Investor Designee from any Applicable Board or the Compensation Committee, removal or other vacancy each party hereto shall, to the extent permitted by applicable laws and regulations, take promptly any and all actions, including the voting of a director designated outstanding Voting Securities held by such party and, in the case of the Company, actions by the InvestorCompany Board, the Board shall elect as a director necessary or desirable to fill the such vacancy so created a Qualified Nominee with an individual designated in writing by the Investor so as to fill such vacancygive effect to the provisions of SECTION 10(a). (ce) The Board Representative Immediately following the Termination Date, the Investor shall be entitled cause the Investor Directors or Investor Designees to the same compensation and same indemnification in connection with his or her role as a director as the other members resign from all of the BoardApplicable Boards, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings effective as of the Board or any committees thereof, to the same extent as the other members of the BoardTermination Date. The Company shall notify Investor agrees to take all actions reasonably necessary or desirable, including the Board Representative voting of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative with copies of all noticesoutstanding Voting Securities held by it, minutes, consents and other materials provided in order to all other members of the Board concurrently as effect such materials are provided to the other membersaction.

Board Representation. (a) Upon the Closing, (i) the Company The Board of Directors shall increase the size elect a total of the Board by one director and (ii) the Board shall fill this vacancy with one person three nominees designated in writing by the Investor who shall be reasonably acceptable prior to the Board and shall meet all qualifications required by written policy of the CompanyClosing (such persons, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director replacements designated by the Investor, the "Investor Nominees"), to the Board of Directors effective as of the Closing Date, to be allocated to Class I, Class II and Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall elect as be entitled to present to the Board of Directors or the nominating committee thereof a director number of nominees for election to fill the vacancy so created class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election and the Company shall use its best efforts to cause the election to the Board of Directors of such Investor Nominees. If the Board of Directors shall cease to be a Qualified classified board, the Investor shall be entitled to present to the Board of Directors or the nominating committee thereof three nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board of Directors. (b) The Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to Section 5.02(a) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the election of each such Investor to fill Nominee, including soliciting proxies in favor of the election of such vacancyperson. (c) The Board Representative Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to designate Investor Nominees for election to the same compensation Board of Directors in the event that the Investor and same indemnification its Affiliates Beneficially Own, in connection with his or her role as a director as the other members aggregate, less than 50% of the Board, and Investor Original Number of Conversion Shares. In the event that the Investor shall not be entitled to reimbursement designate Investor Nominees for documented, reasonable out-of-pocket expenses incurred in attending meetings of election to the Board of Directors, the Investor Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Investor Original Number of Conversion Shares specified in this Section 5.02(c). If an Investor Nominee does not resign on or any committees thereof, prior to such thirtieth day as required pursuant to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee immediately preceding sentence, a majority of the Board of which Directors (excluding any Investor Nominees) shall have the right to remove such Investor Nominee from the Board Representative of Directors. (d) If the Board of Directors shall determine in good faith in the exercise of its fiduciary duties, that nomination of any person designated by the Investor for election to the Board of Directors would be contrary to the best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in person, if such determination shall be made at a Board of Directors meeting at which an Investor Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a memberBoard of Directors meeting at which an Investor Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the Board of Directors as an Investor Nominee. The Company shall provide Board of Directors has approved the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members executives of the Board concurrently Investor set forth on Schedule 5.02(d) hereto as such materials are provided to Investor Nominees for all purposes hereof as of the other membersdate hereof.

Board Representation. (a) Upon From the ClosingClosing Date until XL no longer owns at least 20% of the principal amount of the outstanding Debentures, (ix) the Company shall increase the size cause all of the Board by one director and XL Designees (iias defined below) the Board shall fill this vacancy with one person designated by the Investor who shall to be reasonably acceptable nominated for election to the Board and shall meet all qualifications required by written policy board of directors of the Company at the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board 's next stockholders' meeting and the ethics Company shall support and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause the election of such person individuals to the board of directors of the Company and (y) XL shall have the right to request, and upon such request the Company shall cause, the XL Designees to be elected to serve as a director on the Board (it being understood that boards of directors of each of the Company's direct and indirect Subsidiaries. In addition, all such Qualified Nominee XL Designees will be permitted to serve on any committees, including any executive committee of the board of directors of the Company and each Subsidiary, unless such XL Designee is not qualified therefor under applicable law, rule or regulation, in which event XL shall not be have the right to select one individual to observe all such meetings in addition substitution therefor. "XL Designees" shall mean a number of individuals designated by XL equal to the person designated by greater of (x) two and (y) the Investor and serving number derived from multiplying the number of seats on the Board pursuant to Section 2.3(aapplicable board of directors times a fraction the numerator of which is the number of shares of Common Stock of the Company owned by XL (assuming conversion of all Debentures held by XL) aboveand the denominator of which is the number of outstanding shares of Common Stock of the Company on a Fully Diluted Basis (rounding up in the case of any fractions). At any time while an XL Designee is not a member of the Company's and each such Subsidiary's boards of directors, at the sole discretion of XL, XL may appoint a representative of XL, and that the Investor’s Company and each such Subsidiary will permit such representative, to attend all meetings of the boards of directors of the Company and each such Subsidiary and any committees thereof. XL will continue to have the right to designate a Qualified Nominee the XL Designees for election or appointment to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require boards of directors of the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of and each such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification Subsidiary in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings lieu of any committee representative of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersXL.

Board Representation. 7.1 OSI shall have the right to designate one nominee (a) Upon the Closing, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable satisfactory to the Board and shall meet all qualifications required by written policy Company, provided that Mr. ▇▇▇▇▇▇ ▇▇▇▇▇▇ is deemed satisfactory to the Company) (the "Nominee") for election as a member of the Company, including, without limitation, 's Board of Directors within 30 days after the Board, the Nominating and Governance Committee of the Board Closing Date and the ethics Company and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall will use its reasonable best efforts to cause such person Nominee to be elected to serve as a director of the Company and re-elected (to the extent required by this Section 7). Such best efforts shall include (a) nomination of the Nominee for election as a director of the Company in any solicitation of proxies or other communication to shareholders regarding the nomination of persons for election as the Company's directors; and (b) in any solicitation of proxies or other communication to shareholders regarding the nomination of persons for election as the Company's directors, nominating a number of nominees not greater than the number of seats on the Company's Board (it being understood that such Qualified Nominee shall not be of Directors open for election in addition the applicable election. The Company's obligations under this Section 7 are subject to the person designated Nominee completing and executing a Consent to Act as a Director and personal information forms in the forms required by the Investor and serving on TSX Venture Exchange. In the Board pursuant to Section 2.3(a) above, and event that the Investor’s TSX Venture Exchange does not approve the Nominee as a director of the Company, OSI will cause the Nominee to resign as a director of the Company. 7.2 If, at any time prior to the 2003 annual meeting of the Company's shareholders, OSI sells any of its Shares, Warrants and/or Warrant Shares, OSI shall no longer have the right to designate a Qualified Nominee nominee for election as a director of the Company. Except as set forth in the preceding sentence, if OSI holds more than 750,000 of the Shares and Warrant Shares (including Warrant Shares issuable upon exercise of the Warrants), OSI shall have the right to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require designate a nominee for election as a director of the Company to postpone its at the Company's annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard shareholders, provided that this right shall terminate immediately after the 2006 annual meeting of the Company's shareholders, provided further that OSI shall continue to have the other nominees rights the provided by applicable law and the Company's charter and bylaws to the Board, including that the Company will not be obligated holders of Common Shares to pay extraordinary costs with regard to nominate and vote upon the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancydirectors. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon the Closing, (i) the Company The Board of Directors shall increase the size elect a total of the Board by one director and (ii) the Board shall fill this vacancy with one person three nominees designated in writing by the Investor who shall be reasonably acceptable prior to the Board and shall meet all qualifications required by written policy of the CompanyInitial Closing (such persons, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director replacements designated by the Investor, the "Investor Nominees"), to the Board of Directors effective as of the Initial Closing Date, to be allocated to Class I, Class II and Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Initial Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall elect as be entitled to present to the Board of Directors or the nominating committee thereof a director number of nominees for election to fill the vacancy so created class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election and the Company shall use its best efforts to cause the election to the Board of Directors of such Investor Nominees. If the Board of Directors shall cease to be a Qualified classified board, the Investor shall be entitled to present to the Board of Directors or the nominating committee thereof three nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board of Directors. (b) The Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to Section 5.02(a) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its best efforts to cause the election of each such Investor to fill Nominee, including soliciting proxies in favor of the election of such vacancyperson. (c) The Board Representative Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to designate Investor Nominees for election to the same compensation Board of Directors in the event that the Investor and same indemnification its Affiliates Beneficially Own, in connection with his or her role as a director as the other members aggregate, less than 50% of the Board, and Investor Original Number of Conversion Shares. In the event that the Investor shall not be entitled to reimbursement designate Investor Nominees for documented, reasonable out-of-pocket expenses incurred in attending meetings of election to the Board of Directors, the Investor Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Investor Original Number of Conversion Shares specified in this Section 5.02(c). If an Investor Nominee does not resign on or any committees thereof, prior to such thirtieth day as required pursuant to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee immediately preceding sentence, a majority of the Board of which Directors (excluding any Investor Nominees) shall have the right to remove such Investor Nominee from the Board Representative of Directors. (d) If the Board of Directors shall determine in good faith in the exercise of its fiduciary duties, that nomination of any person designated by the Investor for election to the Board of Directors would be contrary to the best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in person, if such determination shall be made at a Board of Directors meeting at which an Investor Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a memberBoard of Directors meeting at which an Investor Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the Board of Directors as an Investor Nominee. The Company shall provide Board of Directors has approved the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members executives of the Board concurrently Investor set forth on Schedule 5.02(d) hereto as such materials are provided to Investor Nominees for all purposes hereof as of the other membersdate hereof.

Board Representation. Subject to the terms and conditions of this Section 4.2, the Board of Directors of the Company shall consist of five directors. So long as Investor or its affiliates hold a majority of the outstanding shares of Series A Preferred Stock, Investor shall be entitled to nominate, elect, remove and replace three members of the Company’s Board of Directors (a) Upon with all such directors nominated and elected by Investor being hereinafter referred to as the Closing“Series A Directors”); provided, however, that if Investor or its affiliates fail to purchase either of (i) the Company shall increase Second Tranche Shares despite the size occurrence of the Board by one director Second Tranche Trigger Event and the fulfillment of the conditions of Article VIII of the Purchase Agreement, or (ii) the Board shall fill this vacancy with one person designated by Third Tranche Shares despite the occurrence of the Third Tranche Trigger Event and the fulfillment of the conditions of Article VIII of the Purchase Agreement, within 30 days of any such obligation of Investor who to purchase such Purchased Shares, the number of Series A Directors shall be reasonably acceptable reduced by one for each such Tranche that is not so purchased. Investor and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be entitled to the Board nominate, elect, remove and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee replace one member of the Board of Directors, and shall elect such director as soon as practicable following the ethics and compliance program First Tranche Closing. The holders of the Companyoutstanding Common Stock shall be entitled to nominate, in effect from time to time that apply to all nominees for elect, remove and replace the remaining member(s) of the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting Directors. Common Stock issuable upon conversion of the stockholders Series A Preferred Stock is not deemed to be outstanding Common Stock for purposes of the Company, the Board this paragraph unless and until actually issued. All directors shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve a one-year term and until their successors have been duly elected and qualified. Any director may be removed, with or without cause, by the holder or holders of equity securities who nominated such director, as applicable. In the event a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investorposition becomes vacant, the Board holder or holders of securities who nominated the director whose position has become vacant shall elect as a director to fill have the vacancy so created a Qualified Nominee designated by the Investor sole right to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification . Except as set forth in connection with his or her role as a director as the other members of the BoardSection 4.6, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending at all meetings of the Board or any committees thereofof Directors, to the same extent as the other members presence of at least two-thirds of the Board. The Company total number of directors shall notify constitute a quorum for the Board Representative transaction of all regular business and special meetings the act of a majority of the Board and directors present at any meeting at which there is a quorum shall notify constitute the Board Representative of all regular and special meetings of any committee act of the Board of which Directors. Each Principal Stockholder and Investor hereby agree to vote their shares of Common Stock (or Series A Preferred Stock, as the Board Representative case may be) to effect the terms and conditions of this Article IV and irrevocably instructs the Company to disregard any vote, consent, proxy, or voting instruction given to the Company by such stockholder or Investor that relates to the nomination or election of directors and is not in accordance with the provisions of this Agreement. Each Principal Stockholder and Investor shall hold the Company harmless from any liability as a memberresult of the Company’s disregarding of any vote such stockholder or investor attempts to cast in contravention of this Agreement. The Company shall provide customary director and officer liability insurance coverage for all directors in such amounts, and underwritten by such insurance company, as shall be approved by the Board Representative with copies of all notices, minutes, consents Directors and other materials provided to all other members of the Board concurrently as such materials are provided to the other membersSeries A Directors.

Board Representation. (a) Upon The Board of Directors shall elect the Closing, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable CEO to the Board and of Directors effective not later than the Closing Date. The CEO shall meet all qualifications required by written policy be included as a director in Class III. So long as the CEO serves as chief executive officer of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the CompanyCompany at which Class III directors are up for election, the Board of Directors or the Nominating Committee thereof shall nominate and recommend include the CEO for election one Qualified Nominee to such class of directors at such annual meeting. If the Board of Directors shall cease to be a classified board, the Board of Directors or the Nominating Committee thereof shall include the CEO for election to the Board of Directors at each annual meeting of stockholders of the Company for so long as the CEO serves as chief executive officer of the Company. (b) The Company shall cause the CEO to be included in the slate of nominees recommended by the Board of Directors to the Company's stockholders for election as directors at each annual meeting of the stockholders of the Company as is required by Section 5.02(a) hereof, and shall use its best efforts to cause the election of the CEO, including soliciting proxies in favor of the election of the CEO. (c) The Board of Directors shall, subject to Section 5.02(g) hereof, elect four nominees designated in writing by the Investor prior to the Closing (such persons, or replacements designated by the Investor, the "Investor Nominees"), to serve as a director on the Board of Directors effective as of the Closing Date in Class I and Class II as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall be entitled to present to the Board of Directors or the Nominating Committee thereof a number of nominees for election to the class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election. If the Board of Directors shall cease to be a classified board, the Investor shall be entitled to present to the Board of Directors or the Nominating Committee thereof four nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee (other than pursuant to Section 5.02(e) hereof), the “Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board Representative”of Directors, subject to Section 5.02(g) hereof. (d) Subject to Section 5.02(g) hereof, the Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to the second sentence of Section 5.02(c) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its reasonable best efforts to cause the election of each such person nominee, including soliciting proxies in favor of the election of such person. (e) Notwithstanding the foregoing provisions of this Section 5.02, the total number of Investor Nominees the Investor is entitled to be elected designate for election to serve as a director on the Board of Directors shall be reduced to (it being understood i) three, in the event that such Qualified Nominee shall not be the Investor and its Affiliates Beneficially Own, in addition to the person designated aggregate, at least 60%, but less than 80%, of the Original Number of Warrant Shares Beneficially Owned by the Investor and serving on its Affiliates, in the Board pursuant to Section 2.3(a) aboveaggregate, and that as of the Investor’s right to designate a Qualified Nominee to serve on Closing (the Board at any given time shall be limited to one person"Investor Original Warrant Shares"); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon two, in the deathevent that the Investor and its Affiliates Beneficially Own, disabilityin the aggregate, retirementat least 40%, resignationbut less than 60%, removal of the Investor Original Warrant Shares, (iii) one, in the event the Investor and its Affiliates Beneficially Own, in the aggregate, at least 20%, but less than 40%, of the Investor Original Warrant Shares, or other vacancy (iv) zero, in the event the Investor and its Affiliates Beneficially Own, in the aggregate, less than 20% of a director designated by the InvestorInvestor Original Warrant Shares. In the event that the number of Investor Nominees the Investor is entitled to designate for election to the Board of Directors is reduced pursuant to the preceding sentence, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members designate which of the Board, and Investor Nominees the Investor shall no longer be entitled to reimbursement designate for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, election to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of Directors. In the event that the number of Investor Nominees the Investor is entitled to designate for election to the Board of Directors is reduced pursuant to this Section 5.02(e), the relevant Investor Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Board Representative Investor's Beneficial Ownership is a memberreduced below the applicable threshold ownership level of Investor Original Warrant Shares specified in this Section 5.02(e). The Company For purposes of any calculation made pursuant to this Section 5.02(e) regarding the Beneficial Ownership of Investor Original Warrant Shares by the Investor or any of its Affiliates as of any time after the Closing, any Warrant Share transferred to any Person other than the Investor or its Affiliates shall provide be deemed not to be Beneficially Owned by the Board Representative with copies Investor or any of all noticesits Affiliates, minutes, consents and other materials provided to all other members regardless of whether such Warrant Share is subsequently acquired by the Board concurrently as such materials are provided to the other membersInvestor or any of its Affiliates.

Board Representation. (a) Upon Within 10 days of the Closingdate hereof, (i) the Company shall increase take all necessary action to cause the size of the Board by one director and Purchaser Designees (iias defined below) the Board shall fill this vacancy with one person designated by the Investor who shall to be reasonably acceptable elected to the Board and shall meet all qualifications required by written policy of Directors of the Company, including, without limitation. In connection with the 1998 Annual Meeting of Shareholders, the Board, Company shall take all necessary action to cause the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time Purchaser Designees to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) be nominated and shall use its reasonable best efforts to cause such person Purchaser Designees to be elected to serve as a director on the Board (it being understood that of Directors of the Company. Thereafter, in connection with any annual meeting of shareholders at which the term of a Purchaser Designee is to expire, the Company will take all necessary action to cause a Purchaser Designee to be nominated and use its best efforts to cause such Qualified Nominee shall not Purchaser Designee to be in addition elected to the person designated Board of Directors of the Company. In the event of any vacancy arising by reason of the Investor and serving on resignation, death, removal, or inability to serve of any of the Board pursuant to Section 2.3(a) abovePurchaser Designees, and that the Investor’s right Purchaser shall be entitled to designate a Qualified Nominee successor to fill such vacancy for the unexpired term. If any Purchaser Designee is not elected at an annual meeting of shareholders, Purchaser shall be entitled to designate an alternative Person and the Company shall, within 10 days of such designation, take all necessary action to cause such alternative Person to be elected to the Board of Directors of the Company. "Purchaser Designees" shall mean those individuals designated from time to time by Purchaser to serve on the Company's Board of Directors. The number of Purchaser Designees shall be the smallest number possible such that the ratio of Purchaser Designees to total number of directors (after election of the Purchaser Designees) is at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders greater than or take extraordinary solicitation efforts not taken with regard equal to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members ratio of the Board, number of Primary Shares held by Purchaser and shall be entitled its Affiliates to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings total number of shares of Common Stock outstanding (e.g. if there are 7 directors without the Purchaser Designees and Purchaser and its Affiliates own 27% of the Board or any committees thereofCommon Stock outstanding, to then the same extent as the other members number of the Board. The Company shall notify the Board Representative Purchaser Designees will be three, resulting in a total of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 members10 directors).

Board Representation. (a) Upon the Closing, (i) Following the Closing and for so long as DSM Beneficially Owns at least 4.5% of the Company’s outstanding Voting Securities, DSM shall have the right to nominate one individual for election to the Board; provided, that such individual shall be a member of DSM Parent’s Executive Committee (such individual, the “DSM Nominee”). (ii) In the event that DSM is no longer entitled to nominate a director to the Board pursuant to Section 2.1(a)(i) above, DSM shall promptly cause the then-serving DSM Director to immediately resign. If any such director is unwilling to resign, DSM will take all such actions as are necessary to cause the removal of the director, including voting (or causing to be voted) all of the Voting Securities Beneficially Owned by it in favor of such removal. (iii) For so long as DSM has the right to nominate a DSM Nominee for election pursuant to Section 2.1(a)(i), in connection with each election of directors, subject to Section 2.1(a)(v), the Company shall increase the size nominate such DSM Nominee for election as a director as part of the management slate that is included in the proxy statement of the Company relating to the election of directors. (iv) In the event that any DSM Director shall cease to serve as a director for any reason (other than the resignation or removal of such director as a result of DSM not having the right to nominate a director pursuant to Section 2.1(a)(i)), subject to Section 2.1(a)(v), DSM shall have the right to designate another DSM Nominee to fill the vacancy resulting therefrom. For the avoidance of doubt, it is understood that the failure of the stockholders of the Company to elect any DSM Nominee shall not affect the right of DSM to designate a DSM Nominee for election pursuant to Section 2.1(a)(i) in connection with any future election of directors of the Company. (v) Notwithstanding the foregoing, as a condition to any DSM Nominee’s appointment to the Board and nomination for election as a director of the Company at the Company’s annual meetings of stockholders: (A) DSM and such DSM Nominee must in all material respects provide to the Company (1) all information reasonably requested by one the Company that is required to be or customarily disclosed for directors, candidates for directors, and their affiliates in a proxy statement or other filings under applicable law or regulation or stock exchange rules or listing standards, in each case, relating to their nomination or election as a director of the Company and (ii2) the Board shall fill this vacancy with one person designated information reasonably requested by the Investor who Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to their nomination or election as a director of the Company, with respect to DSM Parent, its Subsidiaries and controlled Affiliates and the applicable DSM Nominee, in each case, to the same extent as all other directors of the Company; (B) such DSM Nominee must be qualified to serve as a director of the Company under the DGCL to the same extent as all other directors of the Company; (C) no Disqualification Event shall be applicable to such DSM Nomine except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable; (D) such DSM Nominee shall be reasonably acceptable to the Board and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board Board; and (E) such DSM Nominee must satisfy the requirements set forth in the Company’s Corporate Governance Guidelines, code of conduct and securities trading policy, in each case as currently in effect with such changes thereto (or such successor policies) as are applicable to all other directors, as are adopted in good faith by the Board, and do not by their terms adversely impact any DSM Nominee relative to all other directors (provided that, for the avoidance of doubt, no DSM Nominee shall be required to qualify as an independent director under applicable stock exchange rules or securities laws and regulations). The Company will make all information requests pursuant to this Section 2.1(a)(v) in good faith in a timely manner that allows DSM and the ethics and compliance program DSM Nominee a reasonable amount of the Company, in effect from time to time that apply provide such information, and will cooperate in good faith with DSM and the DSM Nominee in connection with their efforts to all nominees for provide the Board (a “Qualified Nominee”)requested information. (bvi) Until DSM hereby covenants and agrees (A) not to designate or participate in the occurrence designation of an Investor Rights Termination Eventany director designee who, to DSM’s knowledge, is a Disqualified Designee, (iB) at each annual meeting that in the event DSM becomes aware that any individual previously designated by DSM is or has become a Disqualified Designee or that a Disqualification Event has become applicable to DSM or any of its Rule 506(d) Related Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or (d)(3) is applicable, then DSM shall notify the Company promptly in writing and as promptly as practicable DSM shall take such actions as are necessary to remove any such Disqualified Designee from the Board and designate a replacement designee who is not a Disqualified Designee, and (C) for so long as there is a DSM Director, DSM will comply with the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy as currently in effect with such changes thereto (or such successor policies) as are applicable to all other stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood Company that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right have rights to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other nominate members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon As long as DCEO continues to own at least 400,000 shares of the Purchased Shares acquired at the Closing, DCEO shall have an option to designate one nominee (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor such individual is hereinafter referred to as a "DuPont Designee(s)"), who shall must be reasonably acceptable a DCEO or DuPont employee, to the Board and of Directors. If Merrimac increases the number of directors to nine or more members, exclusive of any directorships held by a DuPont Designee, then DCEO shall meet all qualifications required by written policy have the option to designate, in its sole discretion, additional nominees, who must be DCEO or DuPont employees, to the Board of Directors so that, at the Company, including, without limitationearliest possible time after such increase, the Boardnumber of directorships held by DCEO shall be the number determined in accordance with Schedule 5.4 hereto. If DCEO exercises its option to designate a nominee or nominees, as the Nominating and Governance Committee of case may be, to the Board and of Directors, then Merrimac shall use its best efforts, as promptly as possible, to have the ethics and compliance program of the Company, in effect from time DCEO nominee(s) elected to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at Directors. At each annual meeting of the stockholders of Merrimac and at each special meeting of the Companystockholders of Merrimac involving the election of directors of Merrimac, and at any other time at which stockholders of Merrimac will have the Board shall nominate and recommend right to or will vote for or consent in writing regarding the election one Qualified Nominee designated by of directors of Merrimac, Merrimac agrees that, upon the Investor to serve as a director on the Board (the “Board Representative”) and shall request of DCEO, it will use its reasonable best efforts to cause such person and maintain the election to be elected to serve as a director on the Board (of Directors of the DuPont Designee(s). Upon disposition in any manner by DCEO of an amount of the Purchased Shares that results in it being understood that such Qualified Nominee owning less than 400,000 shares of the Purchased Shares acquired at the Closing, DCEO shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s forfeit its right to designate a Qualified Nominee nominee(s) to serve on the Board at any given time of Directors of Merrimac and immediately upon such disposition, the DuPont Designee(s), as the case may be, shall be limited resign as a member(s) of the Board of Directors of Merrimac. Until DCEO exercises its option to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard designate a nominee to the other nominees Board of Directors and for as long as DCEO maintains an equity position of 250,000 shares of Common Stock, or if for any reason DCEO's designee has not been elected to the BoardBoard of Directors, including that DCEO shall have the Company will not be obligated right to pay extraordinary costs with regard to the election have an observer present at all Board of such Qualified Nominee as director Director meetings and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending any committee meetings of the Board or any committees thereof, of Directors and to the same extent as the other members receive adequate notice of the Board. The Company shall notify the Board Representative of all regular such meetings and special meetings of the Board and shall notify the Board Representative of all regular and special meetings a copy of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersdistributed in connection therewith.

Board Representation. (a) Upon From the ClosingClosing Date -------------------- until XL no longer owns at least 20% of the principal amount of the outstanding Debentures, (ix) the Company shall increase the size cause all of the Board by one director and XL Designees (iias defined below) the Board shall fill this vacancy with one person designated by the Investor who shall to be reasonably acceptable nominated for election to the Board and shall meet all qualifications required by written policy board of directors of the Company at the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board 's next stockholders' meeting and the ethics Company shall support and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause the election of such person individuals to the board of directors of the Company and (y) XL shall have the right to request, and upon such request the Company shall cause, the XL Designees to be elected to serve as a director on the Board (it being understood that boards of directors of each of the Company's direct and indirect Subsidiaries. In addition, all such Qualified Nominee XL Designees will be permitted to serve on any committees, including any executive committee of the board of directors of the Company and each Subsidiary, unless such XL Designee is not qualified therefor under applicable law, rule or regulation, in which event XL shall not be have the right to select one individual to observe all such meetings in addition substitution therefor. "XL Designees" shall mean a number of individuals designated by XL equal to the person designated by greater of (x) two and (y) the Investor and serving number derived from multiplying the number of seats on the Board pursuant to Section 2.3(aapplicable board of directors times a fraction the numerator of which is the number of shares of Common Stock of the Company owned by XL (assuming conversion of all Debentures held by XL) aboveand the denominator of which is the number of outstanding shares of Common Stock of the Company on a Fully Diluted Basis (rounding up in the case of any fractions). At any time while an XL Designee is not a member of the Company's and each such Subsidiary's boards of directors, at the sole discretion of XL, XL may appoint a representative of XL, and that the Investor’s Company and each such Subsidiary will permit such representative, to attend all meetings of the boards of directors of the Company and each such Subsidiary and any committees thereof. XL will continue to have the right to designate a Qualified Nominee the XL Designees for election or appointment to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require boards of directors of the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of and each such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification Subsidiary in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings lieu of any committee representative of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersXL.

Board Representation. (a) Upon Parent shall be entitled to designate two people (the "Parent Representatives") for election to the Board, and the Company agrees, to the extent permitted by Law, to take such action as may be required under applicable Law (i) so that, effective as of the Closing, (i) the Company shall increase the size of the Board by one director and shall include the Parent Representatives, (ii) to include the Parent Representatives in any slate of nominees for Directors recommended by the Board shall fill this vacancy with one person designated for election by the Investor who shall be reasonably acceptable stockholders of the Company and (iii) to use the same efforts to cause the election of the Parent Representatives to the Board as the Company uses with respect to the Company's other nominees for Directors, including nominating such individuals to be elected as Directors; provided that such Parent Representatives must be either (A) senior executive officers of Parent at the time of their designation hereunder or (B) other people reasonably satisfactory to the Company at the time of their designation hereunder; and shall meet provided further that if all qualifications required by written policy of the members of the Parent Group, in the aggregate, own at least 1.5 million shares of Retained Stock and such ownership interest represents less than 5% of the total voting power of the Company's outstanding Voting Securities, includingthe number of Parent Representatives shall be reduced to one, without limitationand if all of the members of the Parent Group, in the aggregate, own less than 1.5 million shares of Retained Stock the number of Parent Representatives shall be reduced to zero. Parent shall cause each of its designees to the Board, other than the Nominating and Governance Committee initial Parent Representatives, to resign from the Board effective as of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”)Closing. (b) Until In the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as event that a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve vacancy is created on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon by the death, disability, retirement, resignation, resignation or removal (with or other vacancy without cause) of a director designated by the InvestorParent Representative, the Board Company shall elect as a director use its best efforts to fill cause the remaining Directors to cause the vacancy so created thereby to be filled by a Qualified Nominee designated new designee of Parent in accordance with the terms of Section 2.1, and the Company hereby agrees to take, or cause to be taken, at any time and from time to time, all actions necessary to accomplish the same. The Company shall not take any action to cause the removal of a Parent Representative, by stockholders of the Investor to fill such vacancyCompany, without cause, or otherwise. (c) The Board Representative shall be As long as Parent is entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, two Parent Representatives pursuant to the same extent as the other members terms of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any Section 2.1(a), each standing committee of the Board of which (other than the Board Representative is a member. The Company audit committee) shall provide the Board Representative with copies of all notices, minutes, consents and other materials provided to all other members include one of the Board concurrently as such materials are provided to the other membersParent Representatives.

Board Representation. (a) Upon Commencing with the Closingfirst of the annual, special or extraordinary meetings of shareholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of shareholders of the Company thereafter, the Purchaser shall be entitled to present to the Board of Directors or the nominating committee thereof one nominee (ieach such person, or replacement designated by the Purchaser, a “Purchaser Nominee”) for election to the Board of Directors at each such meeting of shareholders of the Company. In the event of the death, disability, resignation or removal of a Purchaser Nominee, or the failure of a Purchaser Nominee to qualify to act as a director pursuant to Section 5.9(e), the Purchaser shall designate a replacement for such director, which replacement the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall cause to be reasonably acceptable nominated for election to the Board and shall meet all qualifications required by written policy of Directors at the annual, special or extraordinary meeting of shareholders of the CompanyCompany the record date for which next follows the date on which such director ceased to be a director as a result of his or her death, includingdisability, without limitation, the Board, the Nominating and Governance Committee of resignation or removal from the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”)Directors. (b) Until The Company shall cause each Purchaser Nominee designated for election to the occurrence Board of an Investor Rights Termination Event, (iDirectors pursuant to Section 5.9(a) to be included in the slate of nominees recommended by the Board of Directors to the shareholders of the Company for election as directors at each annual the relevant meeting of the stockholders shareholders, and shall use its commercially reasonable efforts to cause the election of each such Purchaser Nominee, including soliciting proxies in favour of the election of such person. (c) Notwithstanding the foregoing provisions of this Section 5.9, the Purchaser shall not be entitled to designate a Purchaser Nominee for election to the Board of Directors as of the first date on which the Purchaser no longer owns any Purchased Shares of the Company. In the event that the Purchaser shall no longer be entitled to designate Purchaser Nominees for election to the Board of Directors pursuant to this Section 5.9(c), the Purchaser shall cause any Purchaser Nominee then serving as a director to resign from the Board shall nominate and recommend of Directors no later than the thirtieth (30th) day after the first day on which the Purchaser no longer owns any Purchased Shares of the Company. (d) If at any time that the Purchaser is entitled to designate a Purchaser Nominee for election one Qualified to the Board of Directors no Purchaser Nominee designated by the Investor to serve shall then be elected and serving as a director on the Board (the “Board Representative”) and of Directors, then until such time as a Purchaser Nominee shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative Purchaser shall be entitled to the same compensation and same indemnification in connection with his or her role as designate one person (each such person, a director as the other members of the Board, and “Board Observer”) who shall be entitled permitted to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of attend all regular and special meetings of the Board and of Directors. Each Board Observer shall enter into the Company’s standard form confidentiality agreement prior to acting as a Board Observer. The Company shall (i) notify the each Board Representative of all regular and special meetings Observer of any committee such meeting no later than the time at which it notifies any member of the Board of which the Directors of such meeting and (ii) provide to such Board Representative is a member. The Company shall provide the Board Representative with Observer copies of all notices, minutes, consents and written or other materials provided delivered to all other members of the Board concurrently of Directors. (e) The Purchaser Nominee shall, at all times, be qualified and eligible to act as such materials are provided a director pursuant to the other membersrequirements of the Canada Business Corporations Act and the Securities Laws, as applicable.

Board Representation. (a) Upon On the Closingdate of execution of this Agreement, the Company shall appoint to the Board the initial BSM Nominee, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Belausteguigoitia. As of immediately after the appointment of the initial BSM Nominee, the Board shall consist of six directors (the “Board Size”). Until the Percentage of Outstanding Subordinate Voting Shares is less than 10 percent, the Board shall not (i) the Company shall increase the size of propose or resolve to change the Board Size to fewer than six or greater than 10, except where otherwise required by one director and Applicable Law, as provided in Section 2.1(j), or with the prior written consent of BSM, (ii) present a slate of Company Nominees to the Board shall fill this vacancy with one person designated by shareholders of the Investor who shall be reasonably acceptable Company for election to the Board that is greater than or fewer than the number of directors to be elected at the applicable Directors Election Meeting, or (iii) except with the prior written consent of BSM, and shall meet all qualifications required by written policy subject to the obligations of the Company, including, without limitation, the Board, the Nominating and Governance Committee directors of the Board and Company to comply with their fiduciary duties under Applicable Law, fail to recommend against any proposal by the ethics and compliance program shareholders of the Company, in effect from time Company to time that apply to all nominees for increase or decrease the Board (a “Qualified Nominee”)Size to greater than or fewer than the number of Company Nominees presented for election at the applicable Directors Election Meeting. (b) Until the occurrence Percentage of an Investor Rights Termination EventOutstanding Subordinate Voting Shares is less than 10 percent, (i) at each annual meeting the Company covenants and agrees to nominate for election as directors of the stockholders Company at any Directors Election Meeting such number of BSM Nominees that represents BSM’s proportionate share of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on number of directors comprising the Board (rounded up or down to the “Board Representative”nearest whole number, with 0.50 being rounded up) and shall use its reasonable best efforts to cause such person to be elected to serve as a director based on the Board (it being understood that such Qualified Nominee shall not be in addition Percentage of Outstanding Subordinate Voting Shares as at the time BSM provides notice to the person designated Company in accordance with Section 2.1(c) hereof of the BSM Nominees proposed for election or the last day on which such notice may be provided if no notice is given by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancyBSM. (c) The Board Representative Company shall give BSM at least 60 days advance notice in writing of the date of any Directors Election Meeting, indicating the date of the Directors Election Meeting and number of Company Nominees to be presented for election at the Directors Election Meeting. At least 50 days before each Directors Election Meeting, BSM will, after consultation with the Company in good faith, deliver to the Company in writing the names of the BSM Nominees (the number of such BSM Nominees to be determined in accordance with Section 2.1(b)) together with the information regarding such BSM Nominees (including the number of Shares owned or controlled by each such BSM Nominee) that the Company is required to include in an information circular of the Company to be sent to shareholders of the Company in respect of such Directors Election Meeting. If BSM fails to timely deliver the names of the BSM Nominees for such Directors Election Meeting, then BSM shall be deemed to have nominated the same BSM Nominees that serve as directors of the Company at such time unless the number of BSM Nominees exceeds the number of BSM Nominees BSM is then entitled to nominate pursuant to Section 2.1(b), in which case the same compensation and same indemnification Company shall determine in connection with his or her role its sole discretion from such current BSM Nominees the BSM Nominees to be nominated for election. (d) Each BSM Nominee (i) must be acceptable to the Board, acting reasonably, (ii) must meet the qualification requirements to serve as a director as under the other members Act, the organizational documents of the BoardCompany and the rules of any stock exchange on which the Subordinate Voting Shares are then listed (other than any independence requirement), and (iii) shall not be a person of Ill Repute or a person who is not acceptable to any stock exchange on which the Subordinate Voting Shares are then listed or a securities regulatory authority having jurisdiction over the Company, and (iv) will not be required to be Independent to serve as a director; provided that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ shall be entitled deemed acceptable to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings the Board as of the Board or any committees thereof, to the same extent as the other members date of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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 membersthis Agreement.

Board Representation. (a) Upon the Closing, If: (i) the Company shall increase Plan of Arrangement is not completed in accordance with the size terms of the Board by one director Arrangement Agreement on or before August 31, 2016, or the Subscriber determines, acting reasonably, that the Plan of Arrangement will not be completed, and (ii) the Board shall fill this vacancy with one person designated by Subscriber beneficially owns at least ten percent of the Investor who total issued and outstanding Common Shares (calculated on a non-diluted basis): (a) the Subscriber shall be reasonably acceptable entitled to designate one individual (the “Nominee”) for election or appointment to the Board and shall meet all qualifications required by written policy board of directors of the Company, including, without limitation, Corporation (the “Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect ”) from time to time that apply to all nominees time, and such Nominee shall meet the individual qualification requirements for the Board (a “Qualified Nominee”).directors under applicable laws; (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of Corporation shall take all steps as may be necessary to appoint the stockholders of the Company, the Board shall nominate and recommend for election one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that as soon as reasonably possible after the Company will not Subscriber indicates its desire to nominate a person as the Nominee; (c) at the first annual meeting of shareholders of the Corporation following the end of the initial term of the Nominee at which directors of the Corporation are to be obligated elected, and at each meeting of shareholders of the Corporation thereafter at which directors are to pay extraordinary costs with regard be elected, the Corporation shall cause the Nominee to be included in the slate of nominees proposed by the Corporation to the shareholders of the Corporation for election as directors, and shall use commercially reasonable efforts to cause the election of such Qualified Nominee as director to the Board; (d) the Corporation shall notify in writing the Subscriber at least 30 days before publicly filing the management information circular in respect of any meeting of the shareholders of the Corporation at which directors of the Corporation are to be elected and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by Subscriber shall advise the Investor, Corporation and the Board of the Nominee within 15 days after receiving such notice; (e) if the Subscriber does not advise the Board of the name of the Nominee within the time set forth in Section 10(d), then the Subscriber shall elect be deemed to have designated its incumbent nominee for nomination for election at the relevant meeting of shareholders; (f) if the Nominee ceases to hold office as a director to fill of the vacancy so created a Qualified Nominee designated by Corporation, for any reason, the Investor to fill such vacancy. (c) The Board Representative Subscriber shall be entitled to nominate a replacement Nominee and the same compensation and same indemnification in connection with his or her role Corporation shall promptly take all steps as may be necessary to appoint such replacement Nominee to the Board; (g) so long as a director Nominee serves as a member of the Board, such Nominee shall be eligible to serve on any committee of the Board, provided that such Nominee satisfies the eligibility criteria for such committee and the Board has approved of the Nominee serving as a member of such committee; and (h) the Nominee shall be provided with equivalent directors’ insurance and indemnification as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.

Board Representation. (a) Upon The Board of Directors shall elect the Closing, (i) the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable CEO to the Board and of Directors effective not later than the Closing Date. The CEO shall meet all qualifications required by written policy be included as a director in Class III. So long as the CEO serves as chief executive officer of the Company, including, without limitation, the Board, the Nominating and Governance Committee of the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the CompanyCompany at which Class III directors are up for election, the Board of Directors or the Nominating Committee thereof shall nominate and recommend include the CEO for election one Qualified Nominee to such class of directors at such annual meeting. If the Board of Directors shall cease to be a classified board, the Board of Directors or the Nominating Committee thereof shall include the CEO for election to the Board of Directors at each annual meeting of stockholders of the Company for so long as the CEO serves as chief executive officer of the Company. (b) The Company shall cause the CEO to be included in the slate of nominees recommended by the Board of Directors to the Company's stockholders for election as directors at each annual meeting of the stockholders of the Company as is required by Section 5.02(a) hereof, and shall use its best efforts to cause the election of the CEO, including soliciting proxies in favor of the election of the CEO. (c) The Board of Directors shall, subject to Section 5.02(g) hereof, elect four nominees designated in writing by the Investor prior to the Closing (such persons, or replacements designated by the Investor, the "Investor Nominees"), to serve as a director on the Board of Directors effective as of the Closing Date in Class I and Class II as specified by the Investor. Commencing with the annual meeting of stockholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Investor shall be entitled to present to the Board of Directors or the Nominating Committee thereof a number of nominees for election to the class of directors up for election to the Board of Directors at such annual meeting equal to the number of Investor Nominees in such class immediately prior to such election. If the Board of Directors shall cease to be a classified board, the Investor shall be entitled to present to the Board of Directors or the Nominating Committee thereof four nominees for election to the Board of Directors at each annual meeting of stockholders of the Company. In the event of the death, disability, resignation or removal of an Investor Nominee (other than pursuant to Section 5.02(e) hereof), the “Investor shall designate a replacement for such director, which replacement the Company shall cause to be elected to the Board Representative”of Directors, subject to Section 5.02(g) hereof. (d) Subject to Section 5.02(g) hereof, the Company shall cause each Investor Nominee designated for election to the Board of Directors pursuant to the second sentence of Section 5.02(c) hereof to be included in the slate of nominees recommended by the Board of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, and shall use its reasonable best efforts to cause the election of each such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Boardnominee, including that the Company will not be obligated to pay extraordinary costs with regard to soliciting proxies in favor of the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancyperson. (ce) The Board Representative shall be Notwithstanding the foregoing provisions of this Section 5.02, the total number of Investor Nominees the Investor is entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled designate for election to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which Directors shall be reduced to (i) three, in the Board Representative is a member. The Company shall provide event that the Board Representative with copies of all noticesInvestor and its Affiliates Beneficially Own, minutesin the aggregate, consents and other materials provided to all other members at least 60%, but less than 80%, of the Board concurrently as such materials are provided to the other members.Original Number of Warrant

Board Representation. (a) Upon On or prior to the ClosingClosing Date, (i) the Board of Directors of the Company shall increase and the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall be reasonably acceptable to the Board and shall meet all qualifications required by written policy of the Company, including, without limitation, the Board, the Nominating and Governance Audit Committee of the Board of Directors shall each be expanded by one position, and Doug▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ll be appointed to fill the vacancies created by such expansion. Thereafter, for so long as Purchaser and the ethics and compliance program Permitted Transferees own, in the aggregate, at least the Minimum Interest, Purchaser shall be entitled to designate one director on the management slate of nominees to the Company's Board of Directors (the "Purchaser Designee"). In the event that the number of directors comprising the Company's Board of Directors (in addition to the Purchaser Designee) shall be six or more, in effect from time to time that apply to all nominees for the Board of Directors shall be expanded by an additional position, and Purchaser shall be entitled to designate an additional director on such management slate of nominees (the "Additional Designee"). At least 90 days prior to each annual meeting of stockholders at which a “Qualified Nominee”Purchaser Designee (and Additional Designee, if applicable) will stand for election, Purchaser shall provide written notice to the Company indicating the Purchaser Designee (and Additional Designee, if applicable) to be nominated by Purchaser at such annual meeting, and such notice shall set forth as to each Person proposed for nomination all information relating to such Persons that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act (including such Person's written consent to being named in the related proxy statement as a nominee and to serving as a director if elected). (b) Until Subject to applicable law, the occurrence Company shall use its best efforts at all times to take such action as is necessary to ensure that the nominating committee of an Investor Rights Termination Event, the Board of Directors (ior the full Board if there is no nominating committee) at each annual meeting of the Company shall nominate and recommend to the stockholders of the CompanyCompany that the stockholders elect the Purchaser Designee (and Additional Designee, if applicable) to the Board of Directors. As a condition precedent to the inclusion of any Purchaser Designee on any slate of nominees to be recommended to stockholders by the Board of Directors pursuant to Section 4.10(a), the nominating committee of the Board shall nominate (or the full Board if there is no nominating committee) may review the information provided pursuant to Section 4.10(a) to evaluate in good faith such Purchaser Designee's (and recommend for election one Qualified Nominee designated by such Additional Designee's) character and fitness to serve as a director. If the Investor nominating committee (or the full Board if there is no nominating committee) determines in good faith that any such Purchaser Designee (or Additional Designee) lacks the character or fitness to serve as a director based on the Board (the “Board Representative”) applicable legal and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative shall be entitled to the same compensation and same indemnification in connection with his or her role as a director as the other members of the Board, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any committee of the Board of which the Board Representative is a member. The Company shall provide the Board Representative 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.reasonable

Board Representation. (a) Upon the Closing, (i) the The Company shall increase cause one vacancy to be created on its Board of Directors (by increasing the size number of members of the Board by one director of Directors or otherwise) and (ii) at such time cause to be elected to the Board shall fill this vacancy with of Directors one person designated by GAP LP (the Investor who "GENERAL ATLANTIC DESIGNEE"), which designee shall initally be reasonably acceptable to William O. ▇▇▇▇▇. ▇▇▇ ▇▇▇▇ral Atlantic Designee shall serve in accordance with the Board Certificate of Incorporation and shall meet all qualifications required by written policy the Bylaws until the next succeeding annual meeting of stockholders of the Company, including, without limitation, Company to be held after such election for the Board, the Nominating and Governance Committee purpose of electing directors of the Board and class of which the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (General Atlantic Designee is a “Qualified Nominee”)member. (b) Until As long as the occurrence of an Investor Rights Termination Event, Purchasers or Affiliates thereof hold in the aggregate either (i) at least 5% of the shares of Common Stock outstanding or (ii) 30% of the Purchased Shares purchased by Purchasers pursuant to this Agreement, commencing with the next succeeding annual meeting of the stockholders of the Company at which directors of the class of which the General Atlantic Designee is a member are elected, and at each annual meeting of the stockholders of the CompanyCompany thereafter held for the purpose of electing directors of such class, GAP LP shall be entitled to designate to the Board shall nominate and recommend for election one Qualified Nominee designated by of Directors the Investor General Atlantic Designee to serve as one of the directors of the Company, which designee shall be reasonably acceptable to a director on majority of the members of the Board (of Directors. The Company shall cause such General Atlantic Designee to be included in the “slate of nominees recommended by the Board Representative”) of Directors to the Company's stockholders for election as directors, and the Company shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee General Atlantic Designee, including using its reasonably best efforts to cause officers of the Company who hold proxies (unless otherwise directed by the stockholder submitting such proxy) to vote such proxies in favor of the election of such General Atlantic Designee. As long as director and the Purchasers or Affiliates thereof hold in the aggregate either (i) at least 5% of the shares of Common Stock outstanding or (ii) upon 30% of the deathPurchased Shares purchased by Purchasers pursuant to this Agreement, disability, retirement, resignation, removal or other vacancy of a in the event that the General Atlantic Designee shall cease to serve as director designated by the Investorfor any reason, the Board Company shall elect as a director use its reasonable best efforts to fill cause the vacancy so created a Qualified Nominee designated resulting thereby to be filled by the Investor to fill such vacancyanother designee of GAP LP. (c) The Board Representative shall be entitled Notwithstanding anything to the same contrary contained in this Agreement, the Company shall provide such reimbursement and compensation to the General Atlantic Designee as is consistent with the reimbursement and same indemnification in connection with his or her role as a director as the compensation provided to other members of the BoardBoard of Directors. (d) Subject to applicable securities laws and Nasdaq regulations, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of all regular and special meetings of the Board and shall notify the Board Representative of all regular and special meetings of any each committee of the Board of which Directors shall include the Board Representative is a member. The Company shall provide the Board Representative 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 membersGeneral Atlantic Designee.

Board Representation. (a) Upon Commencing with the Closingfirst of the annual, special or extraordinary meetings of shareholders of the Company the record date for which next follows the Closing Date, and at each annual meeting of shareholders of the Company thereafter, the Purchaser shall be entitled to present to the Board of Directors or the nominating committee thereof one nominee (ieach such person, or replacement designated by the Purchaser, a "Purchaser Nominee") for election to the Board of Directors at each such meeting of shareholders of the Company. In the event of the death, disability, resignation or removal of a Purchaser Nominee, or the failure of a Purchaser Nominee to qualify to act as a director pursuant to Section 5.9(e), the Purchaser shall designate a replacement for such director, which replacement the Company shall increase the size of the Board by one director and (ii) the Board shall fill this vacancy with one person designated by the Investor who shall cause to be reasonably acceptable nominated for election to the Board and shall meet all qualifications required by written policy of Directors at the annual, special or extraordinary meeting of shareholders of the CompanyCompany the record date for which next follows the date on which such director ceased to be a director as a result of his or her death, includingdisability, without limitation, the Board, the Nominating and Governance Committee of resignation or removal from the Board and the ethics and compliance program of the Company, in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”)Directors. (b) Until The Company shall cause each Purchaser Nominee designated for election to the occurrence Board of an Investor Rights Termination Event, (iDirectors pursuant to Section 5.9(a) to be included in the slate of nominees recommended by the Board of Directors to the shareholders of the Company for election as directors at each annual the relevant meeting of the stockholders shareholders, and shall use its commercially reasonable efforts to cause the election of each such Purchaser Nominee, including soliciting proxies in favour of the election of such person. (c) Notwithstanding the foregoing provisions of this Section 5.9, the Purchaser shall not be entitled to designate a Purchaser Nominee for election to the Board of Directors as of the first date on which the Purchaser no longer owns any Purchased Shares of the Company. In the event that the Purchaser shall no longer be entitled to designate Purchaser Nominees for election to the Board of Directors pursuant to this Section 5.9(c), the Purchaser shall cause any Purchaser Nominee then serving as a director to resign from the Board shall nominate and recommend of Directors no later than the thirtieth (30th) day after the first day on which the Purchaser no longer owns any Purchased Shares of the Company. (d) If at any time that the Purchaser is entitled to designate a Purchaser Nominee for election one Qualified to the Board of Directors no Purchaser Nominee designated by the Investor to serve shall then be elected and serving as a director on the Board (the “Board Representative”) and of Directors, then until such time as a Purchaser Nominee shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that the Company will not be obligated to pay extraordinary costs with regard to the election of such Qualified Nominee as director and (ii) upon the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancy. (c) The Board Representative Purchaser shall be entitled to the same compensation and same indemnification in connection with his or her role as designate one person (each such person, a director as the other members of the Board, and "Board Observer") who shall be entitled permitted to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board or any committees thereof, to the same extent as the other members of the Board. The Company shall notify the Board Representative of attend all regular and special meetings of the Board and of Directors. Each Board Observer shall enter into the Company's standard form confidentiality agreement prior to acting as a Board Observer. The Company shall (i) notify the each Board Representative of all regular and special meetings Observer of any committee such meeting no later than the time at which it notifies any member of the Board of which the Directors of such meeting and (ii) provide to such Board Representative is a member. The Company shall provide the Board Representative with Observer copies of all notices, minutes, consents and written or other materials provided delivered to all other members of the Board concurrently of Directors. (e) The Purchaser Nominee shall, at all times, be qualified and eligible to act as such materials are provided a director pursuant to the other membersrequirements of the Canada Business Corporations Act and the Securities Laws, as applicable.

Board Representation. (a) Upon From and after the Closing until the second anniversary of the Closing, the pre-Closing shareholders of the Company will be entitled to the benefit of the continued representation on the Company Board of two of the existing directors (the “Company Nominees”). In the event of the resignation, termination or death of any Company Nominee (a “Retiring Nominee”), the remaining Company Nominee shall be entitled to name a replacement (“Replacement Nominee”) to the Retiring Nominee by written notice to the Company signed by the remaining Company Nominee. Upon appointment of the Replacement Nominee to the Company’s Board of Directors, the Replacement Nominee shall be considered within the meaning of the term Company Nominee as such term is used in this Section 4.11. At least one Company Nominee shall qualify as an independent director under American Stock Exchange Rule 121A(2) or any successor rule and meet the criteria for independence as set forth in Rule 10A-3(b)(1) under the Exchange Act or any successor rule (“Independence Requirements”). At least one Company Nominee shall be entitled to serve on each committee of the Board of Directors of the Company, provided, in the case of the audit committee, such Company Nominee satisfies the Independence Requirements. (b) At the Closing the authorized number of members of the Company Board shall be no more than eight (8) and Elixir will be entitled to appoint to the Company Board no less than three (3) directors (as such number may be adjusted after the Closing, the “Elixir Nominees”) as of the Closing Date. At least one of the Elixir Nominees shall satisfy the Independence Requirements. From and after the Closing Date Elixir will at all times be entitled to appoint to the Company Board a number of additional directors (who shall also be “Elixir Nominees”) equal to the Pro Rata Share. The Company and the Company Board will use their best efforts to (i) cause any additional Elixir Nominees to be elected to the Company shall increase the size of the Board by one director and (ii) ensure that the Board shall fill this vacancy with one person designated by quotient of (x) the Investor who shall be reasonably acceptable Elixir Nominees and (y) the authorized number of members of the Company Board, is at all times equal to the Board and shall meet all qualifications required by written policy of the CompanyPro Rata Share, including, without limitation: promptly calling a special meeting of the shareholders of the Company at the request of Elixir and recommending to the shareholders of the Company that they vote for the election of any additional Elixir Nominees to the Company Board. In the event of the resignation, termination or death of any Elixir Nominee (a “Retiring Elixir Nominee”), Elixir shall be entitled to name a replacement (“Replacement Elixir Nominee”) to the Retiring Elixir Nominee by written notice to the Company. Upon appointment of the Replacement Elixir Nominee to the Company Board, the Nominating and Governance Committee Replacement Elixir Nominee shall be considered within the meaning of the Board and the ethics and compliance program of the Company, term Elixir Nominee as such term is used in effect from time to time that apply to all nominees for the Board (a “Qualified Nominee”). (b) Until the occurrence of an Investor Rights Termination Event, (i) at each annual meeting of the stockholders of the Company, the Board shall nominate and recommend for election this Section 4.11. At least one Qualified Nominee designated by the Investor to serve as a director on the Board (the “Board Representative”) and shall use its reasonable best efforts to cause such person to be elected to serve as a director on the Board (it being understood that such Qualified Elixir Nominee shall not be in addition to the person designated by the Investor and serving on the Board pursuant to Section 2.3(a) above, and that the Investor’s right to designate a Qualified Nominee entitled to serve on the Board at any given time shall be limited to one person); provided that such efforts will not require each committee of the Company to postpone its annual meeting of stockholders or take extraordinary solicitation efforts not taken with regard to the other nominees to the Board, including that provided, in the Company will not be obligated to pay extraordinary costs with regard to case of the election of audit committee, such Qualified Elixir Nominee as director and (ii) upon satisfies the death, disability, retirement, resignation, removal or other vacancy of a director designated by the Investor, the Board shall elect as a director to fill the vacancy so created a Qualified Nominee designated by the Investor to fill such vacancyIndependence Requirements. (c) The Board Representative While serving on the Company Board, each Company Nominee who is not a member of management of the Company shall be entitled receive compensation (both cash and equity) and other benefits provided to the same compensation and same indemnification in connection with his or her role as a director as the other independent members of the BoardCompany Board generally. Notwithstanding the foregoing, and the Company shall be entitled to reimbursement maintain in effect, for documented, reasonable out-of-pocket expenses incurred in attending meetings the benefit of the Board or any committees thereof, Company Nominees with respect to the same extent their acts and omissions as the other members directors and officers of the Board. The Company shall notify either (i) the Board Representative existing policies (primary and excess) of all regular directors’ and special meetings officers’ liability insurance maintained by the Company as of the date of this Agreement and listed on Schedule 4.11(c) (“Existing D&O Policies”); provided, however that the Company may substitute for the Existing D&O Policies a policy or policies of comparable coverage. (d) From and after the Closing, the Company Board shall create and shall notify maintain a committee of the Company Board Representative (“Conflicts Committee”) made up exclusively of all regular and special meetings of any committee at least three (3) members of the Board of which Directors of the Board Representative is a memberCompany who satisfy the Independence Requirements and who are not then, and during two years prior to their appointment or election have not been, an officer, director, employee of or consultant or advisor to Elixir and or any Affiliate of Elixir. Elixir may appoint at least one representative to the Conflicts Committee if that person satisfies the foregoing criteria. The Company Conflicts Committee shall provide operate under a charter in the Board Representative with copies form of all notices, minutes, consents the Conflicts Committee Charter attached hereto as Exhibit C. The Conflicts Committee Charter shall not be amended or modified unless (i) such amendment or modification has been approved and other materials provided to all other recommended by a majority of the members of the Conflicts Committee and (ii) at least five (5) Business Days preceding the effective date of such amendment or modification the Company has filed with the Commission a current report on Form 8-K that accurately and fully discloses the proposed amendment or modification and the basis for the Conflicts Committee’s recommendation. (e) The Company, Elixir (in its capacity as stockholder of the Company), and the Company Board concurrently will do and will cause to be done all things necessary or desirable (including amending the organizational documents of the Company) as such materials are provided expeditiously as possible to give effect to this Section 4.11. Elixir agrees, on behalf of itself and its assignees, to vote all voting shares of the Company owned by Elixir or under its control for purposes of approving the election to the other membersCompany Board each of the Company Nominees, the Replacement Nominee and eligible members of the Conflicts Committee, as the case may be.