Common use of Board Representation Clause in Contracts

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. (a) The Company shall promptly cause two vacancies to be created take all permissible corporate action such that on its Board of Directors (by increasing the number of members Closing Date the size of the Board shall be increased by one (1) member, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) shall be appointed to the Board as a member of Directors or otherwise) and the class whose initial term expires at the Initial 2016 annual meeting of the Company’s stockholders. (b) After the Closing, the size of the Board shall initially be set at ten (10) members. (c) Subject to Section 2(a), from and after the Closing Date, the Company shall cause two persons ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇ is unavailable to continue to serve on the Board, such other person designated by ▇▇▇▇▇▇▇ and reasonably acceptable to the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nomineesCompany) to be selected to fill such vacancies. One of the persons designated nominated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons Company to serve on the Board of Directors. Such designees shall serve until (such director, the next succeeding annual meeting of stockholders of the Company to be held after such election. (b“Purchaser Designee”) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) for so long as the Fund holds ▇▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) has beneficial ownership of Shares, Warrants or Warrant Shares, in the aggregate, in an amount equal to at least fifty percent (50% %) of the shares Shares and Warrants issued to the ▇▇▇▇▇▇▇ Family Foundation on the Closing Date. In the event the ▇▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) no longer has beneficial ownership of Preferred Stock Shares, Warrants or Warrant Shares in the amount set forth in this Section 3(c), the Company may cause the Purchaser Designee to be replaced with a nominee acceptable to the Company. (d) The Purchaser Designee shall, when up for election, subject to the terms hereof and applicable law, be the Company’s nominee to serve on the Board and the Company shall solicit proxies for the Purchaser Designee to the same extent as it would for any of its other nominees to the Board. The Company’s proxy statement for the election of directors shall include the Purchaser Designee and the recommendation of the Board in favor of election of the Purchaser Designee. (e) For so long as such membership does not conflict with any applicable law or regulation or listing requirement of Nasdaq or other securities exchange on which the Common Stock issued or issuable upon conversion of is listed for trading (as determined in good faith by the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this AgreementBoard), the Fund Purchaser Designee shall be entitled to designate two directors to serve as a member of, or observer to, at such Purchaser Designee’s election, committees of the Company's Board of Directors Board. (one of whom at f) ▇▇▇▇▇▇▇ may, and ▇▇▇▇▇▇▇ may request the Fund's written election may be designated by an Additional Investor) or (ii) so long Purchaser Designee to, as the Fund holds 25% case may be, resign, at any time with or without cause. Any vacancy caused by the resignation of the shares of Common Stock issued or issuable upon conversion Purchaser Designee shall only be filled with another Purchaser Designee. Any vacancy created by any removal of the Preferred Shares (whether Purchaser Designee or not such shares have been converted) acquired by it under this Agreement, an election of ▇▇▇▇▇▇▇ to defer appointing the Fund Purchaser Designee shall also only be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her termfilled with another Purchaser Designee. The Company shall cause such designees not take any action to remove the Purchaser Designee or fill a vacancy reserved for the Purchaser Designee in each case without the consent of ▇▇▇▇▇▇▇ unless and until ▇▇▇▇▇▇▇ is no longer entitled to the Purchaser Designee in accordance with Section 2(c) above. (unless, after customary investigation g) In addition to any other indemnification rights the Purchaser Designee has pursuant to the Transaction Documents and the Company’s Certificate of any such person's qualificationsIncorporation and Bylaws, the Board of Directors reasonably determines in good faith Purchaser Designee that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by serves on the Board shall have the right to the Company's stockholders for election as directorsenter into, and the Company shall use its reasonable best efforts agrees to cause the election of such designeesenter into, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to votean indemnification agreement, in favor a form reasonably satisfactory to the Purchaser Designee, concurrent with such Purchaser Designee becoming a member of the election Board. The Company shall maintain director and officer insurance covering the Purchaser Designee on the same terms and with the same amount of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant coverage as is provided to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the other members of the Board of Directors of Board. The Company shall reimburse the Company, and to designate one reasonable expenses incurred by the Purchaser Designee in connection with attending (whether in person who shall be entitled to attend or telephonically) all meetings of the Board of Directors and or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The Purchaser Designee shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, deferred share units, restricted stock and other equity and equity-related awards, as is provided to receive minutes of all such meetings upon preparation thereofother non-employee directors. (ch) In The Company and the event any designee of the Fund (Purchasers shall take or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee taken all lawful action necessary to ensure at all times as of and following the Fund (Closing Date that the Company’s Certificate of Incorporation and Bylaws are not inconsistent with the provisions of this Agreement and the Transaction Documents or at the Fund's written election, by an Additional Investor)transactions contemplated hereby or thereby.

Board Representation. (a) The For so long as the S Shareholders, in the aggregate, Beneficially Own Voting Securities representing at least ten per cent. (10%) of the Voting Securities outstanding at such time, Capricorn may, upon written notice to the Company, designate two (2) individuals as Directors (each, a “Shareholder Designee”) and the Company shall appoint such Shareholder Designees as Directors and take all necessary actions to maintain their appointment (subject to this Clause 3.3); provided, however, that such Shareholder Designee shall satisfy the requirements set forth in Clause 3.3(b); provided, further, that, at such time that the S Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing ten per cent. (10%) of the Voting Securities outstanding at such time but still, in the aggregate, Beneficially Own Voting Securities representing at least the Ownership Threshold, Capricorn shall use its best endeavours to promptly cause two vacancies one (1) of its Shareholder Designees, if any, then appointed to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unlessto resign, after customary investigation of such persons' qualificationseffective immediately, from the Board and from any committees or subcommittees thereof to which the Shareholder Designee is then appointed or on which he or she is then serving, and the right of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally Capricorn to all nomineesappoint Shareholder Designees shall be permanently reduced from two (2) to be selected to fill such vacancies. One of the persons designated by the Fund mayone (1); provided, further, that, at such time that the Fund's written electionS Shareholders, be designated by an Additional Investorin the aggregate, but in no case cease to Beneficially Own Voting Securities representing at least the Ownership Threshold, Capricorn shall use its best endeavours to promptly cause each Shareholder Designee, if any, then appointed to the Holders Board to resign, effective immediately, from the Board and from any committees or subcommittees thereof to which the Shareholder Designee is then appointed or on which he or she is then serving, and the right of Preferred Stock collectively Capricorn to designate more than two persons Shareholder Designees shall permanently terminate. Capricorn hereby designates to serve on the Board as an initial Shareholder Designee, effective at the Closing, each of Directors▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. Such designees shall serve until the next succeeding annual meeting of stockholders of ▇▇▇▇▇▇▇▇▇, and the Company agrees, effective at the Closing, to promptly appoint ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ as Directors, and shall take all necessary actions to maintain their appointment (subject to this Clause 3.3). If for whatever reason, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and/or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ are not able to assume their function as director upon Closing, Capricorn will be held after such electionentitled to designate a replacement who meets the requirements of Clause 3.3(b). Upon the Closing, the Board shall consist of ten (10) Directors. (b) Commencing with such next succeeding annual meeting of stockholders of Notwithstanding anything to the Company referred contrary set forth in this Agreement, from and after the Effective Time, any Shareholder Designee designated by the Shareholders pursuant to in Section 8.10(a), Clause 3.3(a) or 3.3(d): (i) so long shall not be an Affiliate or Associate of any Shareholder; (ii) except in the case of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, shall qualify as the Fund holds 50% an “independent director” under applicable provisions of the shares of Preferred Stock Exchange Act and under applicable NYSE rules and regulations, or Common Stock issued or issuable upon conversion the applicable rules and regulations of the Preferred principal securities exchange on which the Ordinary Shares are then listed; (whether or not the Preferred Shares have been convertediii) acquired by it under this Agreementwould not, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may time of such designation, be designated by an Additional Investorrequired to disclose any information pursuant to Item 2(d) or (iie) so long of Schedule 13D (as in effect at the Fund holds 25% date of this Agreement) if such Shareholder Designee were the “person filing” such Schedule 13D; (iv) shall not, at the time of such designation, be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the shares of Common Stock issued SEC or issuable upon conversion of NYSE or pursuant to applicable law, including the Preferred Shares Companies Act and the CDDA; (whether or v) shall not such shares have been converted) acquired by it under this Agreement, during the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration term of his or her term. The Company shall cause such designees service as a Director be a director, officer, employee or Affiliate or Associate of a Competitor; and (unlessvi) shall, after customary investigation of any such person's qualifications, in the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 judgment of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) Corporate Governance and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members Nominating Committee of the Board of Directors of (the “Nominating Committee”), satisfy the requirements set forth in the Company, ’s Organisational Documents and Corporate Governance Guidelines (as in effect from time to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(btime), the Company shall use its reasonable best efforts in each case as are applicable to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).all non-executive Directors generally;

Board Representation. (a) The Company Stockholders, collectively, shall promptly cause two vacancies have the right to be created on its Board designate either ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or ▇▇▇▇ ▇▇▇▇▇▇▇, as they may choose, for election to the Company's board of Directors (directors by increasing such board at the number of members closing of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated transactions contemplated by the Fund (unlessPurchase Agreement, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding 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 distribution of additional or different securities in respect of, the Common Stock as a result of any recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction) and (ii) is either an employee of the Company or is subject to the noncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company ((i) and (ii) above, the "Board Qualifications"), the Company agrees to cause such Stockholder to be included in management's slate of nominees for election at each annual meeting of the stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting at the expiration of stockholders of the Company referred to in Section 8.10(a)his term, (i) for so long as such Stockholder meets the Fund holds 50% of Board Qualifications. If, however, both ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ meet the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this AgreementBoard Qualifications, the Fund Stockholders shall choose one of them to be entitled to designate two directors nominated for election to the Company's Board of Directors (one and the Company agrees to cause such Stockholder so chosen to be included in management's slate of whom nominees for election at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future each annual meetings meeting of the stockholders of the Company, a successor to replace any such director upon Company at the expiration of his term, for so long as such Stockholder meets the Board Qualifications. Further, for so long as the Stockholders collectively own in the aggregate not less than 800,000 shares of Common Stock (which threshold number of shares shall automatically be adjusted from time to time to reflect increases, decreases or her term. The Company shall cause such designees (unlessexchanges in, after customary investigation or the distribution of additional or different securities in respect of, the Common Stock as a result of any such person's qualificationsrecapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar transaction), the Board Company agrees to cause whichever of Directors reasonably determines in good faith that such person ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate a member of nominees recommended by the Board to the Company's stockholders for election as directors, and the Company shall use its reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue to be invited to attend meetings of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, Directors as an observer (so long as he is either an employee of the Fund shall be entitled to receive all notices and materials distributed Company or is subject to the members noncompetition covenants of Article VII of the Purchase Agreement or Section 7 of the Employment Agreement of even date herewith between him and the Company), unless the Board of Directors of the Company, and Company determines as to designate one person who shall be entitled to attend all any particular meeting or meetings that considerations of the Board of Directors and committees thereof and to receive minutes of all confidentiality make such meetings upon preparation thereofattendance inappropriate. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing From and after the Closing, until such time as the Purchaser Parties collectively no longer Beneficially Own a number of members shares of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally Purchased Shares equal to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds at least 50% of the Purchased Shares received by the Purchaser pursuant to this Agreement (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events, and provided that any shares of Common Stock issued upon conversion of shares of Preferred Stock or shall be treated as that number of shares of Preferred Stock with respect to which such shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreementwas converted into), the Fund Purchaser shall be entitled to designate two directors (2) persons, who shall be Partners, Managing Directors, Advisors or Principals of the Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC or their respective Affiliates (an “Affiliated Fund”), to serve on the Company's Company Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor“Purchaser Designees” and each a “Purchaser Designee”) or and (ii) so long as the Fund holds at least 25% (but less than 50%) of the Purchased Shares received by the Purchaser pursuant to this Agreement (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events, and provided that any shares of Common Stock issued or issuable upon conversion of the shares of Preferred Shares (whether or not Stock shall be treated as that number of shares of Preferred Stock with respect to which such shares have been converted) acquired by it under this Agreementof Common Stock was converted into), the Fund Purchaser shall be entitled to designate one director (1) Purchaser Designee. At such time that the Purchaser is no longer entitled to designate one or both Purchaser Designees pursuant to the previous sentence, the Purchaser shall promptly cause one or both Purchaser Designees, as applicable, to offer to resign from the Company Board. The Purchaser Designees shall initially be those persons named on Schedule 4.10 to this Agreement. A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Agreement for the remainder of such person’s term on the Company Board or, if earlier, death or resignation. The Company's ’s obligations to have any Purchaser Designee appointed to the Company Board of Directors, and, in either case, or nominate any Purchaser Designee for election as a director at relevant future annual meetings any meeting of the Company’s stockholders pursuant to this Section 4.10, as applicable, shall in each case be subject to such Purchaser Designee’s satisfaction of all requirements regarding service as a director of the Company under applicable Law and stock exchange rules regarding service as a director of the Company. The Purchaser Parties will cause each Purchaser Designee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations and provide such information as the Company Board may reasonably request to determine the Purchaser’s Designee’s eligibility and qualification to serve as a director of the Company Board. (b) From and after the Closing, the Company shall take such actions as are necessary to cause the Purchaser Designees to be nominated as members of the Company Board and shall, subject to applicable Law, include in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its stockholders in connection with any meeting of Company stockholders the recommendation of the Company Board that stockholders of the Company, a successor to replace any such director upon expiration Company vote in favor of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly Purchaser Designees and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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, solicit votes in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant Purchaser Designees to Section 8.10(a), or if the Fund is entitled to designate a director or directors to Company Board consistent with the Company's Board of Directors by virtue ’s efforts to solicit votes in favor of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors election of the Company, and ’s other nominees to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofCompany Board. (c) In The Company, the event any designee Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms and which shall provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Fund (or at the Fund's written election, by an Additional Investor) shall cease Company Board to serve as a director for any reason, other than by reason representatives of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use Purchaser and its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)Affiliates.

Board Representation. For such time as the Principal Members continue to collectively own at least (ai) The Company fifty percent (50%) of the Restricted Shares issued to the Principal Members pursuant to the Merger, and (ii) six and 6/10 percent (6.6%) of the issued and outstanding shares of Parent Common Stock (in the case of clauses (i) and (ii), whether or not remaining subject to Transfer Restrictions under Section 1.11, and subject to adjustment with respect to any share split, share combination or similar transaction) (the “Director Threshold”), the Principal Members shall have the right to nominate one Eligible Person as director to the Board. As promptly cause two vacancies to be created on its Board of Directors (by increasing as practicable after such nomination, Parent shall increase the number of members size of the Board of Directors or otherwise) by one seat and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, newly created vacancy be filled with the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended Eligible Person nominated by the Board Principal Members in accordance with this Section 6.9. With respect to the Company's any subsequent general meeting of Parent’s stockholders, Parent shall take all necessary action to recommend to Parent’s stockholders for election as directors, and the Company shall use its reasonable best efforts to cause the election of the nominated Eligible Person as a director, subject to the Director Threshold continuing to be met. If a Key Person becomes a Bad Leaver, such designeesKey Person, including voting all shares for which if then serving on the Company holds proxies (unless otherwise directed by Board, shall promptly resign from the stockholder submitting such proxy) or is otherwise entitled to voteBoard upon the Board’s request; provided, in favor that the right of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant Principal Members to Section 8.10(a), or if the Fund is entitled to designate a director or directors nominate an Eligible Person to the Company's Board of Directors shall not otherwise be affected by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all a Key Person becoming a Bad Leaver. If such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease Eligible Person ceases to serve as a director for any reason, other than by reason member of the Fund not being entitled to designate a designee as provided in Section 8.10(a) Board during his or 8.10(b)her term of office, the Company Principal Members shall use its reasonable best efforts have the right to cause nominate another Eligible Person to fill the resulting vacancy resulting thereby on the Board, subject to the Director Threshold continuing to be met, in which case Parent shall cause such resulting vacancy be filled with the Eligible Person nominated by a designee the Principal Members in accordance with this Section 6.9. From such time as the Director Threshold is no longer met, the Principal Members shall, and shall cause their Affiliates to, upon the Company’s request, be required to take such action as is necessary to promptly remove such Eligible Person from the Board, whereupon the size of the Fund (or at the Fund's written election, by an Additional Investor)Board shall automatically be reduced accordingly.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing From and after the Closing, until such time as the Purchaser Parties collectively no longer Beneficially Own a number of members As-Converted Common Shares equal to (i) at least 25% of the Board of Directors outstanding As-Converted Common Shares (adjusted for subdivisions, stock-splits, combinations, recapitalizations or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualificationssimilar events), the Board of Directors reasonably determines in good faith that either Purchaser shall be entitled to designate three (3) individuals, who shall be Partners, Managing Directors, Advisors or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One Principals of the persons designated by the Purchaser, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC or an Affiliated Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Company Board of Directors. Such designees shall serve until (the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a“Purchaser Designees” and each a “Purchaser Designee”), (iii) so long as the Fund holds 50at least 15% (but less than 25%) of the shares of Preferred Stock or outstanding As-Converted Common Stock issued or issuable upon conversion of the Preferred Shares (whether adjusted for subdivisions, stock-splits, combinations, recapitalizations or not the Preferred Shares have been converted) acquired by it under this Agreementsimilar events), the Fund Purchaser shall be entitled to designate two directors to the Company's Board of Directors (one of whom 2) Purchaser Designees and (iii) at the Fund's written election may be designated by an Additional Investorleast 5% (but less than 15%) or (ii) so long as the Fund holds 25% of the shares of outstanding As-Converted Common Stock issued or issuable upon conversion of the Preferred Shares (whether adjusted for subdivisions, stock-splits, combinations, recapitalizations or not such shares have been converted) acquired by it under this Agreementsimilar events), the Fund Purchaser shall be entitled to designate one director (1) Purchaser Designee. At such time that the Purchaser is no longer entitled to designate one or more of its Purchaser Designees pursuant to the previous sentence, the Purchaser shall promptly cause such number of Purchaser Designees which it no longer is entitled to designate to offer to resign from the Company Board. The Purchaser Designees shall initially be those persons named on Schedule 4.11 to this Agreement. A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Agreement so long as he or she shall serve as a director on the Company Board pursuant to the terms of this Section 4.11(a). The Company's ’s obligations to have any Purchaser Designee appointed to the Company Board of Directors, and, in either case, or nominate any Purchaser Designee for election as a director at relevant future annual meetings of the stockholders any meeting of the Company’s shareholders pursuant to this Section 4.11, as applicable, shall in each case be subject to such Purchaser Designee’s satisfaction of all requirements regarding service as a successor to replace any such director upon expiration of his or her termthe Company under applicable Law and stock exchange rules regarding service as a director of the Company. The Purchaser Parties will cause each Purchaser Designee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations and provide such information as the Company shall cause such designees Board may reasonably request to determine the Purchaser Designee’s eligibility and qualification to serve as a director of the Company Board. (unlessb) From and after the Closing, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts take such actions as are necessary to cause the election Purchaser Designees to be nominated as members of such designees, including voting all shares for which the Company holds proxies (unless otherwise directed Board and shall, subject to applicable Law and the exercise of the fiduciary duties of the Company Board, include in any proxy statement prepared, used, delivered or publicly filed by the stockholder submitting such proxy) or is otherwise entitled Company to vote, solicit the vote of its shareholders in connection with any meeting of Company shareholders the recommendation of the Company Board that shareholders of the Company vote in favor of the Purchaser Designees and solicit votes in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant Purchaser Designees to Section 8.10(a), or if the Fund is entitled to designate a director or directors to Company Board consistent with the Company's Board of Directors by virtue ’s efforts to solicit votes in favor of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors election of the Company, and ’s other nominees to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofCompany Board. (c) In The Company, the Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms, which shall (i) provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Company Board to representatives of the Purchaser and its Affiliates and (ii) contain customary acknowledgements with respect to Purchaser’s and each Purchaser Designee’s potential receipt of material non-public information and awareness of applicable securities laws. (d) For so long as a CD&R Person or Purchaser Designee is serving on the Company Board, (i) the Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and preclearance or notification to the Company of any trades in the Company’s securities) or similar guideline or policy with respect to the trading of securities of the Company that applies to any Purchaser Party (including a policy that limits, prohibits or restricts any Purchaser Party from entering into any hedging or derivative arrangements), in each case other than with respect to any CD&R Person or Purchaser Designee solely in his or her individual capacity, except as provided herein, (ii) any share ownership requirement for any Purchaser Designee serving on the Company Board will be deemed satisfied by the securities owned by any Purchaser Party and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on any Purchaser Party’s transfers of securities pursuant to the Registration Rights Agreement or otherwise, subject to compliance with applicable securities Laws, (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Company Board be violated by any Purchaser Designee receiving compensation from any Purchaser Party and (iv) no Purchaser Designee shall be excluded or required to recuse himself or herself from any meetings or materials of the Company Board as a result of or in connection with his or her affiliation with the CD&R Group or the CD&R Group’s ownership of any Preferred Shares or Common Shares except in connection with a transaction with, or dispute involving, the Purchaser or any other member of the CD&R Group, and, in each case of the foregoing clauses (i), (ii), (iii) and (iv), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.11 shall not apply to the extent inconsistent with this Section 4.11 (but shall otherwise be applicable to the Purchaser Designee). (e) To the fullest extent permitted by the New York Business Corporation Law and subject to any express agreement that may from time to time be in effect, including the confidentiality provisions set forth in this Agreement, to the extent in compliance with applicable Law, the Company agrees that any Purchaser Designee, CD&R Person, CD&R Group and any CD&R Affiliate or any portfolio company thereof (collectively, “Covered Persons”) may, and none of the foregoing shall have any duty not to, (i) invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, shareholder, equityholder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its Subsidiaries, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the New York Business Corporation Law, to the extent in compliance with applicable Law, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person. Except as set forth below, the Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or its Subsidiaries, the Covered Person shall not have any designee duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by the New York Business Corporation Law, the Company hereby renounces any interest or expectancy in any potential transaction or matter of which the Fund (Covered Person acquires knowledge and waives any claim against each Covered Person that such Covered Person is liable to the Company or at the Fund's written election, by an Additional Investor) shall cease to serve as a director its shareholders for breach of any reason, other than fiduciary duty solely by reason of the Fund fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not communicate information regarding such corporate opportunity to the Company, in each case, except for any corporate opportunity which is expressly offered to a Covered Person in his or her capacity as a member of the Company Board, it being entitled understood that any such corporate opportunity shall belong to the Company. (f) Notwithstanding the foregoing, at any time, the Purchaser may, by written notice thereof, irrevocably relinquish the rights to designate a designee as provided in Section 8.10(a) or 8.10(b)Purchaser Designees and upon delivery of such notice, the Company Purchaser Parties shall use its reasonable best efforts cease to cause the vacancy resulting thereby have any right to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)designate any Purchaser Designees.

Board Representation. Purchaser and the Company agree as follows: 6.1 Following receipt by the Company of the Purchase Price and continuing until the later of (ai) The the date that the Convertible Notes have been paid in full or (ii) if 100% of the principal amount of the Convertible Notes have been converted into Common Stock and/or other equity securities of Purchaser, the date Purchaser no longer owns at least eighty percent (80%) of the shares of Common Stock and/or other securities acquired by Purchaser upon conversion thereof (the “Representation Period”), Purchaser shall be entitled, at its option, to the board representation rights set forth in in this Section 6. 6.2 Immediately following receipt by the Company shall promptly cause two vacancies to be created on its of the Purchase Price, the Company’s Board of Directors (by increasing the number of members “Board”) shall take all action necessary to expand the size of the Board of Directors or otherwiseby one (1) member and at the Initial Closing shall cause two persons appoint one person designated by the Fund (unless, after customary investigation of such persons' qualifications, Purchaser who is reasonably acceptable to the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One serve as a director of the persons designated by the Fund mayCompany, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees who shall serve as a director until the next succeeding annual meeting of stockholders of the Company where directors are to be held after such electionelected and until his respective successor is duly elected and qualified. (b) Commencing with such next succeeding annual 6.3 During the Representation Period, at each meeting of stockholders of the Company referred where directors are to be elected, the Board shall include in Section 8.10(a)its slate of nominees to be submitted to stockholders for election, (i) so long one person designated by Purchaser who is reasonably acceptable to the Board to serve as the Fund holds 50% a director of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired Company. Each director designated by it under this Agreement, the Fund shall be entitled Purchaser to designate two directors to serve on the Company's ’s Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long is referred to herein as the Fund holds 25% “Purchaser Designee”. 6.4 Notwithstanding Sections 6.1, 6.2 or 6.3 to the contrary, if at any time after the date hereof the Convertible Notes have been paid in full or, if the Convertible Notes have been converted into Common Stock or other equity securities of the Company, Purchaser ceases to own at least eighty percent (80%) of the shares of Common Stock issued or issuable and/or other securities acquired by Purchaser upon conversion thereof, Purchaser shall cause the Purchaser Designee then serving on the Board to promptly tender his or her resignation from the Board and any committee of the Preferred Shares (whether Board on which he or not she then sits. In furtherance of this Section 6.4, each Purchaser Designee shall, as a condition to his or her appointment or election to the Board, execute and deliver to the Company an irrevocable resignation as director in the form attached hereto as Exhibit D. 6.5 Each Purchaser Designee shall at all times while such shares have been converted) acquired Purchaser Designee is a director of the Company comply with the provisions of this Agreement and all policies and guidelines of the Board and its committees, and of the Company to the extent applicable to Board members, including the Company’s code of ethical conduct, corporate governance guidelines and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy. Each Purchaser Designee shall, if requested by it the Company and as a condition to being appointed or nominated for election to the Board, acknowledge that his obligations under this AgreementAgreement and such policies and guidelines are in addition to the fiduciary, statutory and common law duties of a director of a Delaware corporation and the Fund NASDAQ rules. 6.6 Each Purchase Designee shall, at the time of election or appointment to the Board, meet the qualification requirements to serve as a director under the Delaware General Corporation Law, applicable United States securities laws and the rules of NASDAQ or any other stock exchange on which the Common Stock is then listed. 6.7 During the Representation Period, if a Purchaser Designee resigns from the Board or is rendered unable to serve on the Board by reason of death, disability or disqualification, Purchaser shall be entitled to designate one director a replacement for such Purchaser Designee reasonably acceptable to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directorsBoard, and the Company shall use its reasonable best efforts take all necessary action to cause implement the election of foregoing as promptly as practicable. Any such designeesdesignated replacement who becomes a Board member shall be deemed to be a Purchaser Designee for all purposes under this Agreement and, including voting all shares for which prior to his or her appointment to the Board, shall be required to execute and deliver to the Company holds proxies (unless otherwise directed by an irrevocable resignation as director in the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve form attached hereto as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).Exhibit D.

Board Representation. (a) The Effective on the day after the Note Closing Date, the Company shall promptly cause two vacancies to be created on its Board of Directors increase by one (by increasing 1) the number of members of the Board of Directors or otherwise) of the Company and at the Initial Closing shall cause two persons elect and appoint a representative of Purchaser designated by Purchaser and reasonably acceptable to the Fund Company (unlessthe "PURCHASER REPRESENTATIVE") to such newly created directorship. The Company and Purchaser agree that ▇▇▇▇▇▇▇ will be the initial Purchaser Representative. From and after the election of Purchaser Representative as a Director of the Company, after customary investigation and for as long as Purchaser Representative shall remain a Director of such persons' qualificationsthe Company pursuant to this Section 5.3, Purchaser Representative shall be entitled to serve as a member of any executive committee of the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. and any other committee or body performing the functions of an executive committee (b) Commencing with such next succeeding annual meeting the "EXECUTIVE COMMITTEE"). As long as Purchaser beneficially owns not less than 850,000 shares of stockholders of Common Stock (as adjusted for the Company referred to events described in Section 8.10(a1.3 in a manner consistent therewith), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of Company shall nominate and recommend the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders Purchaser Representative for election as a Director of the Company, a successor to replace any such director upon expiration of his or her term. The Company and shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 otherwise use its reasonable best efforts to cause the election of such designees, including voting all shares for which Purchaser Representative as a Director of the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor at each meeting of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of shareholders at which the first sentence of this Section 8.10(bPurchaser Representative's term as a Director would otherwise expire, and (ii) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund Purchaser shall be entitled to designate one individual who shall receive notice of all meetings of the Board of Directors and the Executive Committee of the Company and who shall be entitled to attend and participate in all such meetings as an observer on behalf of Purchaser (the "OBSERVER"). Subject to Section 5.3(b), each Purchaser Representative shall be treated equally with the other Directors and the other members of the Executive Committee in their capacities as such and shall be entitled to the same information (including reports, financial statements, notices and materials distributed other information) at the same time (subject to the same general conflicts-of-interest rules applicable to all other members of the Board of Directors and Executive Committee of the Company, reasonably and consistently applied) and the same compensation and benefits, as shall be provided to other Directors of the Company and other members of the Executive Committee, and copies of all such information shall be provided or made available to the Observer at the same time such information is provided or made available to Purchaser and other Directors or Executive Committee members. (b) Notwithstanding any other provisions of this Agreement, the rights of the Purchaser Representative to serve as a Director and as a member of the Executive Committee, and the rights of the Observer to attend and participate in meetings of the Board of Directors and the Executive Committee, pursuant to Section 5.3(a) shall terminate upon the earlier of: (i) the Company's sale of all or substantially all of its assets, (ii) a merger, consolidation, share exchange, or other reorganization or business combination involving the Company in which shareholders of the Company immediately prior to such merger, consolidation, share exchange or other reorganization or business combination own less than fifty percent (50%) of the voting capital stock of the surviving or acquiring corporation or the resulting entity, or (iii) such time as Purchaser no longer owns 850,000 shares of Common Stock (as adjusted for the events described in Section 1.3 in a manner consistent therewith). At any time Purchaser is no longer entitled to Board representation pursuant to this Section 5.3, then at the request of the Company, the Purchaser Representative shall immediately resign and the Observer shall immediately cease attending any meetings of the Board of Directors and the Executive Committee. (c) In addition to any other indemnification and insurance rights the Purchaser Representative and the Observer may have, (i) each Purchaser Representative (A) shall have the same indemnification rights, as set forth in the Company's Restated Articles and Bylaws, as the other members of the Board of Directors of the Company, and the Company shall afford each Purchaser Representative an opportunity to designate one person who enter into an indemnification agreement substantially similar to the then effective indemnification agreement between the Company and the other members of the Board of Directors; and (B) shall be entitled covered by director and officer liability insurance to attend all meetings the same extent as other members of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund Company, and (or ii) to the maximum extent applicable, each Observer (A) shall have analogous rights to indemnification from the Company which are substantially similar in scope to those of the Purchaser Representative and (B) shall be covered at the FundCompany's written election, expense by an Additional Investor) shall cease liability insurance comparable in scope to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby insurance required to be filled by a designee of obtained for Purchaser Representative to the Fund (or extent such issuance is available on commercially reasonable terms at the Fund's written election, by an Additional Investor)commercially reasonable cost.

Board Representation. (a1) Subject to Section 2.2 hereof, at and following the Effective Date, each party to this agreement will take such action as may reasonably be in its power to cause the Board to include (i) six (6) Investor Group Designees, one (1) of whom, unless and until a ▇▇▇▇▇▇▇▇▇ Forfeiture Event has occurred, shall be the ▇▇▇▇▇▇▇▇▇ Designee, and (ii) five (5) Lender Group Designees. The Investor Group Designees (including the ▇▇▇▇▇▇▇▇▇ Designee) and the Lender Group Designees are sometimes collectively referred to herein as the "Designees" and individually as a "Designee." (1) The Investor Group Designator, the Lender Group Designator and the ▇▇▇▇▇▇▇▇▇ Designator shall each give the Company shall promptly cause two vacancies timely notice (the "Notice of Designee") of the name of each person whom the relevant Stockholder Group wishes to be created on its nominated by the Company for election or re-election to the Board at the next meeting of stockholders, or taking of action by written consent of stockholders, at which Directors are to be elected (by increasing an "Election Meeting"). At the option of any Stockholder Group Designator, the Notice of Designee may also specify one or more alternates (an "Alternate Designee") to serve in the event of the incapacity or other inability to serve of a Designee, as provided herein. The Investor Group Designees and the Lender Group Designees shall at all times include such number of members Independent Directors as shall be required to comply with the provisions of the Board of Directors or otherwiseSections 2.3(b) and at 2.3(c) hereof. Each Notice of Designee shall be in writing and shall be timely if delivered to the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders Secretary of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to at the Company's Board principal executive offices not later than the close of Directors (one of whom at business on the Fund's written election may be designated by an Additional Investor) or (ii) so long as 60th day prior to the Fund holds 25% first anniversary of the shares of Common Stock issued or issuable upon conversion preceding year's annual meeting; provided, however, that in the event that the date of the Preferred Shares (whether Election Meeting is more than 30 days before or not after such shares have been converted) acquired by it under this Agreementanniversary date, the Fund shall Notice of Designee to be entitled to designate one director timely must be so delivered not later than the later of (x) the close of business on the later of the 60th day prior to the Company's Board of Directors, and, in either case, at relevant future annual meetings Election Meeting and (y) the 20th day following the day on which public announcement of the stockholders date of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person Election Meeting is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended first made by the Board to Company. In no event shall the Company's stockholders public announcement of an adjournment of an Election Meeting commence a new time period for election the giving of the Notice of Designee as directors, and described above. If the Company shall use its reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated received a person pursuant to Section 8.10(a), or if Notice of Designee from any Stockholder Group Designator at a time when the Fund relevant Stockholder Group is entitled to designate a director name one or directors more Designee on or before the 10th day before the latest date for delivery of the Notice of Designee specified in the proviso to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b)next preceding sentence, the Company shall use its reasonable best efforts so inform the relevant Stockholder Group Designator by written notice. If the Company has not received a Notice of Designee from any Stockholder Group Designator at a time when the relevant Stockholder Group is entitled to cause name one or more Designee on or before the vacancy resulting thereby latest date for delivery of such Notice, then such Stockholder Group Designator shall be deemed to be filled by have delivered on such date a designee Notice of Designee designating the Fund (or at Designees specified in the Fund's written electionmost recently delivered Notice of Designee for any prior Election Meeting, by or, if any such Designee is unable to serve and an Additional Investor)Alternate Designee has been specified therefor, such Alternate Designee.

Board Representation. (a) The Company shall promptly take all requisite action such that on the Closing Date hereof, the size of the Board shall be set at seven (7) members and two (2) individuals designated by the Purchasers (each director designated by the Purchasers under this Agreement, a “TMP Purchaser Designee”, and collectively, the “TMP Purchaser Designees”) as Board nominees shall be appointed to the Board, and on the Closing Date, the Resigning Directors shall resign; provided, however, the Purchasers shall be permitted, in their discretion, to defer appointment of one or more of the TMP Purchaser Designees to one or more subsequent dates. The rights of the Purchasers under this Section 5.13 shall be exercised by a majority in interest of the Purchasers. (i) From and after the date hereof, the Company shall cause two vacancies (2) TMP Purchaser Designees to be created nominated by the Company to serve on its the Board of Directors (by increasing and the total number of members of the Board shall be seven (7) or fewer to the extent certain of Directors the TMP Purchaser Designees have not been appointed to the Board (as permitted above). Any TMP Purchaser Designees shall be appointed to the Board on the Closing Date or otherwiseto the extent designated following the Closing Date, shall be appointed to the Board promptly following notice from the Purchasers and in any event, within one (1) Business Day. From and at after the Initial Closing date hereof, the Company shall cause two persons designated not change the size of the Board without the prior written consent of the Purchasers; provided that, unless waived by the Fund (unlessPurchasers, after customary investigation in the event the size of such persons' qualificationsthe Board is changed, the Purchasers shall have the right to designate that number of TMP Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less than as set forth in the previous sentence. For so long as such membership does not conflict with any applicable law or regulation or listing requirement of Directors reasonably determines any Approved Market on which the Common Stock is listed for trading (as determined in good faith by the Board), the TMP Purchaser Designees shall be entitled to serve as a member of, or observer to (provided that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One a majority of the persons designated by Board or Board committee shall have the Fund mayauthority to dismiss any such observer from any meeting), at the Fund's written TMP Purchaser Designee’s election, be designated by an Additional Investoreach of the committees of the Board, but except for any committee formed to consider a transaction between the Company and a member of the Purchaser Group. The Company acknowledges that one TMP Purchaser Designee intends to hold a position on each Board committee and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of one TMP Purchaser Designee to each such committee (subject to the limitations in no case the immediately preceding sentence). The Purchasers’ rights set forth in this Section 5.13(b) shall the Holders of Preferred Stock collectively designate more than two persons to serve terminate on the Board of Directors. Such designees shall serve until first date on which the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50Purchasers collectively do not own at least 75% of the shares of Series A Preferred Stock or Common and Series A Exchangeable Preferred Stock actually issued or issuable upon to, and purchased by, the Purchasers hereunder (including Series A Conversion Shares issued on conversion of the Series A Preferred Shares (Stock and the Series A Exchangeable Preferred Stock and any other securities of the Company or any successor thereto into which such shares are converted or exchanged) and the Purchasers shall promptly cooperate with the Company to determine whether or not such threshold has been met. Notwithstanding the Preferred Shares have been converted) acquired by it under this Agreementforegoing, the Fund rights of the Purchasers to nominate the TMP Purchaser Designees shall at no time be in excess of the level considered proportionate for purposes of the applicable Approved Market listing rules (in the case of Nasdaq, currently Rule 5640). As an example, if the Purchasers’ ownership is below the level set by Nasdaq required for having rights to nominate 2 out of 7 directors, but above the level set by Nasdaq required for having rights to nominate 1 out of 7 directors, the Purchasers shall be entitled to have 1 out of 7 directors nominated for election in accordance with this Section 5.13(b). (c) Solely with respect to those TMP Purchaser Designees that the Purchasers are entitled to designate two directors pursuant to the Company's Board of Directors Sections 5.13(a) and/or 5.13(b) (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so and solely as long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be Purchasers remain entitled to so designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. TMP Purchaser Designees): (i) The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause have such TMP Purchaser Designees elected as directors of the Company, including, without limitation, including such TMP Purchaser Designees in the Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for such designeesTMP Purchaser Designees to the same extent as it does for any of its nominees to the Board, and including voting all shares for which the Company holds proxies (unless otherwise directed by recommendation of the stockholder submitting such proxy) or is otherwise entitled to vote, Board in favor of the election of the TMP Purchaser Designees. In the event a TMP Purchaser Designee is not elected at a stockholders meeting at which such person. Notwithstanding designee is up for election, the foregoing, if the Fund has not designated a person pursuant Company shall cause such TMP Purchaser Designee to Section 8.10(a), or if the Fund is entitled to designate a director or directors be appointed to the Company's Board Board. (ii) Any vacancy in the position of Directors a TMP Purchaser Designee shall only be filled with another TMP Purchaser Designee. Any vacancy created by virtue any removal of a TMP Purchaser Designee or an election of the first sentence Purchasers to defer appointing one or more TMP Purchaser Designees shall also only be filled with another TMP Purchaser Designee. The Company shall not take any action to remove any TMP Purchaser Designee or fill a vacancy reserved for a TMP Purchaser Designee without the consent of this Section 8.10(b) and the Fund does not designate at least one director Purchasers. Any replacement TMP Purchaser Designees shall be appointed to the Company's Board of Directorspromptly following notice from the Purchasers and in any event, the Fund within two (2) Business Days. (iii) Each TMP Purchaser Designee shall be entitled given notice of (in the same manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such TMP Purchaser Designee serves. Each TMP Purchaser Designee shall receive a copy of all notices notices, agendas and other materials distributed to the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such TMP Purchaser Designee will be in attendance at the meeting. (d) In addition to any other indemnification rights the TMP Purchaser Designees have pursuant to this Agreement, the Certificate of Incorporation and the Bylaws, each such TMP Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an Indemnification Agreement and a side letter contemplated by Section 6.1(j). The Company shall maintain director and officer insurance covering the TMP Purchaser Designees on the same terms and with the same amount of coverage as is provided to other members of the Board of Directors of Board. The Company shall reimburse the Company, and to designate one reasonable expenses incurred by the TMP Purchaser Designees in connection with attending (whether in person who shall be entitled to attend or telephonically) all meetings of the Board of Directors and or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The TMP Purchaser Designees shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, restricted stock and other equity awards, as is provided to receive minutes of all such meetings upon preparation thereofother non-employee directors. (ce) In The Company and the event any designee Purchasers shall take or cause to be taken all lawful action necessary to ensure at all times as of and following the Closing Date that the Organizational Documents of the Fund (Company are not inconsistent with the provisions of this Agreement and the Transaction Documents or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) transactions contemplated hereby or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)thereby.

Board Representation. (a) The Effective as of immediately following the closing of the Transaction, the Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing will increase the number of members size of the Board of Directors or otherwise) by one director, and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund Investors shall be entitled to designate one director individual to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor for appointment to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to serve as a Class II director (such designee, the “Investor Designee”). Upon such designation, the Nominating and Corporate Governance Committee (the “NCGC”) shall recommend the appointment of the Investor Designee and the Board shall appoint the Investor Designee to fill the vacancy on the Board. Thereafter, neither the NCGC nor the Board shall withhold its recommendation for the re-election of the Investor Designee to the Board. Following the expiration of the Investor Designee’s initial term, until the first day on which the Investors (together with their Affiliates) cease to Beneficially Own at least ten percent (10%) of the then issued and outstanding Common Stock, including the Conversion Shares and the Warrant Shares (the “Board Representation Rights Termination Event”), the Company will be required to (i) include the Investor Designee in the Company's ’s slate of director nominees and recommend to its stockholders for election that the Company’s stockholders vote in favor of the electing the Investor Designee to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Investor Designee elected as directors, a director of the Company and the Company shall use solicit proxies for each such person to the same extent as it does for any of its reasonable best efforts other nominees to the Board. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of any director who is designated by the Investors in accordance with this Section 4.1(a), the Company agrees to take at any time and from time to time all actions necessary to cause the election vacancy created thereby to be filled as promptly as practicable by a new designee of such designees, including voting all shares for which the Investors. (b) The Investor Designee shall not be entitled to any cash or equity compensation from the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) in connection with his or is otherwise entitled to vote, in favor her service as a director of the election of such person. Notwithstanding Company; provided, that the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund Investor Designee shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Investor Designee shall be entitled to reimbursement for reasonable out-of-pocket expenses incurred in connection with the performance of his or her services as a director of the Company to the same extent as the other members of the Board. The Company shall notify the Investor Designee of all notices regular and special meetings of the Board. The Company shall provide the Investor Designee with copies of all notices, minutes, consents and other materials distributed provided to all other members of the Board concurrently as such materials are provided to the other members. (c) Following the Board Representation Rights Termination Event, the Investors will have no further rights under this Section 4.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 4.1(f)(iv) shall become operative and the Investor Designee shall be deemed to have resigned from the Board. (d) The Investor Designee shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Investor agrees that the Board may recuse the Investor Designee by majority vote of the members of the Board (but excluding such Investor Designee) from the portion of Directors any Board meeting at which the Board is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement, the Purchase Agreement, the Certificate of Designations, the Warrant Agreement or the Note, (ii) any transaction proposed by, or with, the Investors or their Affiliates or Representatives or (iii) any acquisition of, or equity or debt investment in, a third party by the Company, and any disposition or other transaction (excluding an acquisition) involving a counterparty affiliated with, or of which the Investors or any of their Affiliates otherwise have a material interest, as determined by the Board (but excluding such Investor Designee) in its reasonable judgment; provided, that the Investors will cause the Investor Designee to designate one person who promptly disclose to the Board any actual or potential material conflict of interest, and the Board shall determine in its reasonable judgment whether to recuse the Investor Designee. The Board may withhold from the Investor Designee any material distributed to the directors to the extent directly relating to the subject of any such recusal. (e) The Investor Designee shall be entitled permitted to attend disclose to the Investors and the Investors’ Affiliates and Representatives on a need to know basis the information disclosed to the Investor Designee as a member of the Board; provided, that such ability to disclose information shall in all meetings circumstances be subject to a restriction on sharing and using information subject to confidentiality by the Company with third parties if the Company has identified to the Investor Designee or the Board that such information is confidential and the disclosure thereof by the Investor Designee would cause a breach of such confidentiality obligation and any such Representative shall, enter into a customary and reasonable mutually acceptable confidentiality agreement with the Company. Each Investor agrees to be liable to the Company for any breach of confidentiality or use of information by its Affiliates and Representatives. (f) The Company’s obligations to have any Investor Designee appointed to the Board or nominate and recommend any Investor Designee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4.1, shall be subject to such Investor Designee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company; provided, that in no event shall such Investor Designee’s relationship with the Investors or their Affiliates (or any other actual or potential lack of independence resulting therefrom) nor the ownership by the Investors of any shares of Preferred Stock or shares of Common Stock issuable upon conversion thereof, in and of itself, be considered to disqualify such Investor Designee from being a member of the Board of Directors and committees thereof pursuant to this Section 4.1. The Investors will cause any Investor Designee to make himself or herself reasonably available for interviews and to receive minutes of all consent to such meetings upon preparation thereof. (c) In reference and background checks or other investigations as the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease Board may reasonably request to determine such Investor Designee’s eligibility and qualification to serve as a director for any reason, other than by reason of the Fund not being entitled Company. No Investor Designee shall be eligible to designate serve as a designee director of the Company if he or she has been involved in any of the events enumerated under Item 2(d) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any outstanding order, judgment, injunction, ruling, writ or decree of any Governmental Entity prohibiting service as provided in a director of any public company. As a condition to the appointment of the Investor Designee or nomination for election as a director of the Company pursuant to this Section 8.10(a) or 8.10(b)4.1, the Investor Designee shall provide to the Company: (i) all information reasonably requested by the Company shall use its reasonable best efforts to cause the vacancy resulting thereby that is required to be filled or is customarily disclosed for directors, candidates for directors and their respective Affiliates and Representatives in a proxy statement or other filings in accordance with applicable law or any stock exchange rules or listing standards; (ii) all information reasonably requested by a designee the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; (iii) an undertaking in writing by the Investor Designee, to the extent the same is made by the other members of the Fund Board: (1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and (2) to provide such additional information reasonably necessary to comply with future legal or at regulatory obligations of the Fund's written electionCompany; and (iv) an irrevocable advance resignation letter pursuant to which the Investor Designee shall resign from the Board as set forth in this Agreement. (g) Investor agrees that it shall, and it shall cause and direct its Controlled Affiliates to, vote (including, if applicable, by delivering one or more proxies or through the execution of one or more written consents if stockholders of the Company are requested to vote through the execution of an Additional Investor)action by written consent in lieu of any annual or special meeting of stockholders of the Company) any Voting Securities owned by them or over which they have voting control to be present for quorum purposes, in favor of all those persons nominated to serve as directors of the Company by the NCGC of the Board and against any nominee not so nominated.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) Each Stockholder agrees that it shall vote, or execute a written consent in lieu thereof with respect to all of the Securities beneficially owned or held of record by it or cause all of the Securities beneficially owned by it to be voted, or cause a written consent in lieu thereof to be executed, to elect a Board to be composed as follows: (A) Subject to Section 2.1(b)(ii), for so long as a Founder Group meets the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this AgreementFounder Group Minimum Ownership Condition, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund Founder Group shall be entitled to designate one (1) director (each, a “Founder Designee”); provided that if (x) neither Founder Group meets the Founder Group Minimum Ownership Condition individually, but collectively, both Founder Groups Beneficially Own, in the aggregate, a number of Securities representing an Ownership Percentage of at least 5% and (y) neither Founder Group has made any Transfer other than Transfers to the Company's Board of Directors, and, in either case, at relevant future annual meetings Permitted Group of the stockholders of Founder who is associated with such Founder Group then the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees Founder Groups (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nomineescollectively) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed designate one (1) director (a “Joint Founder Designee”), provided, further, that, if one Founder Group has made any Transfer other than Transfers to the members Permitted Group of the Board of Directors Founder who is associated with such Founder Group but the other Founder Group has not, and the condition in clause (x) of the Companypreceding proviso has been met, then the condition in clause (y) of the preceding proviso will be deemed to have been met and the Founder whose Founder Group has not made any Transfer other than Transfers to designate one person who the Permitted Group of such Founder shall be entitled to attend all meetings designate such Joint Founder Designee; and (B) The Sponsor shall have the right, but not the obligation, to designate, and the individuals nominated for election as directors by or at the direction of the Board or a duly authorized committee of the Board shall include, a number of individuals such that, upon the election of each such individual, and each other individual nominated by or at the direction of the Board or a duly authorized committee of the Board, as a director of the Company and taking into account any director continuing to serve without the need for re-election, the number of Blackstone Designees (as defined below) serving as directors of the Company will be equal to: (i) if the Sponsor and its affiliates collectively Beneficially Own 50% or more of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 50% of the Total Number of Directors; (ii) if the Sponsor and its Affiliates collectively Beneficially Own at least 40% (but less than 50%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 40% of the Total Number of Directors; (iii) if the Sponsor and its Affiliates collectively Beneficially Own at least 30% (but less than 40%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 30% of the Total Number of Directors; (iv) if the Sponsor and its Affiliates collectively Beneficially Own at least 20% (but less than 30%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 20% of the Total Number of Directors; and (v) if the Sponsor and its Affiliates collectively Beneficially Own at least 5% (but less than 20%) of the Common Stock as of the record date for such meeting, the lowest whole number (such number always being equal to or greater than one) that is greater than 10% of the Total Number of Directors (in each case, each such person a “Blackstone Designee”). (each director so designated by a Founder Group or Sponsor, a “Designee”); provided that if a Founder Group is entitled to only one Designee, such Designee shall be the applicable Founder of such Founder Group unless such Founder cannot serve on the Board due to death or disability; provided, further, that in the event a Founder Group is entitled to one Designee but the applicable Founder of such Founder Group cannot serve on the Board due to death or disability, such Designee shall be chosen by the other Founder, which individual must have relevant industry experience and committees thereof such surviving Founder shall consult with the Blackstone Designees prior to choosing such Designee; provided, further, in the event both Founder Groups are entitled to each designate one Designee but both Founders are unable to serve on the Board due to death or disability, each such Designee shall be chosen by their respective Founder Groups, which individual must have industry experience and be reasonably acceptable to receive minutes of all the Blackstone Designees (such meetings upon preparation thereofapproval shall not be unreasonably withheld, conditioned or delayed). (cii) Subject to Section 2.1(b)(i)(A), if at any time a Founder Group fails to meet the Founder Group Minimum Ownership Condition, then such Founder Group’s right to designate, nominate and replace any member of the Board (other than a Joint Founder Designee, if applicable) shall terminate and reduce to zero (0) directors, and such Founder Group agrees to promptly thereafter cause its Designee director to tender his or her immediate resignation from the Board. (iii) In the event that a vacancy is created on the Board at any designee time by the death, disability, retirement, resignation or removal of any Designee director, only the Fund Founder Group or Stockholder that designated such deceased, disabled, retired, resigning or removed Designee may designate another individual (or at the Fund's written election, by an Additional Investor“Replacement Nominee”) shall cease to fill such vacancy and serve as a director for any reasonon the Board and each Stockholder agrees that it shall vote, other than by reason or execute a written consent in lieu thereof with respect to all of the Fund not being entitled to designate a designee as provided in Section 8.10(a) Securities beneficially owned or 8.10(b), held of record by it or cause all of the Company shall use its reasonable best efforts to cause the vacancy resulting thereby Securities beneficially owned by it to be filled by voted, or cause a designee written consent in lieu thereof to be executed to elect such Replacement Nominee to the Board. (iv) Directors are subject to removal pursuant to the applicable provisions of the Fund Certificate of Incorporation of the Company; provided, however, for as long as this Agreement remains in effect, (or at x) the Fund's written electionBlackstone Designees may only be removed with the consent of the Sponsor, by an Additional Investor)(y) each Founder Designee may only be removed with the consent of the applicable Founder Group that designated such Founder Designee and (z) the Joint Founder Designee may only be removed with the consent of both Founder Groups, in each case delivered in accordance with Section 7.13 hereof.

Board Representation. (a) The Company Board shall promptly cause two vacancies consist of up to nine members. The Purchaser shall be created on its Board of Directors (by increasing the number of members of entitled to designate nominees for election or appointment to the Board of Directors or otherwise(the “Purchaser Representatives”) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election.as follows: (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund Purchaser holds 50% at least 90,000 Convertible Preferred Shares (or the corresponding number of the shares of Preferred Stock or Common Stock Restricted Voting Shares issued or issuable upon conversion of the Convertible Preferred Shares (whether or not the Preferred Shares have been converted) acquired by Shares), it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or three Purchaser Representatives; (ii) so long as the Fund Purchaser holds 25% at least 45,000 Convertible Preferred Shares (or the corresponding number of the shares of Common Stock Restricted Voting Shares issued or issuable upon conversion of the Convertible Preferred Shares), it shall be entitled to designate two Purchaser Representatives; and (iii) so long as the Purchaser holds at least 22,500 Convertible Preferred Shares (whether or not such shares have been converted) acquired by the corresponding number of the Restricted Voting Shares issued upon conversion of the Convertible Preferred Shares), it under this Agreement, the Fund shall be entitled to designate one director Purchaser Representative. The parties hereto acknowledge and agree that the Purchaser is entitled to appoint certain designees to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the ’s Board of Directors reasonably determines in good faith pursuant to the terms of the Special Voting Preferred Shares and that such person this provision is not qualified or acceptable under standards applied fairly and equally to all nominees) intended to be included in furtherance of such rights. In no event will this Section 2.1 be construed to duplicate the slate of nominees recommended by the Board rights granted to the Company's stockholders for election as directors, Purchaser pursuant to the terms of the Special Voting Preferred Shares. The Purchaser shall not Transfer any of the Special Voting Preferred Shares. In the event that the Purchaser no longer holds any Special Voting Preferred Shares and the Company shall use its reasonable best efforts to cause the election of such designees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise therefore not entitled to vote, in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or elect directors to the Company's ’s Board of Directors by virtue of pursuant to the first sentence of terms thereof; this Section 8.10(b2.1 shall be controlling. (b) and The Company acknowledges that the Fund does not designate at least one director to the Company's Board of Directors, the Fund Purchaser shall be entitled to receive all notices and materials distributed appoint three Purchaser Representatives to the members Board pursuant to the terms governing the Special Voting Shares upon issuance of the Board of Directors of Special Voting Shares to the Purchaser by the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) The Purchaser acknowledges that it shall appoint the Purchaser Representative(s) to the Board in accordance with the terms governing the Special Voting Preferred Shares directly following the issuance of the Special Voting Preferred Shares to the Purchaser by the Company and following each future meeting of the holders of the Restricted Voting Shares where directors of the Company have been elected by holders of the Restricted Voting Shares at such meeting. Any appointees by the Purchaser shall be subject to such appointee being acceptable to the Company’s corporate governance and nominating committee, acting reasonably. (d) In the event that any designee of the Fund (or at the Fund's written election, by an Additional Investor) Purchaser Representative shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled Company, whether due to designate a designee as provided in Section 8.10(a) such Purchaser Representative’s death, disability, resignation or 8.10(b)removal, the Company shall use its reasonable best efforts to cause the Board to appoint a replacement Purchaser Representative designated by the Purchaser to fill the vacancy resulting thereby created by such death, disability, resignation or removal. (e) The Purchaser shall promptly notify the Company in writing if ceases to be filled by a designee hold at least 90,000, 45,000 or 22,500, as the case may be, Convertible Preferred Shares (or the corresponding number of the Fund (or Restricted Voting Shares issued upon conversion of the Convertible Preferred Shares). In addition, the Purchaser shall deliver a certificate to the Company, from time-to-time as the Company shall reasonably request, certifying the number of securities of the Company beneficially owned by the Purchaser as at the Fund's written election, by an Additional Investor)date of such certificate.

Board Representation. For so long as M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ is a holder of a Note issued hereunder (athe “Representation Period”), the Nominating and Corporate Governance Committee (the “Nominating Committee”) The Company of the Company’s Board shall promptly cause two vacancies nominate a Designated Nominee (as defined below) for election to the Board at each meeting of the Company’s stockholders held during the Representation Period at which directors are to be created on its Board of Directors (by increasing elected, commencing with the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding Company’s annual meeting of stockholders currently scheduled to be held in June 2013 (the “2013 Annual Meeting”), and the Board shall recommend to the stockholders that such Designated Nominee be so elected at such meeting (collectively, the “Nomination Obligations”). The Board shall take all such actions necessary during the Representation Period to ensure that the size of the Board is large enough to accommodate the Designated Nominee’s election to the Board as a director of the Company. The Nomination Obligations are subject to the following conditions: (i) the Designated Nominee’s satisfaction of all legal and governance requirements regarding the Designated Nominee’s service as a director of the Company to be held after such election. and (bii) Commencing with such next succeeding annual meeting of stockholders the fiduciary duties imposed on the directors of the Company referred by the Nomination Obligations. “Designated Nominee” means a person designated by M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (x) who is able to in Section 8.10(a)satisfy all such legal and governance requirements and (y) the nomination and recommendation of whom would not cause the Nominating Committee or the Board, respectively, to breach such fiduciary duty (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreementcollectively, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person“Director Qualifications”). Notwithstanding the foregoing, if (1) the Fund has not designated timing of the Closing at which M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ first purchases a person Note makes it impracticable for the Company to prepare and file with the SEC, on or before April 30, 2013, a definitive proxy statement containing the information regarding the Designated Nominee that is required to be disclosed therein pursuant to Section 8.10(a)the SEC’s Schedule 14A or (2) the Designated Nominee fails to timely provide the Company with all information needed to prepare and file such definitive proxy statement by April 30, or if 2013 that it may reasonably request from the Fund is entitled Designated Nominee, then, subject to designate a director or directors Director Nominee’s satisfaction of the Director Qualifications, (A) the Nominating Committee shall recommend for election, and the Board shall elect, the Designated Nominee to the Company's Board of Directors by virtue of as soon as is reasonably practicable following the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease 2013 Annual Meeting to serve as a director for any reason, other than by reason until the next annual meeting of stockholders at which directors are elected and until his or her successor is duly elected and qualifies and (B) the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company Nomination Obligations shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)commence with such next annual meeting.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members Effective as of the Board of Directors or otherwise) and at the Initial Investment Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualificationsDate, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund Purchaser shall be entitled to designate two directors to allowed one representative (the Company's Board “Perseus Observer”) of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreementits choice, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or another person reasonably acceptable to the Board, to attend all meetings of the Board of Directors and committees thereof and to receive minutes in a nonvoting capacity. In connection therewith, the Company shall provide the Perseus Observer with copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board. Notwithstanding the foregoing, the Purchaser shall not be entitled to exercise the Perseus Observer rights set forth herein at any time that a Perseus Director is then serving on the Board; provided, however, that the Company reserves the right to exclude such Perseus Observer from access to any material or meeting or portion thereof if the Company in good faith believes that such exclusion is necessary to preserve the attorney-client privilege or for other similar reasons. This right shall expire at such time that the Company has repaid the Senior Secured Note in full and the Perseus Ownership Percentage falls below 5%. (b) Effective as of the Subsequent Investment Closing, the Company shall take all actions within its control to provide the Purchaser with the representation on the Board contemplated by this Section 5.6, including without limitation appointing the Requisite Number of representatives identified by the Purchaser to the Board, granting one Perseus Director the rights contemplated by clause (ii) of this Section 5.6(b), and, unless the Board determines in good faith that doing so would be inconsistent with its fiduciary duties under applicable Law, nominating representatives identified by the Purchaser for election as directors of the Company at any meeting of the Company’s stockholders at which such directors will be elected, recommending their election to the Board, and soliciting and voting proxies in favor of their election. (i) The “Requisite Number” of Perseus Directors shall be the number of directors, rounded up to the next whole number, necessary for the Purchaser’s percentage representation on the Board to be at least equal to the percentage of the Company’s then outstanding Common Shares the Purchaser and its Affiliates hold assuming the conversion of the Senior Secured Convertible Note and the exercise of all Warrants (the “Perseus Ownership Percentage”). The Purchaser shall promptly notify the Company in writing when the Requisite Number of Perseus Directors increases or decreases following the Subsequent Investment Closing, along with information about its holdings reasonably sufficient for the Company to verify the Perseus Ownership Percentage, and the Requisite Number shall not be deemed to have changed until Perseus shall have given that notice. Notwithstanding this provision, the Requisite Number shall become zero at such time as the Perseus Ownership Percentage falls below 5%. In the event (i) the Requisite Number of Perseus Directors constitutes a majority of the members of the Board and (ii) it is necessary for one of such Perseus Directors to be “independent” within the definition of such term contained in Nasdaq Rule 4200(a)(15) (or any successor rule) for the Company to be in compliance with applicable Nasdaq Rules, Perseus shall select one Perseus Director who is “independent” under such rule. (ii) At least one Perseus Director shall have the right to attend and participate fully in a non-voting capacity in all meetings of each of the Board’s Nominating and Corporate Governance and Compensation Committees, or any equivalent committees, including receipt of all information provided to Committee members; provided, however, that the Company reserves the right to exclude such Perseus Director from access to any material or meeting or portion thereof if the Company in good faith believes, upon preparation thereofadvice of counsel, that such exclusion is necessary to preserve the attorney-client privilege or for other similar reasons. (iii) The Purchaser shall timely notify the Company in writing of any Person designated by it pursuant to this Section 5.6 to stand as a nominee for election to the Board, and shall promptly furnish all information necessary for all required filings with the SEC. In the absence of any notice from the Purchaser, the Perseus Directors then serving and previously designated by the Purchaser shall be renominated. (iv) Any vacancy on the Board created by the resignation, removal, incapacity or death of any Perseus Director shall be filled by another Perseus Director in accordance with the terms of this Section 5.6 and Article II, Section 8 of the Company’s Bylaws. (c) In Each Perseus Director shall be entitled to (i) the event any designee same compensation paid to other non-management directors of the Fund Company, (ii) reimbursement for reasonable out-of-pocket expenses (including but not limited to travel and lodging) incurred in connection with the performance of his or at the Fund's written election, by an Additional Investor) shall cease to serve her duties as a director for any reason, other than by reason (including attendance at meetings of the Fund not being Board or any committees), (iii) directors’ liability insurance and (iv) indemnification in accordance with the Company’s Certificate of Incorporation, Bylaws and policies established by the Board for all directors generally. The Perseus Observer shall be entitled to designate a designee as reimbursement for reasonable out-of-pocket expenses (including but not limited to travel and lodging) incurred in connection with attendance at meetings of the Board. The Company shall pay all compensation and reimbursement for expenses provided for under this Section 5.6(c) to Perseus, L.L.C. at the address listed in Section 8.10(a8.7 unless otherwise notified by the Purchaser. (d) or 8.10(b)The Company shall take all actions within its control so that, as of the Initial Investment Closing, the size of the Board is five After the Initial Investment Closing, the Company shall use its reasonable best efforts to cause not permit the vacancy resulting thereby size of the Board to be filled by a designee increased without the prior written consent of the Fund Purchaser. (e) The obligations of the Company under this Section 5.6 (other than under clause (c) of this Section 5.6) shall terminate at such time as the Purchaser and its Affiliates hold Common Shares or at other securities convertible into or exercisable for Common Shares that upon such conversion or exercise, in the Fund's written electionaggregate, by an Additional Investor)would represent less than 5% of the Company’s outstanding Common Shares on a fully-diluted basis.

Board Representation. (a) The In connection with the closing under the Securities Purchase Agreement and as required under the Existing Agreement, the Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing increased the number of members size of the Board by one member, and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (“▇▇▇▇▇▇▇”) was appointed to the Board as a member of Directors or otherwise) and the class whose initial term expires at the Initial Closing 2016 annual meeting of the Company’s stockholders. (b) The size of the Board shall initially be set at ten members. (c) Subject to Section 2(a), the Company shall continue to cause two persons ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇ is unavailable to continue to serve on the Board, such other person designated by ▇▇▇▇▇▇▇ and reasonably acceptable to the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nomineesCompany) to be selected to fill such vacancies. One of the persons designated nominated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons Company to serve on the Board of Directors. Such designees shall serve until (such director, the next succeeding annual meeting of stockholders of the Company to be held after such election. (b“Purchaser Designee”) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) for so long as the Fund holds ▇▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) has beneficial ownership of Shares, Exchange Warrants or Exchange Warrant Shares, in the aggregate, in an amount equal to at least 50% of the shares Shares and the Exchange Warrants issued to the ▇▇▇▇▇▇▇ Family Foundation pursuant to the Securities Purchase Agreement and on the Closing Date pursuant to the Exchange Agreement, respectively. In the event the ▇▇▇▇▇▇▇ Family Foundation (or an Affiliate thereof) no longer has beneficial ownership of Preferred Stock Shares, Exchange Warrants or Exchange Warrant Shares in the amount set forth in this Section 2(c), the Company may cause the Purchaser Designee to be replaced with a nominee acceptable to the Company. (d) The Purchaser Designee shall, when up for election, subject to the terms hereof and applicable law, be the Company’s nominee to serve on the Board and the Company shall solicit proxies for the Purchaser Designee to the same extent as it would for any of its other nominees to the Board. The Company’s proxy statement for the election of directors shall include the Purchaser Designee and the recommendation of the Board in favor of election of the Purchaser Designee. (e) For so long as such membership does not conflict with any applicable law or regulation or listing requirement of Nasdaq or other securities exchange on which the Common Stock issued or issuable upon conversion of is listed for trading (as determined in good faith by the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this AgreementBoard), the Fund Purchaser Designee shall be entitled to designate two directors to serve as a member of, or observer to, at such Purchaser Designee’s election, committees of the Company's Board of Directors Board. (one of whom at f) ▇▇▇▇▇▇▇ may, and ▇▇▇▇▇▇▇ may request the Fund's written election may be designated by an Additional Investor) or (ii) so long Purchaser Designee to, as the Fund holds 25% case may be, resign, at any time with or without cause. Any vacancy caused by the resignation of the shares of Common Stock issued or issuable upon conversion Purchaser Designee shall only be filled with another Purchaser Designee. Any vacancy created by any removal of the Preferred Shares (whether Purchaser Designee or not such shares have been converted) acquired by it under this Agreement, an election of ▇▇▇▇▇▇▇ to defer appointing the Fund Purchaser Designee shall also only be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her termfilled with another Purchaser Designee. The Company shall cause such designees not take any action to remove the Purchaser Designee or fill a vacancy reserved for the Purchaser Designee in each case without the consent of ▇▇▇▇▇▇▇ unless and until ▇▇▇▇▇▇▇ is no longer entitled to the Purchaser Designee in accordance with Section 2(c) above. (unless, after customary investigation g) In addition to any other indemnification rights the Purchaser Designee has pursuant to the Transaction Documents and the Company’s Certificate of any such person's qualificationsIncorporation and Bylaws, the Board of Directors reasonably determines in good faith Purchaser Designee that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by serves on the Board shall have the right to the Company's stockholders for election as directorsenter into, and the Company shall use its reasonable best efforts agrees to cause the election of such designeesenter into, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to votean indemnification agreement, in favor a form reasonably satisfactory to the Purchaser Designee, concurrent with such Purchaser Designee becoming a member of the election Board. The Company shall maintain director and officer insurance covering the Purchaser Designee on the same terms and with the same amount of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant coverage as is provided to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the other members of the Board of Directors of Board. The Company shall reimburse the Company, and to designate one reasonable expenses incurred by the Purchaser Designee in connection with attending (whether in person who shall be entitled to attend or telephonically) all meetings of the Board of Directors and or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The Purchaser Designee shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, deferred share units, restricted stock and other equity and equity-related awards, as is provided to receive minutes of all such meetings upon preparation thereofother non-employee directors. (ch) In The Company and the event any designee of the Fund (Purchasers shall take or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee taken all lawful action necessary to ensure at all times as of and following the Fund (Closing Date that the Company’s Certificate of Incorporation and Bylaws are not inconsistent with the provisions of this Agreement and the Transaction Documents or at the Fund's written election, by an Additional Investor)transactions contemplated hereby or thereby.

Board Representation. (a) The As soon as reasonably practicable following the date hereof (and, in any event, within thirty (30) days), the Company shall promptly cause two vacancies take all actions necessary to be created on its enlarge the Board of Directors by one member and appoint ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ to the Board of Directors in accordance with Sections 5.3(b) and 5.3(c). (by increasing b) For so long as (i) the Purchaser (together with its Affiliates) has Beneficial Ownership of a number of members shares of Common Stock not less than the Closing Shares (as adjusted for any stock splits, stock dividends, recapitalizations or similar transactions) and (ii) there does not exist a Material Breach (each, a “Termination Event”), the Purchaser shall have the right to designate to the Board of Directors one individual; provided, however, that such individual must (A) be qualified to serve as a member of the Board of Directors or otherwiseunder all applicable legal, regulatory and stock exchange requirements and (B) agree to comply with all of the Company’s policies and rules applicable to the Company’s directors (clauses (A) and at (B) together, the Initial Closing shall cause two persons designated “Director Requirements”). (c) Prior to designating any director, the Purchaser shall, to the extent requested in writing by the Fund (unlessCompany, after customary investigation enter into a written agreement with such director whereby such director agrees to resign as a member of such persons' qualifications, the Board of Directors reasonably determines in good faith that either upon a Termination Event or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written electionPurchaser’s request, be designated by as applicable. The Purchaser acknowledges and agrees that such an Additional Investor, but agreement is in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders best interest of the Company and the Purchaser, and that the Company shall be a third-party beneficiary of the terms and conditions of such an agreement, and the Company shall have the right to be held after enforce the rights of the Purchaser under such electionan agreement to the extent such rights arise as a result of a Termination Event. (bd) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) For so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be Purchaser is entitled to designate two directors any individual to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors pursuant to this Section 5.3 and subject to the Director Requirements, the Company shall take all action reasonably determines in good faith that available to it to cause such person is not qualified individual (or acceptable under standards applied fairly and equally to all nomineesany replacement designated by the Purchaser) to be included in the slate of nominees recommended by the Board of Directors to the Company's ’s stockholders for election as directors, directors at each annual meeting of the stockholders of the Company (and/or in connection with any election by written consent) and the Company shall use its reasonable best the same efforts to cause the election of such designeesnominee as it uses to cause other nominees recommended by the Board of Directors to be elected, including voting all shares for which the Company holds soliciting proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such person. Notwithstanding nominee. (e) In the foregoingevent that a vacancy is created at any time by the death, if the Fund has not disability, retirement, resignation or removal (with or without cause) of a director nominated or designated a person pursuant to this Section 8.10(a)5.3, or if in the Fund is entitled event of the failure of any such nominee to be elected, the Purchaser shall have the right to designate a director or directors replacement who satisfies the Director Requirements to fill such vacancy, or, if applicable, the Company's Company shall take all necessary action to expand the Board of Directors by virtue of one seat and such vacancy shall then be filled by such replacement designated by the first sentence of this Section 8.10(b) Purchaser. The Company shall take all action reasonably available to it to cause such vacancy to be filled by the replacement so designated, and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and shall promptly elect such designee to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofDirectors. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. (ai) The Company Purchaser shall promptly increase the number of authorized directors from 8 to 9 and cause two vacancies one person designated by the Funds to be elected to fill the vacancy created on its the Board of Directors (by increasing of the Purchaser, effective upon the Closing Date. Thereafter, in the event that the Purchaser shall increase the number of members of its Board of Directors, the Funds shall be entitled to have a number of representatives on the Board of Directors or otherwise) and at of the Initial Closing shall cause two persons designated by Purchaser so that the Fund (unless, after customary investigation of such persons' qualifications, Funds representation on the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated Purchaser shall equal a number of directors equal to the product of the total number of directors on such Board multiplied by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders percentage of the Company to be held after such election. outstanding Purchaser Common Stock that is beneficially owned by the Funds (bother than shares purchased by the Funds from any person other than the Purchaser) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), on a fully diluted basis (i) so long as the Fund holds 50% of including the shares of Preferred Stock or Purchaser Common Stock issued or issuable upon conversion of the Purchaser Convertible Preferred Shares (whether or not Stock) provided, however, that such calculation shall be rounded to the Preferred Shares have been converted) acquired by it under this Agreementnearest whole number of directors; provided, further, that, unless otherwise provided in Section 4.1(a)(ii), irrespective of the above calculation, the Fund Funds shall be have at least one designee on the Board of Directors of the Purchaser. In the event that the Funds are entitled to designate two directors more than one person to serve on the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the CompanyPurchaser's Board of Directors, andthe Funds' designees shall be allocated among the Purchaser's classes of directors as equally as possible. (ii) If the number of directors designated by the Funds is increased to greater than one pursuant to Section 4.11(a)(i), then the Purchaser agrees that as long as the Funds continue to beneficially own in either casethe aggregate a number of shares of the Purchaser Common Stock equal to at least 50% of the outstanding Purchaser Common Stock beneficially owned by the Funds immediately following the Closing, which calculation shall be made as appropriate to take into account any conversions, reclassifications, reorganizations, in-kind dividends, splits, reverse splits and similar events that may occur with the Purchaser Common Stock, at relevant future annual all meetings of the stockholders of 52 46 the Purchaser at which members of the Purchaser's Board of Directors are elected, the Purchaser shall nominate for election as a director as part of the management slate, a number of persons designated by the Funds such that if such persons were elected as directors the number of directors of the Purchaser designated by the Funds pursuant to this Section would equal the number of directors as determined pursuant to Section 4.11(a)(i). The Purchaser also agrees that as long as the Funds continue to beneficially own in the aggregate a number of shares of the Purchaser Common Stock equal to at least 33 1/3% but less than 50% of the Purchaser Common Stock beneficially owned by the Funds immediately following the Closing, which calculation shall be made as appropriate to take into account any conversions, reclassifications, reorganizations, in-kind dividends, splits, reverse splits and similar events that may occur with the Purchaser Common Stock, at all meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, including voting all shares for Purchaser at which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor members of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the CompanyPurchaser's Board of Directors by virtue are elected, the Purchaser shall nominate for election as a director as part of the first sentence of management slate, one person designated by the Funds unless a person designated by the Funds pursuant to this Section 8.10(b) is serving as a director of the Purchaser and such person's term will not expire in connection with such shareholder meeting. The Purchaser agrees to provide the Fund does not designate at least one director same type of support for the election of the designees of the Funds as directors of the Purchaser, its affiliates and its management provides to other persons standing for election as directors of the parent as part of the management slate. In the event that any designee of Purchaser for election to the CompanyPurchaser's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed Directors pursuant to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) foregoing provisions shall cease to serve as a director for any reason, reason (other than by reason the failure of the Fund not being entitled stockholders of Purchaser to designate elect such person as a designee as provided in Section 8.10(a) or 8.10(bdirector), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to therefrom shall be filled by a designee of the Fund Funds. (iii) As long as the Funds have the right to designate at least one nominee to the Board of Directors of the Company, unless otherwise agreed by the Funds, each Committee of the Purchaser's Board of Directors will contain at least one member designated by the Funds. (iv) The Purchaser shall furnish to the Funds' designee or at designees, as the Fundcase may be, on the Purchaser's written electionBoard of Directors all information that is provided to the other members of the Board of Directors of the Purchaser. (v) The Purchaser and the Funds agree that any breach of this Section 4.11 would cause irreparable injury to the Funds and that money damages will be an inadequate remedy for any breach or threatened breach of the agreements described in this Section 4.11. The Purchaser agrees that in the event of a breach or a threatened breach of the agreements described in this Section 4.11, by an Additional Investorthe Funds shall, in addition to other rights and remedies existing in their favor, be entitled to specific performance and/or injunctive relief in order to enforce, or prevent any violations of, the provisions of this Section 4.11 (without the posting of a bond or other security).

Board Representation. (a) The Company For so long as the Purchasers hold, directly or indirectly, any Shares, the Purchasers (collectively and not individually) shall promptly cause two vacancies to be created on its Board entitled to, at each annual meeting of Directors (by increasing the Company’s shareholders, nominate a number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund directors (unless, after customary investigation of such persons' qualificationsPerson(s), the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees“Purchaser Designee(s)”) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until Directors (such number of directors rounded down or up to the next succeeding annual meeting of stockholders of the Company to nearest whole number (which may be held after zero) (e.g., if such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreementnumber equaled 0.5, the Fund shall Purchasers would be entitled to designate two directors one Purchaser Designee, and if such number equaled 0.49, the Purchasers would be entitled to zero Purchaser Designees) equal to the Company's Board number of Directors (one current directors multiplied by a fraction, the numerator of whom at which will be the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% number of the full shares of Common Stock issued into which the then outstanding Shares held, directly or issuable upon conversion indirectly, by the Purchasers could be converted at the then applicable Conversion Rate (as defined in the Certificate of Amendment), and the denominator of which will be the sum of (1) the number of shares of Common Stock then outstanding plus (2) the number of full shares of Common Stock into which the then outstanding Shares held, directly or indirectly, by the Purchasers could be converted at the then applicable Conversion Rate; provided, however, that such nomination is subject to such Purchaser Designee’s satisfaction of all applicable requirements regarding service as a director of the Preferred Shares (whether Company under applicable Law or not stock exchange rules regarding service as a director and such shares have been converted) acquired by it under this Agreementother criteria and qualifications for service as a director applicable to all directors of the Company and in effect from time to time. In the event that a Purchaser Designee is nominated, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause (x) include such designees (unless, after customary investigation Purchaser Designee in its slate of any such person's qualifications, nominees for election to the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate at each annual meeting of nominees recommended by the Board to the Company's stockholders for election as directors, ’s shareholders and (y) recommend that the Company shall use its reasonable best efforts to cause the election of such designees, 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, Company’s shareholders vote in favor of the election of the Purchaser Designee(s). The Company shall take all reasonably necessary actions to ensure that, at all times when a Purchaser Designee is eligible to be appointed or nominated, there are sufficient vacancies on the Board of Directors to permit such persondesignation. Notwithstanding the foregoing, if the Fund has rights of the Purchasers under this Section 5.6(a) shall terminate immediately at such time as the Purchasers (collectively and not designated individually) cease to own, directly or indirectly, any Shares. (b) If any Purchaser Designee ceases to serve on the Board of Directors for any reason during his or her term, the vacancy created thereby shall be filled, and the Company shall cause the Board of Directors to fill such vacancy, with a person new Purchaser Designee eligible to serve on the Board of Directors in accordance with Section 5.6(a). (c) For the avoidance of doubt, a Purchaser Designee shall be entitled (i) to the same retainer, equity compensation and other fees or compensation, including travel and expense reimbursement, paid to the non-executive directors of the Company for his or her service as a director and (ii) to the same indemnification rights as other non-executive directors of the Company, and the Company shall maintain, in full force and effect, directors’ and officers’ liability insurance in reasonable amounts to the same extent it now indemnifies and provides insurance for the non-executive directors on the Board of Directors. A Purchaser Designee shall be bound by the same confidentiality restrictions as the other non-executive directors. (d) If, pursuant to Section 8.10(a)10(C) of the Certificate of Amendment, or if the Fund is Purchasers are entitled to designate a director or vote for the election of additional directors to on the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund number of Purchaser Designee(s) that the Purchasers shall be entitled permitted to receive all notices and materials distributed to the members of the Board of Directors nominate at an annual meeting of the Company, and ’s shareholders pursuant to designate one person who Section 5.6(a) shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofreduced by two. (ce) In For the event any designee avoidance of doubt, the rights of the Fund (or at the Fund's written election, by an Additional Investor) Purchasers provided for in this Section 5.6 shall cease not be transferrable to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)Person.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) For so long as the Fund holds 50% Purchaser beneficially owns a number of the shares of Preferred Stock or Common Stock Series A Shares and/or Ordinary Shares issued or issuable upon conversion of Series A Shares equal to at least seventy-five percent (75%) of the Preferred Series A Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom issued at the Fund's written election may be designated by an Additional Investor) or Closing (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either each case, at relevant future annual meetings of the stockholders of the Companyas appropriately adjusted for share splits, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unlessreverse share splits, after customary investigation of any such person's qualificationsshare dividends, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directorsshare consolidations, recapitalizations and the Company shall use its reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(blike), the Company shall use its reasonable best efforts procure that, and each Shareholder and each Founder agrees to vote, or cause the vacancy resulting thereby to be filled voted, all Shares owned by a designee such Shareholder, or over which such Shareholder and such Founder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that, at annual or extraordinary general meetings of shareholders, pursuant to written consent of the Fund shareholders, or by actions by the Board , the Purchaser shall have the exclusive right to appoint and elect two (or 2) directors of the Board (the “Purchaser Directors,” and each, a “Purchaser Director”). The initial Purchaser Directors shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇. For so long as the Purchaser beneficially owns a number of Series A Shares and/or Ordinary Shares issued upon conversion of Series A Shares equal to at least fifty percent (50%) of the Series A Shares issued at the Fund's Closing, but less than seventy-five percent (75%) of the Series A Shares issued at the Closing (in each case, as appropriately adjusted for share splits, reverse share splits, share dividends, share consolidations, recapitalizations and the like), the Company shall procure that, and each Shareholder and each Founder agrees to vote, or cause to be voted, all Shares owned by such Shareholder, or over which such Shareholder and such Founder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that, at annual or extraordinary general meetings of shareholders, pursuant to written electionconsent of the shareholders, or by an Additional Investor)actions by the Board, the Purchaser shall have the exclusive right to appoint and elect one (1) Purchaser Director to the Board.

Board Representation. (a) The From the date of this Agreement, the Company and, after the Effective Time, the Surviving Corporation, shall promptly cause two vacancies take all Necessary Actions such that: (i) Immediately following the Effective Time, a nominee selected by Sponsor, subject to be created on its Board of Directors the Company’s reasonable approval (by increasing the number of members “Sponsor Director”), shall serve as a director of the Board of Directors or otherwise) and Surviving Corporation for a term expiring at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding second annual meeting of stockholders of the Company following the Effective Time (the “Sponsor Director Term”); (ii) Should the Sponsor Director resign from the Board, become unable to serve on the Board due to death, disability or other reasons or otherwise cease to serve on the Board for any reason (including failure to be held after such election. (belected by the shareholders of the Company) Commencing with such next succeeding annual meeting prior to the expiration of stockholders the Sponsor Director Term, the Sponsor will have the right to designate a replacement director who shall serve as a director of the Company referred for the remainder of the Sponsor Director Term, subject to in Section 8.10(a), the Company’s reasonable approval; and (i) so long From the Effective Time until such time as the Fund holds 50Lock-up Period has ended and 100% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Sponsor Shares have been converted) acquired by it under this Agreementvested (such period, the Fund shall be entitled to designate two directors to the Company's “Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(aObserver Term”), or if Sponsor shall have the Fund is entitled right to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directorsnon-voting observer (in such capacity, the Fund “Board Observer”), who shall initially be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇▇▇”), and to designate one person who shall be entitled to attend all meetings each regularly scheduled, special and other meeting (including telephonic meetings) of the Board of Directors and any committees thereof thereof, and to receive minutes shall be given copies of all notices, reports, minutes, consents and other documents and materials at the time and in the manner as are provided to the Board or the applicable committee thereof, but shall not have any fiduciary duties to the Company or its stockholders as a result of his capacity or service as an observer as contemplated hereby; provided, that should ▇▇. ▇▇▇▇▇▇▇▇ become unable to serve as the Board Observer due to death, disability or other reasons or otherwise cease to serve as the Board Observer for any reason prior to the expiration of the Board Observer Term, the Sponsor will have the right to designate a Person, subject to the Company’s reasonable approval, who shall serve as the Board Observer until the end of the Board Observer Term; provided, further, that the Board Observer shall enter into a mutually acceptable, customary confidentiality agreement in form and substance reasonably satisfactory to the Company, and shall also agree to hold any information received as a Board Observer subject to the fiduciary duties that such meetings upon preparation thereofBoard Observer would have to the Company and its stockholders were such Board Observer a director of the Company; provided, further, that the Board Observer may be excluded from access to any portion of any meeting of the Board or any committee thereof or any portion of meeting materials relating thereto as determined in the Board’s discretion (including if the Board determines that (A) such exclusion is reasonably necessary to (1) preserve attorney-client, work product or similar privilege, (2) comply with applicable law, or (3) protect highly confidential information of the Company or confidential information of third parties that the Company is required to hold in confidence or (B) such access could reasonably be expected to result in an actual or potential conflict of interest with the Company provided, however, that such exclusion shall not extend to any portion of the meeting or meeting materials that does not involve or pertain to such exclusion). For the avoidance of doubt, the Board Observer shall not be a member of the Board, and accordingly shall not be permitted to vote at any meeting of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business. (b) Notwithstanding anything to the contrary herein, any Person serving as the Board Observer designated pursuant to this Section 6 may be removed from their position for Cause; provided that Sponsor shall have the right to designate another Person reasonably acceptable to the Company to serve as the Board Observer until the end of the Board Observer Term. (c) In The Company agrees that any director serving on the event any designee Board pursuant to this Section 6 shall be entitled to the same rights and privileges applicable to all other members of the Fund (Board generally or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason which all such members of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b)Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of such director and provide such director with directors’ and officers’ liability insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Charter, the Bylaws or other organizational documents of the Company, any indemnification agreement with such director, applicable Law or otherwise. (d) The Company shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred by the Board Observer in connection with the Board Observer’s attendance at meetings of the Board and any committees thereof. The Company shall use its commercially reasonable best efforts to cause provide the vacancy resulting thereby Board Observer with directors’ and officers’ liability insurance to be filled by a designee the same extent it provides insurance for the directors of the Fund (or at Company and enter into an indemnification agreement with the Fund's written election, by an Additional Investor)Board Observer in a form mutually acceptable to the Company and the Board Observer.

Board Representation. (a) The Company During the period beginning on the date ninety (90) days after the Closing Date and ending on the earlier of (i) the three (3) year anniversary of the Closing Date and (ii) the first Business Day that the Purchaser’s Fully Diluted Ownership Percentage is less than ten percent (10%) (such period, the “Board Designation Period”), at any time that the Nasdaq Official Closing Price of the Common Stock is below $2.7760 (as adjusted for stock splits, recapitalizations and other similar events) for thirty (30) consecutive trading days, Purchaser shall promptly cause two vacancies be entitled to be created designate one individual (“Purchaser Designee”) to serve on its the Board of Directors (“Designation Right”), pursuant and subject to the terms of this Section 2. (b) In order to exercise the Designation Right, Purchaser shall deliver a written notice to the Company stating that the Purchaser wishes to exercise the Designation Right and setting forth the name of the Purchaser Designee (the “Designation Notice”). As a condition to the appointment of any Purchaser Designee, the Purchaser will also provide, or cause the Purchaser Designee to provide, a completed and executed director nominee questionnaire in a form to be provided by increasing the number Company (a “Nominee Questionnaire”) and any other information that is reasonably required by applicable law for inclusion in the Company’s filings with the SEC relating to the appointment of members such Purchaser Designee, proxy materials for meetings of stockholders, and all other applicable filings with the SEC. (c) Subject to the terms of this Section 2, the Company hereby agrees to appoint the Purchaser Designee to the Board of Directors within fifteen (15) Business Days following receipt of both (i) the Designation Notice and (ii) the completed Nominee Questionnaire. Thereafter, for the remainder of the Board Designation Period, subject to the requirements of fiduciary duties under applicable law, the Company shall include the Purchaser Designee in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company at each annual or special meeting of the Company’s stockholders at which directors of the same class as the Purchaser Designee are to be elected and every adjournment or postponement thereof. If a Purchaser Designee elected or appointed pursuant to the terms hereof ceases to serve as a member of the Board of Directors for any reason, then the Purchaser shall have the right to designate another designee pursuant to the terms of this Agreement, it being understood that any such designee shall serve the remainder of the term of the director whom such designee replaces, and the Company shall take all such action as is reasonable and necessary to promptly cause the election or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation appointment of such persons' qualificationsother designee to the Board of Directors for such term. If the Purchaser has exercised the Designation Right and the Board Designation Period lapses while a Purchaser Designee is serving on the Board of Directors, the Purchaser Designee shall not be required to resign but may continue to serve on the Board of Directors for the remainder of the Purchaser Designee’s then-current term on the Board of Directors. (d) Notwithstanding any other provisions of this Section 2, the Company shall not be required to appoint a Purchaser Designee to the Board of Directors if a majority of the disinterested members of the Board of Directors reasonably determines in good faith faith, after consultation with outside legal counsel, that either or both of such persons is person would not be qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One serve as a director of the persons designated Company under any applicable law (including requirements of fiduciary duties under applicable law), rule or regulation, rule of the stock exchange on which the Company’s shares are listed, the Bylaws or any policy or guidelines previously approved by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until Directors and made available to the next succeeding annual meeting Purchaser, provided that the direct or indirect purpose of stockholders any such policy or guideline is not to obstruct the Purchaser’s right to designate an individual as a nominee to the Board of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock Directors or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it its rights under this Agreement, and provided further that the Fund parties agree any such Purchaser Designee is not required to meet the independence requirements of the SEC or the Nasdaq Stock Market LLC. The Company shall be entitled notify the Purchaser of any objection to designate two directors to a Purchaser Designee promptly following determination by the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long that such Purchaser Designee is not qualified to serve as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one a director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, and in any event on or prior to the fifteenth (15th) Business Day following receipt of the Designation Notice and completed Nominee Questionnaire with respect to such Purchaser Designee, so as to enable the Purchaser to propose a successor replacement Purchaser Designee in accordance with the terms of this Agreement. (e) Purchaser understands that, as a condition to replace any such director upon expiration the appointment of his or her term. The Purchaser Designee, the Company shall cause such designees (unlessmay require the Purchaser Designee to agree in writing, after customary investigation during the term of any such person's qualificationsservice as a director of the Company, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under to (a) comply with all policies, procedures, processes, codes, rules, standards applied fairly and equally guidelines applicable to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the non-employee members of the Board of Directors of Directors, including, without limitation, the Company’s business and ethics code of conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, and related- person transactions policy, in each case as previously approved by the Board of Directors and as amended from time to designate one person who shall be entitled time, and compliance with applicable disclosure controls and procedures, including but not limited to attend all completing an annual director and officer questionnaire; and (b) keep confidential and not publicly disclose discussions and matters considered in meetings of the Board of Directors and committees thereof and to receive minutes its committees, as applicable, or other confidential information of all such meetings upon preparation thereofthe Company that the Purchaser Designee receives from the Company, unless previously disclosed publicly by the Company. (cf) In For so long as any Purchaser Designee serves as a director, such director shall be entitled to (i) the event same reimbursement for travel and other expenses paid to other non-employee directors incurred in connection with his or her duties as a director, including any designee service on any committee of the Fund Board of Directors, and (or at ii) the Fund's written electionsame indemnification, by an Additional Investor) shall cease exculpation and advancement of expenses rights provided to serve as a director for any reasonother non-employee directors, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), and the Company shall use its reasonable best efforts maintain in full force and effect directors’ and officers’ liability insurance coverage with respect to cause such director (subject to the vacancy resulting thereby limitations of such coverage, and with such coverage terms as the Company deems reasonable) to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)same extent that it indemnifies and provides insurance for other non-employee directors.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board Until the earlier of Directors (by increasing i) the number third anniversary of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by or (ii) such time as the Fund Purchaser and its Affiliates do not hold, directly or indirectly, at least a majority of the Shares purchased at the Closings (unless, after customary investigation or the Common Stock received upon the conversion of such persons' qualificationsShares) (as adjusted for stock splits, stock dividends, stock combinations and the like) (the “Requisite Shares”), the Board of Directors reasonably determines in good faith that either Purchaser shall be entitled to, at each annual or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One special meeting of the persons designated by Company’s shareholders during such period, nominate one (1) director (such Person, the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons “Purchaser Designee”) to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting ; provided, however, that such nomination is subject to such Purchaser Designee’s satisfaction of stockholders all applicable requirements regarding service as a director of the Company under applicable Law or stock exchange rules regarding service as a director and such other criteria and qualifications for service as a director applicable to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders all directors of the Company referred and in effect from time to in Section 8.10(a)time. In the event that a Purchaser Designee is nominated, the Company shall (i) so long as the Fund holds 50% include such Purchaser Designee in its slate of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled nominees for election to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified at each annual or acceptable under standards applied fairly and equally to all nominees) to be included in the slate special meeting of nominees recommended by the Board to the Company's stockholders for election as directors’s shareholders, and (ii) recommend that the Company shall use its reasonable best efforts to cause the election of such designees, 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, Company’s shareholders vote in favor of the election of the Purchaser Designee and (iii) support the Purchaser Designee in a manner generally no less rigorous and favorable than the manner in which the Company supports its other nominees. The Company shall take all reasonably necessary actions to ensure that, at all times when a Purchaser Designee is eligible to be appointed or nominated, there are sufficient vacancies on the Board of Directors to permit such persondesignation. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue rights of the first sentence of Purchaser under this Section 8.10(b5.5(a) to nominate one (1) director shall terminate immediately on the earlier of (A) the third anniversary of the Initial Closing or (B) such time as the Purchaser and the Fund does not designate its Affiliates ceases to own, directly or indirectly, at least one director a majority of the Requisite Shares. (b) If any Purchaser Designee ceases to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of serve on the Board of Directors for any reason during his or her term, the vacancy created thereby shall be filled, and the Company shall cause the Board of Directors to fill such vacancy, with a new Purchaser Designee eligible to serve on the Board of Directors in accordance with Section 5.5(a); provided, however, notwithstanding anything to the contrary in this Agreement, in the event that the Purchaser’s rights under Section 5.5(a) are terminated, any Purchaser Designee serving on the Board of Directors shall immediately tender his or her resignation; provided further that (i) such requirement may be waived in advance by the Company’s Compensation, Nominating & Governance Committee and (ii) such resignation shall be subject to the acceptance by the Board of Directors. (c) For the avoidance of doubt, a Purchaser Designee shall be entitled (i) to the same retainer, equity compensation and other fees or compensation, including travel and expense reimbursement, paid to the non-executive directors of the Company for his or her service as a director and (ii) to the same indemnification rights as other non-executive directors of the Company, and the Company shall maintain, in full force and effect, directors’ and officers’ liability insurance in reasonable amounts to designate the same extent it now indemnifies and provides insurance for the non-executive directors on the Board of Directors. A Purchaser Designee shall be bound by the same confidentiality restrictions as the other non-executive directors. Any director minimum ownership requirements shall be deemed satisfied in respect of the Purchaser Designee by the Shares, PIK Shares and Conversion Shares, as applicable, held by the Purchaser or one person who or more of its Affiliates. The Company acknowledges and agrees that it is the indemnitor of first resort (for the Purchase Designee in connection with matters arising from Purchaser Designee’s service as a director of the Company). For the avoidance of doubt, the Purchaser Designee shall be entitled to attend all meetings of customary access and information rights in the same manner as received by the other directors on the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofDirectors. (cd) In Following the event any designee third anniversary of the Fund (Initial Closing, for so long as the Purchaser holds, directly or indirectly, at the Fund's written election, by an Additional Investor) shall cease to serve as least a director for any reason, other than by reason majority of the Fund not being entitled to designate a designee as provided Requisite Shares, whenever dividends on any Series C Preferred Stock of the Purchaser shall be in Section 8.10(aarrears for six (6) or 8.10(bmore consecutive or non-consecutive Dividend Periods (a “Preferred Dividend Default”), the Purchaser shall be entitled to nominate one (1) additional director of the Company (the “Preferred Director”) for election at the next annual meeting of stockholders and at each subsequent meeting, until all dividends accumulated on such Series C Preferred Stock for the past Dividend Periods and the then current Dividend Period shall use its reasonable best efforts have been fully paid or declared in the form of PIK Shares or Additional Liquidation Preference. In such case, should a Preferred Director be subsequently elected, the entire Board shall be increased by one (1) director. Notwithstanding the foregoing, if, prior to cause the election of any additional director in the manner set forth herein, all accumulated dividends are paid or issued on the Series C Preferred Stock, no such additional director shall be so elected. If and when all accumulated dividends shall have been paid or issued on such Series C Preferred Stock, the right of the Purchaser to nominate the Preferred Director shall immediately cease (subject to revesting in the event of each and every Preferred Dividend Default), and the term of office of any Preferred Director so elected shall immediately terminate and the entire Board shall be reduced accordingly. So long as a Preferred Dividend Default shall continue, the Purchaser shall be entitled to nominate a director to fill any vacancy resulting thereby in the office of a Preferred Director. For purposes of the foregoing paragraph, dividends shall be considered to be filled in arrears with respect to a Dividend Period if (i) the Company has not issued PIK Shares for such Dividend Period and (ii) the Liquidation Preference of such Shares has not been increased by a designee the Additional Liquidation Preference, in each case, in accordance with and within the times set forth in the Series C Certificate of Amendment. (e) For the avoidance of doubt, the rights of the Fund (or at the Fund's written election, by an Additional Investor)Purchaser provided for in this Section 5.5 shall not be transferrable to any other Person other than Purchaser’s Affiliates.

Board Representation. (a) The Company shall promptly take all requisite action such that on the date hereof, the size of the Board shall be set at nine (9) members and five (5) individuals designated by the WP Purchasers (each director designated by the WP Purchasers under this Agreement, a “WP Purchaser Designee”, and collectively, the “WP Purchaser Designees”) as Board nominees shall be appointed to the Board, and on the date hereof, the Resigning Directors shall resign; provided, however, the WP Purchasers shall be permitted, in their discretion, to defer appointment of one or more of the WP Purchaser Designees to one or more subsequent dates. (b) (i) From and after the date hereof, the Company shall cause two vacancies five (5) WP Purchaser Designees to be created nominated by the Company to serve on its the Board of Directors (by increasing and the total number of members of the Board shall be nine (9) or fewer to the extent certain of Directors the WP Purchaser Designees have not been appointed to the Board (as permitted above). Any WP Purchaser Designees shall be appointed to the Board on the date hereof or otherwiseto the extent designated following the First Closing Date, shall be appointed to the Board promptly following notice from the WP Purchasers and in any event, within one (1) Business Day. From and at after the Initial Closing date hereof, the Company shall cause two persons designated not change the size of the Board without the prior written consent of the WP Purchasers; provided that, unless waived by the Fund (unlessWP Purchasers, after customary investigation in the event the size of such persons' qualificationsthe Board is changed, the WP Purchasers shall have the right to designate that number of WP Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less that set forth in the previous sentence. For so long as such membership does not conflict with any applicable law or regulation or listing requirement of Directors reasonably determines any Approved Market on which the Common Stock is listed for trading (as determined in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund mayBoard), the WP Purchaser Designees shall be entitled to serve as a member of, or observer to, at the Fund's written WP Purchaser Designee’s election, be designated by an Additional Investoreach of the committees of the Board, but except for any committee formed to consider a transaction between the Company and a member of the WP Purchaser Group. The Company acknowledges that the WP Purchaser Designees intend to hold positions on the Board committees and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of the WP Purchaser Designees to any such committees (subject to the limitations in no case the immediately preceding sentence). The Company shall consult with the Holders WP Purchasers, and the WP Purchasers shall have the right to participate (including in any interviews), in the selection of Preferred Stock collectively designate more than two persons to other directors that will serve on the Board of DirectorsBoard. Such designees The WP Purchasers’ rights set forth in this Section 5.16(b) shall serve until terminate on the next succeeding annual meeting of stockholders of first date on which the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50WP Purchasers collectively do not own at least 75% of the shares of Series A Preferred Stock or Common Stock actually issued or issuable upon to, and purchased by, the WP Purchasers hereunder (including Conversion Shares issued on conversion thereof and any other securities of the Preferred Company or any successor thereto into which such Shares are converted or exchanged). (whether or not c) Solely with respect to those WP Purchaser Designees that the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be WP Purchasers are entitled to designate two directors pursuant to the Company's Board of Directors Sections 5.16(a) and/or 5.16(b) (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so and solely as long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be WP Purchasers remain entitled to so designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. WP Purchaser Designees): (i) The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause have such WP Purchaser Designees elected as directors of the Company, including, without limitation, including such WP Purchaser Designees in the Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for such designeesWP Purchaser Designees to the same extent as it does for any of its nominees to the Board, and including voting all shares for which the Company holds proxies (unless otherwise directed by recommendation of the stockholder submitting such proxy) or is otherwise entitled to vote, Board in favor of the election of the WP Purchaser Designees. In the event a WP Purchaser Designee is not elected at a stockholders meeting at which such person. Notwithstanding designee is up for election, the foregoing, if the Fund has not designated a person pursuant Company shall cause such WP Purchase Designee to Section 8.10(a), or if the Fund is entitled to designate a director or directors be appointed to the Company's Board Board. (ii) The WP Purchasers may remove any WP Purchaser Designee at any time, with or without cause. Any vacancy in the position of Directors such a WP Purchaser Designee shall only be filled with another WP Purchaser Designee. Any vacancy created by virtue any removal of a WP Purchaser Designee or an election of the first sentence WP Purchasers to defer appointing one or more WP Purchaser Designees shall also only be filled with another WP Purchaser Designee. The Company shall not take any action to remove any WP Purchaser Designee without the consent of this Section 8.10(b) and the Fund does not designate at least one director WP Purchasers or fill a vacancy reserved for a WP Purchaser Designee. Any replacement WP Purchaser Designees shall be appointed to the Company's Board of Directorspromptly following notice from the WP Purchasers and in any event, the Fund within two (2) Business Days. (iii) Each WP Purchaser Designee shall be entitled given notice of (in the same manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such WP Purchaser Designee serves. Each WP Purchaser Designee shall receive a copy of all notices notices, agendas and other materials distributed to the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such WP Purchaser Designee will be in attendance at the meeting. (d) In addition to any other indemnification rights the WP Purchaser Designees have pursuant to this Agreement, the Certificate of Incorporation and the Bylaws, each such WP Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an Indemnification Agreement and a side letter contemplated by Section 6.1(n). The Company shall maintain director and officer insurance covering the WP Purchaser Designees on the same terms and with the same amount of coverage as is provided to other members of the Board of Directors of Board. The Company shall reimburse the Company, and to designate one reasonable expenses incurred by the WP Purchaser Designees in connection with attending (whether in person who shall be entitled to attend or telephonically) all meetings of the Board of Directors and or committees thereof or other Company related meetings to the same extent as all other members of the Board are reimbursed for such expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other non-employee directors). The WP Purchaser Designees shall be entitled to the same compensation for service on the Board, including, without limitation, cash fees, stock options, restricted stock and other equity awards, as is provided to receive minutes of all such meetings upon preparation thereofother non-employee directors. (ce) In The Company and the event any designee Purchasers shall take or cause to be taken all lawful action necessary to ensure at all times as of and following the Closing Date that the Organizational Documents of the Fund Company are not inconsistent with the provisions of this Agreement and the Transaction Documents or the transactions contemplated hereby or thereby. (or at f) Solely during the Fund's written electionperiod from the date hereof until the date that is 185 days after the date hereof, by an Additional Investor) the WP Purchasers shall cease not take any action to serve remove ▇▇▇▇▇▇ ▇▇▇▇▇ as a director for any reason, other than by reason member of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)Board.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding At each annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace or at any such director upon expiration meeting of his or her term. The Company shall cause such designees (unless, after customary investigation the stockholders of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, including voting all shares for at 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company (the “Board of Directors”) are to be elected, or whenever members of the Board of Directors are to be elected by written consent, the Stockholders shall vote or act with respect to their shares so as to elect: (a) the Company’s Chief Executive Officer, initially ▇▇▇▇ ▇▇▇▇▇, as a director elected by the holders of Preferred Stock and Common Stock, voting together as a single class on an as-converted basis; provided that if for some reason he or she shall cease to designate one serve as the Company’s Chief Executive Officer, each of the Stockholders shall promptly vote their respective shares (i) to remove the former Chief Executive Officer from the Board of Directors if such person who shall be entitled to attend all meetings has not resigned as a member of the Board of Directors and committees thereof (ii) to elect such person’s replacement as the Company’s Chief Executive Officer as a director; (b) one (1) director to be designated by ▇▇▇▇▇▇ Investment Company LLC as one of the directors elected by the holders of Preferred Stock and Common Stock, voting together as a single class on an as-converted basis, provided, however, if ▇▇▇▇▇▇ Investment Company LLC no longer holds at least 500,000 shares of the Company’s capital stock at any time, this right to receive minutes of all such meetings upon preparation thereof.designate a director shall terminate; and (c) In one (1) director to be designated by RTW Master Fund, LTD and RTW Innovation Master Fund, LTD (together,“RTW”) as the event any designee director elected by RTW (the “RTW Director”); provided, however, that RTW’s right to designate the RTW Director under this Section 1.1(c) shall be subject to and contingent upon the completion of the Fund Second Tranche Investment (or as defined in the Purchase Agreement), and RTW shall have no right to designate the RTW Director unless and until such time that RTW purchases the Second Tranche Investment Amount (as defined in the Purchase Agreement) from the Company in the Second Tranche Closing; provided further, however, if RTW no longer holds at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason least 60% of the Fund not being entitled Preferred Stock purchased by RTW under the Purchase Agreement at any time after the Second Tranche Closing (as defined in the Purchase Agreement), this right to designate a designee as provided in Section 8.10(a) or 8.10(b), director shall terminate immediately with no further action required by the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)RTW.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members Effective as of the Board of Directors or otherwise) and at the Initial Investment Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualificationsDate, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund Purchaser shall be entitled to designate two directors to allowed one representative (the Company's Board “Perseus Observer”) of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreementits choice, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled J▇▇▇ ▇▇▇, M▇▇▇▇▇▇ ▇▇▇▇▇▇ or another person reasonably acceptable to the Board, to attend all meetings of the Board of Directors and committees thereof and to receive minutes in a nonvoting capacity. In connection therewith, the Company shall provide the Perseus Observer with copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board. Notwithstanding the foregoing, the Purchaser shall not be entitled to exercise the Perseus Observer rights set forth herein at any time that a Perseus Director is then serving on the Board; provided, however, that the Company reserves the right to exclude such Perseus Observer from access to any material or meeting or portion thereof if the Company in good faith believes that such exclusion is necessary to preserve the attorney-client privilege or for other similar reasons. This right shall expire at such time that the Company has repaid the Senior Secured Note in full and the Perseus Ownership Percentage falls below 5%. (b) Effective as of the Subsequent Investment Closing, the Company shall take all actions within its control to provide the Purchaser with the representation on the Board contemplated by this Section 5.6, including without limitation appointing the Requisite Number of representatives identified by the Purchaser to the Board, granting one Perseus Director the rights contemplated by clause (ii) of this Section 5.6(b), and, unless the Board determines in good faith that doing so would be inconsistent with its fiduciary duties under applicable Law, nominating representatives identified by the Purchaser for election as directors of the Company at any meeting of the Company’s stockholders at which such directors will be elected, recommending their election to the Board, and soliciting and voting proxies in favor of their election. (i) The “Requisite Number” of Perseus Directors shall be the number of directors, rounded up to the next whole number, necessary for the Purchaser’s percentage representation on the Board to be at least equal to the percentage of the Company’s then outstanding Common Shares the Purchaser and its Affiliates hold assuming the conversion of the Senior Secured Convertible Note and the exercise of all Warrants (the “Perseus Ownership Percentage”). The Purchaser shall promptly notify the Company in writing when the Requisite Number of Perseus Directors increases or decreases following the Subsequent Investment Closing, along with information about its holdings reasonably sufficient for the Company to verify the Perseus Ownership Percentage, and the Requisite Number shall not be deemed to have changed until Perseus shall have given that notice. Notwithstanding this provision, the Requisite Number shall become zero at such time as the Perseus Ownership Percentage falls below 5%. In the event (i) the Requisite Number of Perseus Directors constitutes a majority of the members of the Board and (ii) it is necessary for one of such Perseus Directors to be “independent” within the definition of such term contained in Nasdaq Rule 4200(a)(15) (or any successor rule) for the Company to be in compliance with applicable Nasdaq Rules, Perseus shall select one Perseus Director who is “independent” under such rule. (ii) At least one Perseus Director shall have the right to attend and participate fully in a non-voting capacity in all meetings of each of the Board’s Nominating and Corporate Governance and Compensation Committees, or any equivalent committees, including receipt of all information provided to Committee members; provided, however, that the Company reserves the right to exclude such Perseus Director from access to any material or meeting or portion thereof if the Company in good faith believes, upon preparation thereofadvice of counsel, that such exclusion is necessary to preserve the attorney-client privilege or for other similar reasons. (iii) The Purchaser shall timely notify the Company in writing of any Person designated by it pursuant to this Section 5.6 to stand as a nominee for election to the Board, and shall promptly furnish all information necessary for all required filings with the SEC. In the absence of any notice from the Purchaser, the Perseus Directors then serving and previously designated by the Purchaser shall be renominated. (iv) Any vacancy on the Board created by the resignation, removal, incapacity or death of any Perseus Director shall be filled by another Perseus Director in accordance with the terms of this Section 5.6 and Article II, Section 8 of the Company’s Bylaws. (c) In Each Perseus Director shall be entitled to (i) the event any designee same compensation paid to other non-management directors of the Fund Company, (ii) reimbursement for reasonable out-of-pocket expenses (including but not limited to travel and lodging) incurred in connection with the performance of his or at the Fund's written election, by an Additional Investor) shall cease to serve her duties as a director for any reason, other than by reason (including attendance at meetings of the Fund not being Board or any committees), (iii) directors’ liability insurance and (iv) indemnification in accordance with the Company’s Certificate of Incorporation, Bylaws and policies established by the Board for all directors generally. The Perseus Observer shall be entitled to designate a designee as reimbursement for reasonable out-of-pocket expenses (including but not limited to travel and lodging) incurred in connection with attendance at meetings of the Board. The Company shall pay all compensation and reimbursement for expenses provided for under this Section 5.6(c) to Perseus, L.L.C. at the address listed in Section 8.10(a8.7 unless otherwise notified by the Purchaser. (d) or 8.10(b)The Company shall take all actions within its control so that, as of the Initial Investment Closing, the size of the Board is five After the Initial Investment Closing, the Company shall use its reasonable best efforts to cause not permit the vacancy resulting thereby size of the Board to be filled by a designee increased without the prior written consent of the Fund Purchaser. (e) The obligations of the Company under this Section 5.6 (other than under clause (c) of this Section 5.6) shall terminate at such time as the Purchaser and its Affiliates hold Common Shares or at other securities convertible into or exercisable for Common Shares that upon such conversion or exercise, in the Fund's written electionaggregate, by an Additional Investor)would represent less than 5% of the Company’s outstanding Common Shares on a fully-diluted basis.

Board Representation. (a) The Company shall shall, within 30 days after the Closing Date, promptly cause two vacancies one vacancy to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing such time shall cause two persons one person designated by the Fund Purchaser (unless, after customary investigation of such persons' Person's qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons Person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directorsvacancy. Such designees designee shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund Purchaser holds 5020% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund Purchaser shall be entitled to designate two directors (in addition to any rights granted to the Company's Board holders of Directors (one Preferred Stock as set forth in the Certificate of whom at the Fund's written election may be designated by an Additional InvestorDesignation) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, Directors and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees designee of the Purchaser (unless, after customary investigation of any such personPerson's qualifications, the Board of Directors reasonably determines in good faith that such person Person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders stock holders for election as directors, and the Company shall use its reasonable best efforts to cause the election of such designeesdesignee, 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 person. Notwithstanding the foregoing, if the Fund Purchaser has not designated a person pursuant to Section 8.10(a), or if the Fund Purchaser is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund Purchaser does not designate at least one director to the Company's Board of Directors, the Fund Purchaser shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any such designee of the Fund (or at the Fund's written election, by an Additional Investor) Purchaser shall cease to serve as a director for any reason, other than by reason of the Fund Purchaser not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund Purchaser. (or at d) For so long as the Fund's written electionPurchaser shall have the rights granted pursuant to Sections 8.10(a), by an Additional Investor)(b) and (c) above, the Purchaser shall have the right (in addition to such other rights) to have a representative attend all regular and special meetings of the Board of Directors of the Company. These visitation rights shall include the right to receive the same notice and materials provided to Board and committee members.

Board Representation. (a) The Company Board shall promptly cause two vacancies consist of up to nine members. The Purchaser shall be created on its Board of Directors (by increasing the number of members of entitled to designate nominees for election or appointment to the Board of Directors or otherwise(the “Purchaser Representatives”) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election.as follows: (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund Purchaser holds 50% at least 90,000 Convertible Preferred Shares (or the corresponding number of the shares of Preferred Stock or Common Stock Shares issued or issuable upon conversion of the Convertible Preferred Shares), it shall be entitled to designate three Purchaser Representatives; (ii) so long as the Purchaser holds at least 45,000 Convertible Preferred Shares (whether or not the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares have been converted) acquired by Shares), it under this Agreement, the Fund shall be entitled to designate two directors Purchaser Representatives; and (iii) so long as the Purchaser holds at least 22,500 Convertible Preferred Shares (or the corresponding number of the Common Shares issued upon conversion of the Convertible Preferred Shares), it shall be entitled to designate one Purchaser Representative. The parties hereto acknowledge and agree that the Purchaser is entitled to appoint certain designees to the Company's Board of Directors (one of whom at pursuant to the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% terms of the shares Special Voting Preferred Shares and that this provision is intended to be in furtherance of Common Stock issued or issuable upon conversion such rights. In no event will this Section 2.1 be construed to duplicate the rights granted to the Purchaser pursuant to the terms of the Special Voting Preferred Shares. The Purchaser shall not Transfer any of the Special Voting Preferred Shares. In the event that the Purchaser no longer holds any Special Voting Preferred Shares (whether or and is therefore not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director elect directors to the Company's ’s Board of DirectorsDirectors pursuant to the terms thereof, and, in either case, this Section 2.1 shall be controlling. (b) The Purchaser acknowledges that three Purchaser Representatives were elected to the Board at relevant future annual meetings of the stockholders Meeting. Subject to the Purchaser’s Representative(s) consenting and writing to serve as a director of the Company, a successor to replace any such director upon expiration of his or her term. The the Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nomineesPurchaser Representative(s) to be included in the slate of as nominees recommended proposed by the Board to the Company's stockholders Shareholders for election as directors, and to the Board at each future meeting of the Shareholders where directors are to be elected by Shareholders. The Company shall use its reasonable best commercial efforts to cause the election of such designees, including voting all shares for which the Company holds Purchaser Representative(s) at such meetings and shall solicit proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor favour of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(bPurchaser Representative(s) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofmeetings. (c) The Purchaser shall advise the Company of the identity of any Purchaser Representative at least 50 days prior to any meeting of Shareholders at which directors of the Company are to be elected or within 10 days of being notified of the record date for such a meeting. If the Purchaser does not advise the Company of the identity of any Purchaser Representative prior to such deadline, then the Purchaser will be deemed to have nominated its encumbent nominee. Any nominations by the Purchaser shall be subject to such nominee being acceptable to the Company’s corporate governance and nominating committee, acting reasonably. (d) In the event that any designee of the Fund (or at the Fund's written election, by an Additional Investor) Purchaser Representative shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled Company, whether due to designate a designee as provided in Section 8.10(a) such Purchaser Representative’s death, disability, resignation or 8.10(b)removal, the Company shall use its reasonable best efforts to cause the Board to appoint a replacement Purchaser Representative designated by the Purchaser to fill the vacancy resulting thereby created by such death, disability, resignation or removal. (e) The Purchaser shall promptly notify the Company in writing if ceases to be filled by a designee hold at least 90,000, 45,000 or 22,500, as the case may be, Convertible Preferred Shares (or the corresponding number of the Fund (or Common Shares issued upon conversion of the Convertible Preferred Shares). In addition, the Purchaser shall deliver a certificate to the Company, from time-to-time as the Company shall reasonably request, certifying the number of securities of the Company beneficially owned by the Purchaser as at the Fund's written election, by an Additional Investor)date of such certificate.

Board Representation. (a) The Notwithstanding the provisions of the Advance Notice Policy, from and after the Closing Date and for as long as the Investor’s Percentage has not fallen below 5% (calculated in accordance with Section 4.10): (i) the Company shall promptly cause two vacancies take all steps necessary to be created on its appoint the Investor’s Nominee to the Board of Directors (by increasing the number of members as of the Board of Directors or otherwise) and at Closing Time to hold office for a term expiring not earlier than the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the Company’s next succeeding annual meeting of stockholders Shareholders at which directors of the Company are to be held after such election.elected; (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund Investor shall be entitled to designate one director to individual (the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees“Investor’s Nominee”) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoingnominated and, if the Fund has not designated elected, to serve as a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members member of the Board for a term expiring not earlier than the Company’s next meeting of Directors Shareholders at which directors of the CompanyCompany are to be elected, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all provided that such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease ’s Nominee consents in writing to serve as a director and is eligible under the Act to serve as a director; (iii) at the first annual or other meeting of Shareholders that would result in the end of the term of the Investor’s Nominee, at which directors of the Company are to be elected, and at each meeting of Shareholders thereafter at which directors are to be elected, the Company shall nominate to the Board for election the Investor’s Nominee, along with any other nominees proposed by the Company to the Shareholders for election as directors; (iv) the Company shall recommend to Shareholders entitled to vote on the election of directors at any meeting of Shareholders that such Shareholders vote in favour of or consent to the election (or against the removal, as the case may be) of the Investor’s Nominee as a director of the Company; (v) the Company shall (i) solicit proxies in favour of the election of the Investor’s Nominee in the event the Company intends to solicit any such proxies in connection with a meeting of Shareholders, and (ii) cause all properly completed proxies received by the Company in respect of the election or removal of directors at the relevant time to be voted in the manner specified in such proxies; (vi) the Company shall notify the Investor in writing promptly upon determining the date of any meeting of the Shareholders at which directors of the Company are to be elected and the Investor shall advise the Company and the Board of the name of the Investor’s Nominee within 30 days after receiving such notice; (vii) if the Investor does not advise the Company and the Board of the Investor’s Nominee within the time set forth in Section 4.7(a)(vi), then the Investor will be deemed to have designated its incumbent nominee for nomination for election at the relevant meeting of the Shareholders; (viii) if the Investor’s Nominee ceases to hold office as (or otherwise does not become) a director of the Company for any reason, other than by reason the Investor shall be entitled to nominate or appoint (as applicable) an individual to replace him or her and the Company shall promptly take all steps necessary to promptly appoint such individual to the Board to replace the Investor’s Nominee who has ceased to or does not otherwise hold office; (ix) the Investor will give due consideration to the view of the Fund not being independent members of the Board as to whether such person is an appropriate addition to the Board based on serious and objectively reasonable concerns. The Company may veto the Investor’s Nominee if such Investor’s Nominee has previously been removed by a resolution of the Shareholders, provided that the Investor shall be entitled to designate nominate further persons to the Board in replacement of any such vetoed person; (x) the Investor acknowledges that any appointment to the Company’s Board must be ratified annually by a designee as provided in Section 8.10(aShareholder vote at the Company’s annual general or special meetings of Shareholders; (xi) or 8.10(b)upon election to the Board, the Company shall use its reasonable best efforts acknowledges that the Investor’s Nominee shall: (A) be eligible to cause serve on any committee of the vacancy resulting thereby Board in the same manner as all other directors of the Company, provided that such Investor’s Nominee satisfies the eligibility criteria for such committee and the Board has approved, and has received regulatory approval (if required by Applicable Law) of, the Investor’s Nominee serving as a member of such committee; (B) at all times retain full discretion to independently vote his or her Common Shares; (C) be entitled to all the rights and privileges of the other members of the Board and committee members, including, without limitation, access to the Company’s outside advisors; and (D) be entitled to be filled indemnified by a designee the Company on the same terms (including run-off) as other members of the Fund Board and be included in the Company’s D&O insurance policy on the same terms as other members of the Board. (or at xii) upon election of the Fund's written electionInvestor’s Nominee to the Board, by the Company shall: (A) enter into an Additional indemnification agreement with the Investor)’s Nominee consistent with the Company’s practices; and (B) acquire for any Investor’s Nominee liability insurance on the same terms as the other members of the Board.

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) Each Stockholder agrees that it shall vote, or execute a written consent in lieu thereof with respect to all of the Securities beneficially owned or held of record by it or cause all of the Securities beneficially owned by it to be voted, or cause a written consent in lieu thereof to be executed, to elect a Board to be composed as follows: (A) Subject to Section 2.1(b)(ii) and (v), for so long as a Founder Group meets the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this AgreementFounder Group Minimum Ownership Condition, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund Founder Group shall be entitled to designate one (1) director (each, a “Founder Designee”); provided that if (x) neither Founder Group meets the Founder Group Minimum Ownership Condition individually, but collectively, both Founder Groups Beneficially Own, in the aggregate, a number of Securities representing an Ownership Percentage of at least 5% and (y) neither Founder Group has made any Transfer other than Transfers to the Company's Board of Directors, and, in either case, at relevant future annual meetings Permitted Group of the stockholders of Founder who is associated with such Founder Group then the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees Founder Groups (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nomineescollectively) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed designate one (1) director (a “Joint Founder Designee”), provided, further, that, if one Founder Group has made any Transfer other than Transfers to the members Permitted Group of the Board of Directors Founder who is associated with such Founder Group but the other Founder Group has not, and the condition in clause (x) of the Companypreceding proviso has been met, then the condition in clause (y) of the preceding proviso will be deemed to have been met and the Founder whose Founder Group has not made any Transfer other than Transfers to designate one person who the Permitted Group of such Founder shall be entitled to attend all meetings designate such Joint Founder Designee; and (B) The Sponsor shall have the right, but not the obligation, to designate, and the individuals nominated for election as directors by or at the direction of the Board or a duly authorized committee of the Board shall include, a number of individuals such that, upon the election of each such individual, and each other individual nominated by or at the direction of the Board or a duly authorized committee of the Board, as a director of the Company and taking into account any director continuing to serve without the need for re-election, the number of Blackstone Designees (as defined below) serving as directors of the Company will be equal to: (i) if the Sponsor and its affiliates collectively Beneficially Own 50% or more of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 50% of the Total Number of Directors; (ii) if the Sponsor and its Affiliates collectively Beneficially Own at least 40% (but less than 50%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 40% of the Total Number of Directors; (iii) if the Sponsor and its Affiliates collectively Beneficially Own at least 30% (but less than 40%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 30% of the Total Number of Directors; (iv) if the Sponsor and its Affiliates collectively Beneficially Own at least 20% (but less than 30%) of the Common Stock as of the record date for such meeting, the lowest whole number that is greater than 20% of the Total Number of Directors; and (v) if the Sponsor and its Affiliates collectively Beneficially Own at least 5% (but less than 20%) of the Common Stock as of the record date for such meeting, the lowest whole number (such number always being equal to or greater than one) that is greater than 10% of the Total Number of Directors (in each case, each such person a “Blackstone Designee”). (each director so designated by a Founder Group or Sponsor, a “Designee”); provided that if a Founder Group is entitled to only one Designee, such Designee shall be the applicable Founder of such Founder Group unless such Founder cannot serve on the Board due to death or disability; provided, further, that in the event a Founder Group is entitled to one Designee but the applicable Founder of such Founder Group cannot serve on the Board due to death or disability, such Designee shall be chosen by the other Founder, which individual must have relevant industry experience and committees thereof such surviving Founder shall consult with the Blackstone Designees prior to choosing such Designee; provided, further, in the event both Founder Groups are entitled to each designate one Designee but both Founders are unable to serve on the Board due to death or disability, each such Designee shall be chosen by their respective Founder Groups, which individual must have industry experience and be reasonably acceptable to receive minutes of all the Blackstone Designees (such meetings upon preparation thereofapproval shall not be unreasonably withheld, conditioned or delayed). (cii) Subject to Section 2.1(b)(i)(A), if at any time a Founder Group fails to meet the Founder Group Minimum Ownership Condition, then such Founder Group’s right to designate, nominate and replace any member of the Board (other than a Joint Founder Designee, if applicable) shall terminate and reduce to zero (0) directors, and such Founder Group agrees to promptly thereafter cause its Designee director to tender his or her immediate resignation from the Board. (iii) In the event that a vacancy is created on the Board at any designee time by the death, disability, retirement, resignation or removal of any Designee director, only the Fund Founder Group or Stockholder that designated such deceased, disabled, retired, resigning or removed Designee may designate another individual (or at the Fund's written election, by an Additional Investor“Replacement Nominee”) shall cease to fill such vacancy and serve as a director for any reasonon the Board and each Stockholder agrees that it shall vote, other than by reason or execute a written consent in lieu thereof with respect to all of the Fund not being entitled to designate a designee as provided in Section 8.10(a) Securities beneficially owned or 8.10(b), held of record by it or cause all of the Company shall use its reasonable best efforts to cause the vacancy resulting thereby Securities beneficially owned by it to be filled by voted, or cause a designee written consent in lieu thereof to be executed to elect such Replacement Nominee to the Board. (iv) Directors are subject to removal pursuant to the applicable provisions of the Fund Certificate of Incorporation of the Company; provided, however, for as long as this Agreement remains in effect, (or at x) the Fund's written electionBlackstone Designees may only be removed with the consent of the Sponsor, by an Additional Investor)(y) each Founder Designee may only be removed with the consent of the applicable Founder Group that designated such Founder Designee and (z) the Joint Founder Designee may only be removed with the consent of both Founder Groups, in each case delivered in accordance with Section 7.13 hereof.

Board Representation. The Company agrees: (a) The Company shall promptly cause two vacancies (i) to be created on its Board of Directors (by increasing increase the number of members size of the Board board of Directors or otherwisedirectors of the Company (the “Board”) and at the Initial Closing shall cause two persons designated by the Fund from eleven (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees11) to be selected twelve (12) members, and (ii) to fill such vacancies. One of appoint ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or his Replacement (as hereinafter defined) (the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve “Icahn Suggested Nominee”) as a Class II director on the Board of Directors. Such designees shall serve until (with a term expiring at the next succeeding 2013 annual meeting of stockholders stockholders), effective as of the date of the 2012 annual meeting of stockholders, which meeting the Company to agrees will be held after such election.no later than July 24, 2012 (the meeting of stockholders held no later than July 24, 2012, the “2012 Annual Meeting”); (b) Commencing with such next succeeding annual meeting of stockholders of if, from the Company referred to in Section 8.10(a), (i) so long as date hereof until the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement2012 Annual Meeting, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) Icahn Suggested Nominee is unable or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease unwilling to serve as a director for any reason, the Icahn Group shall have the right to submit the name of a replacement (the “Replacement”) to the Company for its reasonable approval and who shall serve as the designee for appointment as director; (c) if the Icahn Suggested Nominee (or his Replacement), once on the Board, ceases to continue to serve as a director prior to the 2013 annual meeting of stockholders, for any reason (other than by reason pursuant to Section 2(d)), the Icahn Group shall have the right to submit the name of a Replacement to the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b)Company for its reasonable approval and who, following such approval, the Company shall use appoint, as promptly as practicable, to serve as director in substitution for the Icahn Suggested Nominee for the remainder of the term expiring at the 2013 annual meeting of stockholders; provided, however, that the Icahn Group shall not have the right to submit the name of a Replacement to the Company following delivery of the notice contemplated by Section 2(a)(z); (d) for purposes of clauses (b) and (c) above, if the proposed Replacement is not approved by the Company, the Icahn Group shall have the right to submit another proposed Replacement to the Company for its reasonable best efforts approval. The Icahn Group shall have the right to cause continue submitting the vacancy resulting thereby name of a proposed Replacement to be filled by the Company for its reasonable approval until the Company approves that such Replacement may serve, in the case of clause (b), as a designee for appointment as director, or in the case of clause (c), to serve as a director, at which time such person is appointed as the Fund Replacement. The Company agrees that upon being requested to approve a proposed Replacement, it shall grant or withhold its reasonable approval as promptly as practicable; and (e) that it shall not file or at commence any Legal Proceeding (as defined below) to contest the Fund's written election, by an Additional Investor)validity of this Section 1 or to seek a release from the obligations contained in this Section 1.

Board Representation. (a) The Company Each Stockholder agrees that so long as this Agreement remains in effect, such Stockholder shall promptly cause two vacancies vote all shares owned or controlled by such Stockholder, directly or indirectly, to be created on its Board of Directors (by increasing the number of members of the Board of Directors or otherwise) elect and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines maintain in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election.office: (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the CompanyCompany consisting of eleven (11) members; (ii) one (1) director (the “TCV Designee”) elected by the holders of the Series E Preferred, and to designate one person who shall be entitled designated from time to attend time in writing by TCV or its assigns; (iii) one (1) director (the “NEA Designee”) elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, who shall be designated from time to time in writing by NEA or its assigns; (iv) two (2) directors (the “Common Designees”) elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, both of whom shall be designated by the Common Stockholders; provided, however, one of whom shall be the Company’s Chief Executive Officer as designated by the Board from time to time; (v) two (2) directors (the “Series H Designees”) elected by the holders of the Series H Preferred, who shall be designated from time to time in writing by the holders of a majority of the outstanding shares of the Series H Preferred; (vi) three (3) independent directors (the “Designated Independent Nominees”) elected by the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a single class and calculated on an as-converted to Common Stock basis, one of whom shall be designated from time to time in writing by TCV, and the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all meetings shares owned or controlled by such Stockholders in favor of such nominee (the “TCV Independent Nominee”), one of whom shall be designated from time to time in writing by NEA, and the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all shares owned or controlled by such Stockholders in favor of such nominee (the “NEA Independent Nominee”) and one of whom shall be designated from time to time in writing by the Common Designees, and the holders of the Common Stock, Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred shall vote all shares owned or controlled by such Stockholders in favor of such nominee (the “Common Independent Nominee”); provided, that each Designated Independent Nominee shall be “independent” as such term is construed in Section 10A(m)(3)(B) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, unless a majority of the Board of Directors and committees thereof and votes to receive minutes of all such meetings upon preparation thereof.waive this provision with respect to any particular Designated Independent Nominee; and (cvii) In two (2) independent directors (each, a “Board Independent Nominee”) elected by the event any designee holders of the Fund (or at the Fund's written electionCommon Stock, by an Additional Investor) shall cease to serve Series I Preferred, Series H Preferred, Series G Preferred, Series F Preferred, Series E Preferred and Series D1 Preferred, voting together as a director for any reasonsingle class and calculated on an as-converted to Common Stock basis, other than each of whom shall be designated from time to time in writing by reason a majority of the Fund not being entitled to designate a designee other eight directors; provided, that each Board Independent Nominee shall be “independent” as provided such term is construed in Section 8.10(a10A(m)(3)(B) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, unless at least five (or at 5) of the Fund's written election, by an Additional Investor)other directors vote to waive this provision with respect to any particular Board Independent Nominee.

Board Representation. (a) The Company Within 15 business days after the execution of this Agreement, the Investors shall promptly cause two vacancies to be created on its notify the Board in writing of Directors the names of five individuals (by increasing the number of which may include one or more members of senior management of the Company) that the Investors designate as the individuals who shall be appointed to the Board immediately after the Closing (it being understood that YAAF and YAAF Parallel each shall have the right to designate one such person, and that Investors collectively shall designate the other three such persons). Prior to the mailing to Company Stockholders of Directors or otherwisethe Proxy Statement, the Investors shall have the right to revise their list of five individuals, and the individuals so designated (the “Investor Director Designees”) shall be disclosed in the Proxy Statement, and at such individuals shall consent to serve if appointed. The Board shall have the Initial Closing shall cause two persons right to consent to the Investor Director Designees designated by the Fund (unlessInvestors prior to the Closing, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is which consent shall not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such electionunreasonably withheld. (b) Commencing with such next succeeding annual meeting Within 15 business days after execution of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund Board shall be entitled notify the Investors in writing of the names of up to designate two six individuals who are independent directors to of the Company's Company as of the date of this Agreement and who the Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long designates as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled directors who intend to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election remain as directors, and the Company shall use its reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors following the Closing. Prior to the mailing to the Company Stockholders of the CompanyProxy Statement, the Board shall have the right to revise or supplement its list of up to six individuals, and to designate one person who the individuals so designated (the “Continuing Independent Directors”) shall be entitled disclosed in the Proxy Statement, and such individuals shall consent to attend all meetings of continue to serve as directors following the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofClosing. (c) In the event that, at any designee time prior to the mailing to the Company Stockholders of the Fund (or at Proxy Statement, the Fund's written electionnumber of named Continuing Independent Directors shall be less than six, by an Additional Investorthe Board and the Nominating Committee of the Board shall use all reasonable efforts to recruit additional individuals who meet the requirements of Section 2.01(a)(ii) of the Stockholders Agreement and who shall cease consent to serve as a director for any reason, other than by reason independent directors of the Fund Company after the Closing (the “New Independent Directors”), provided, however, that immediately prior to the Closing, the aggregate number of named Continuing Independent Directors and New Independent Directors may be either less than or equal to six. The Investors shall have the right to consent to the New Independent Directors designated by the Board prior to the Closing, which consent shall not being entitled be unreasonably withheld. (d) Immediately prior to designate a designee as provided in Section 8.10(a) or 8.10(b)the Closing, the Company and the Board shall use its reasonable best efforts take all actions necessary to (i) increase the authorized number of directors to eleven, (ii) cause the vacancy resulting thereby to be filled by a designee those directors of the Fund Company who are not Continuing Independent Directors to resign from the Board, and (or at iii) effective as the Fund's written electionClosing, by an Additional Investor)appoint the Investor Director Designees and the New Independent Directors as directors of the Company.

Board Representation. (a) The For so long as the Purchaser either (i) beneficially owns at least 7% of the Common Stock on a fully diluted basis or (ii) holds at least half of the Series B Preferred Stock purchased under this Agreement (or securities issued on the conversion of either such Series B Preferred Stock or securities into which such Series B Preferred Stock converted), the Company shall promptly cause two vacancies to be created on nominate and recommend that its Board stockholders elect one director designated by the Purchaser (the “Purchaser Designee”). The Purchaser Designee shall receive notice of Directors (by increasing the number all meetings of members any committee of the Board of Directors or otherwise) and at the Initial Closing same time and in the same manner as the members of such committees of the Board, have full rights to attend all meetings thereof (whether such meetings are formal or informal, are convened in person, telephonically, or by any other telecommunication means), and the Company shall cause two persons provide the Purchaser Designee all materials distributed to any committee of the Board and all other information related to the Company which is made available to, or which would otherwise be available upon reasonable request by, the committee members thereof. Any vacancy in the position of the Purchaser Designee shall only be filled with another designee designated by the Fund (unless, after customary investigation Purchaser in accordance with the terms hereof. Any vacancy created by any removal of such persons' qualificationsthe Purchaser Designee shall also only be filled at the direction of the Purchaser. Notwithstanding anything to the contrary contained in this Section 5.08, the Purchaser shall have no right to nominate a Purchaser Designee to the Board of Directors reasonably determines in good faith that either or both of pursuant to this Section if at such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall time the Holders of the Preferred Stock collectively designate more than two persons are entitled to serve on elect a director to the Board pursuant to the Certificate of DirectorsDesignation or otherwise. Such designees shall serve until the next succeeding annual meeting of stockholders The right of the Company Purchaser to nominate a Purchaser Designee as provided in this Section 5.08(a) shall not be held after such electionassignable by the Purchaser. (b) Commencing with such next succeeding annual meeting The Company and the Purchaser shall take or cause to be taken all lawful action necessary to ensure at all times as of stockholders and following the Closing Date that the organizational documents of the Company referred to in Section 8.10(a), (i) so long as are not inconsistent with the Fund holds 50% provisions of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directors, Agreement and the Company shall use its reasonable best efforts to cause other Operative Documents or the election of such designees, including voting all shares for which the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) transactions contemplated hereby or is otherwise entitled to vote, in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofthereby. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. Subject to applicable law in each instance: -------------------- (a) The Company Upon the closing of the Public Financing, BBS shall promptly cause two vacancies to be created on its Board of Directors (by increasing immediately expand the number of members size of the Board of Directors or otherwise) to nine directors and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, appoint to the Board of Directors reasonably determines (subject to the majority vote of the remaining directors, which BBS shall solicit and use its best efforts to obtain, in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected accordance with BBS' by-laws), to fill such vacancies. One of the persons vacancy, one individual designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons Enterprises to serve on the Board of Directors. Such designees shall The director designated by Enterprises shall, upon his/her appointment, continue to serve as a director until the next succeeding annual meeting election of stockholders of the Company to be held after such electiondirectors. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so As long as the Fund holds 50% Enterprises continues to own a number of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion (adjusted for stock splits and similar occurrences) that is greater than fifty percent (50%) of the Preferred aggregate of the number of Upfront Shares plus the number of shares of Common Stock purchased by Enterprises (whether or not such shares have been convertedfrom time-to-time) acquired by it under this Agreementupon exercises of the Warrants, the Fund Enterprises shall be entitled to designate one director individual to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor be nominated to replace any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, including voting all shares for which the Company holds proxies (unless otherwise directed BBS. Any individual so designated by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person Enterprises pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b2.7(b) and is referred to herein as the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof"Designee." (c) During the period provided in Section 2.7(b) above, BBS shall nominate the Designee for election as a director as part of the management slate that is included in the proxy statement (or consent solicitation or similar document) of BBS relating to the election of directors, and shall provide the same support for the election of each such Designee as it provides to other persons standing for election as directors of BBS as part of BBS' management slate. (d) In the event that any designee of the Fund (or at the Fund's written election, by an Additional Investor) Designee shall cease to serve as a director for any reason, reason (other than by reason the failure of the Fund not being entitled stockholders of BBS to designate a designee elect such person as provided in Section 8.10(a) or 8.10(bdirector), the Company vacancy resulting therefrom shall be filled by (subject to the majority vote of the remaining directors, which BBS shall solicit and use its reasonable best efforts to cause obtain, in accordance with BBS' by-laws) an individual designated by Enterprises in accordance with Section 2.7(b) above. (e) BBS will reimburse each Designee that serves as a director for all reasonable costs and expenses (including travel expenses) incurred in connection with such director's attendance at meetings of the vacancy resulting thereby Board of Directors or any committee of the Board of Directors upon which such director serves, in accordance with BBS' policies regarding reimbursement of director expenses. BBS shall indemnify and advance expenses to each such director to the same extent it indemnifies and advances expenses to its other directors pursuant to its organizational documents and applicable law. (f) In each instance, the individual designated by Enterprises as its Designee (and the individual initially designated by Enterprises under Section 2.7(a) above) shall be filled an executive officer of Enterprises. (g) Following the Public Financing and through the period described in Section 2.7(b), Enterprises shall have the right to have its designee participate in all meetings of the Board of Directors of BBS in an advisory capacity ("Advisory Designee"). The provisions of Section 2.7(f) shall apply with respect to the selection of such Advisory Designee and the provisions of Section 2.7(e) above with regard to reimbursement of expenses shall also apply to such Advisory Designee. Notwithstanding the foregoing, however (i) Enterprises rights under this Section 2.7(g) shall not apply at any time during which an individual designated by Enterprises (under Section 2.7(a) above or as a Designee, as applicable) is a duly appointed/elected member of the Board of Directors of BBS and (ii) it is understood by the Parties that the provisions of this Section 2.7(g) are intended to provide a "back-up" mechanism to ensure that Enterprise will have the ability to have a designee participate in meetings of the Board of Directors of BBS in the event that, despite the best efforts of BBS, the Parties are unsuccessful in having a designee of the Fund (or at the Fund's written election, by an Additional Investor)Enterprises appointed to Board of Directors of BBS.

Board Representation. Until the date on which less than twenty five percent (a25%) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing the number of members Series B Preferred Stock remain outstanding or the Investors hold less than fifteen percent (15%) of the Board Company's then outstanding capital stock (not including any capital stock issuable upon exercise of Directors outstanding options or otherwisewarrants of the Company) (the "THRESHOLD DATE"), the Investors agree to vote or act with respect to their shares of Series B Preferred Stock so as to elect as a Series B Director an individual designated by JAFCO America Ventures, Inc. (or its affiliates) (the "JAFCO ENTITIES"), the designee of which shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Until the Threshold Date, the Investors agree to vote or act with respect to their shares so as to elect as a Series B Director an individual designated by Doll Capital Management (the "DOLL CAPITAL ENTITIES"), the designee of which shall be ▇▇▇▇▇ ▇▇▇▇. From and at after the Initial Closing shall cause two persons Threshold Date, the Investors agree to vote or act with respect to their shares of Series B Preferred Stock so as to elect as a Series B Director, an individual designated by the Fund (unless, after customary investigation JAFCO Entities. During the term of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled Founders agree to designate two directors vote or act with respect to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the their shares of Common Stock issued so as to elect the Company's then-current Chief Executive Officer as a Common Director; PROVIDED, HOWEVER, that until such time as a Chief Executive Officer is appointed, the Founders agree to vote or issuable upon conversion act with respect to their shares of Common Stock so as to elect ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ as a Common Director. During the Preferred Shares (whether or not such shares have been converted) acquired by it under term of this Agreement, the Fund Founders agree to vote or act with respect to their shares of Common Stock so as to elect a designee of the holders of a majority of the outstanding shares of Common Stock as a Common Director, the designee of which shall be entitled ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Racotek, as the sole holder of Series A Preferred Stock, agrees to designate one director elect ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as the Series A Director. During the term of this Agreement, the parties to this Agreement agree to vote or act with respect to their shares so as to elect as the Independent Directors individuals with relevant experience in the Company's industry, which persons shall be unanimously designated by the Company's Board of Directors, and, in either case, at relevant future annual meetings one of the stockholders of the Company, a successor to replace any such director upon expiration of his or her termwhich shall initially be ▇▇▇ ▇▇▇▇▇. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 reasonable best efforts to cause the election of such designees, 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 person. Notwithstanding the foregoingHowever, if the Fund has not designated JAFCO Entities, the Doll Capital Entities, the Founders or Racotek designate a person pursuant to Section 8.10(a)serve as a director other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or if ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, as the Fund is entitled case may be, then the person so designated shall be subject to designate the reasonable approval of a majority of the directors of the Company then serving in such capacity, which directors shall not include the director or directors to the Company's Board of Directors by virtue of the first sentence Company that is, or was, serving as the previous designee of this Section 8.10(b) and the Fund does not designate at least one director to JAFCO Entities, the Doll Capital Entities, the Founders or Racotek on the Company's Board of Directors, as the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors of the Company, and to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofcase may be. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing From and after the number of members Closing until Purchasers and/or their Affiliates no longer hold at least 10% of the Board of Directors or otherwiseoutstanding Common Stock, Purchasers shall have the right to designate one (1) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One member of the persons designated by Board; from and after the Fund may, Closing until Purchasers and/or their Affiliates no longer hold at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders least 15% of the Company outstanding Common Stock, Purchasers shall have the right to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders designate a second member of the Company referred Board; from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 20% of the outstanding Common Stock, Purchasers shall have the right to in Section 8.10(a)designate a third member of the Board; from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 40% of the outstanding Common Stock, (i) so long as Purchasers shall have the Fund holds right to designate a fourth member of the Board; and from and after the Closing until Purchasers and/or their Affiliates no longer hold at least 50% of the shares of Preferred Stock or outstanding Common Stock issued or issuable upon conversion Stock, Purchasers shall have the right to designate a fifth member of the Preferred Shares Board (whether or not the Preferred Shares have been converted) acquired by it under this Agreementcollectively, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders of the Company, a successor to replace any such director upon expiration of his or her term"INVESTOR DIRECTORS"). The Company shall recommend the election of the Investor Directors at each meeting of shareholders where the election of directors is considered and shall use its best efforts to cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Investor Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board elected and re-elected to the Board. Purchasers shall have the right to remove or replace any of the Investor Directors by giving notice to such Investor Director and the Company's stockholders for election as directors, and the Company shall use its reasonable best efforts to cause effect the election removal or replacement of any such designeesInvestor Director. Unless prohibited by applicable law, including voting all shares for which Investors shall have the right to have two Investor Directors, as determined by Purchasers, be members of each committee of the Board, and the Company holds proxies (unless otherwise directed by the stockholder submitting shall use its best efforts to appoint and maintain such proxy) or is otherwise entitled to vote, in favor Investor Directors on each committee of the election Board, as requested by Purchasers. Any Investor Director who is not a member of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members committee of the Board of Directors of shall have the Company, and to designate one person who shall be entitled right to attend all meetings of such committee as a non-voting observer. (b) Subject to any limitations imposed by applicable law, the Board Investor Directors shall be entitled to the same perquisites, including stock options, reimbursement of Directors expenses and committees thereof and to receive minutes other similar rights in connection with such person's membership on the Board, as every other non-employee member of all such meetings upon preparation thereofthe Board. (c) In At the event any designee Closing, unless otherwise approved by the Company and Purchasers, the authorized number of members of the Fund Board shall be nine (or 9). From and after the Closing until Purchasers and their Affiliates no longer own at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason least 15% of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b)outstanding Common Stock, the Company Board shall use its reasonable best efforts to cause include the vacancy resulting thereby to Company's Chief Executive Officer and the remaining directors shall be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor)independent directors not affiliated with management.

Board Representation. (a) On or prior to the Closing Date, the Board of Directors of the Company shall be expanded by two positions, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ shall be appointed to fill the vacancies created by such expansion with ▇▇. ▇▇▇▇▇ designated as a Class I director and ▇▇. ▇▇▇▇▇▇ designated as a Class III director. Thereafter, for so long as Purchasers and the Permitted Transferees own, in the aggregate, at least the Required Interest, Purchasers shall be entitled to designate an aggregate of two directors on the management slate of nominees to the Company's Board of Directors (the "Purchaser Designees") (with MSP having the right to designate one director and MSREF III having the right to designate one director) except the foregoing number of directors shall be reduced to the extent one or more Purchaser Designees have been elected to and are serving on the Board of Directors and are in a class of directors not currently standing for re- election. In the event that the aggregate interest owned by Purchasers and the Permitted Transferees shall be less than the Required Interest but equal to or greater than the Minimum Interest and Purchasers currently have two Purchaser Designees serving on the Board of Directors, then Purchasers shall cause one of the two Purchaser Designees to resign within 10 Business Days, the Board of Directors shall be reduced by one member and thereafter MSP shall be entitled to designate one member on the management slate of nominees to the Company's Board of Directors (until such time as the aggregate interest owned by Purchasers and the Permitted Transferees shall be less than the Minimum Interest, whereupon Purchasers shall within 10 Business Days cause the remaining Purchaser Designee to resign and Purchasers shall have no further rights under this Section) except the foregoing shall not apply to the extent MSP's Purchaser Designee has been elected to and is serving on the Board of Directors and is in a class of directors not currently standing for re-election. At least 90 days prior to each annual meeting of shareholders at which a Purchaser Designee will stand for election, MSREF III and MSP, as the case may be, shall provide written notice to the Company indicating the Purchaser Designee to be nominated by each such 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) The Company shall promptly cause two vacancies use its reasonable best efforts at all times to be created on its take such action as is necessary to ensure that the nominating committee of the Board of Directors (or the full Board if there is no nominating committee) of the Company shall nominate and recommend to the shareholders of the Company and the shareholders of the Company shall elect the Purchaser Designees 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 shareholders by increasing the Board of Directors pursuant to Section 4.10(a), the nominating committee of the Board (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 character and fitness to serve as a director. If the nominating committee (or the full Board if there is no nominating committee) determines in good faith that any such Purchaser Designee lacks the character or fitness to serve as a director based on applicable legal and reasonable commercial standards, the nominating committee (or the full Board if there is no nominating committee) shall inform the Purchaser who nominated such Purchaser Designee of such determination, and such Purchaser shall then have the right to propose an alternative Purchaser Designee who is reasonably acceptable to the Company. All Purchaser Designees elected to the Board of Directors shall receive, during the period in which they serve, any and all benefits (including, without limitation, any director compensation and grants of stock options under the 1998 Non-Employee Director Plan) provided to the other members of the Board of Directors of the Company. (c) If at any time Purchasers and the Permitted Transferees are entitled to designate one or more nominees to the Board of Directors pursuant to this Section 4.10 and Purchasers do not have a representative on the Board, so long as Purchasers and the Permitted Transferees own, in the aggregate, at least the Minimum Interest, the Company shall permit two representatives (or in the case that Purchasers are entitled to designate only one nominee to the Board, only one representative) of Purchasers (which representatives shall be acceptable to the Company in its reasonable discretion) to attend, but not vote, as observers at each meeting of the Board of Directors or any committee of the Board empowered to act with full authority of the entire Board, including telephonic meetings, provided that each such representative executes and delivers to the Company a confidentiality agreement in a form reasonably satisfactory to the Company prior to attendance at any such meetings. The Company shall cause notice of any meeting of the Board of Directors or any such committee of the Board to be delivered to any such representatives at the same time and in the same manner as notice is given to the members of the Board of Directors. Such representatives will be entitled to receive all written materials given to the members of the Board of Directors in connection with such meetings at the time such materials and information are given to the Board of Directors. The Company shall reimburse such representatives for his or her reasonable out- of-pocket expenses incurred in connection with attending meetings of the Board of Directors or any such committee of the Board. (d) For so long as any Purchaser or Permitted Transferee has the right to designate at least one director on a management slate of nominees to the Company's Board of Directors, the Company shall use reasonable best efforts to cause the Board of Directors and the shareholders of the Company not to increase the number of members of the Board of Directors above nine without the prior written consent of each Purchaser and Permitted Transferee (unless such increase is required to comply with Applicable Law), which consent may be withheld in each Purchaser's and Permitted Transferee's reasonable discretion. In the event of a vacancy (either by death, removal or otherwiseresignation) and at of a director other than a Purchaser Designee which does not cause the Initial Closing total number of directors to be less than seven, the Company shall use reasonable best efforts to cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected appoint a replacement to fill such vacancies. One vacancy without the prior written consent of each Purchaser and Permitted Transferee (unless required to comply with Applicable Law and the Company's bylaws), which consent may be withheld in each Purchaser's and Permitted Transferee's reasonable discretion. (e) Each Purchaser Designee shall be entitled to serve on any standing committee of the persons designated by Board except to the Fund mayextent the Purchaser Designee's participation would cause the Purchaser Designees' participation on such committee to exceed their proportionate representation on the full Board, provided, however, that at least one Purchaser Designee may serve on each standing committee selected in accordance with this subsection (e). Subject to the preceding sentence, MSREF III and MSP shall each have the right to select the committees of the Board on which its Purchaser Designee will serve. The Company shall use its reasonable best efforts at all times as is necessary to ensure that each Purchaser Designee is appointed to all such committees of the Board of Directors. (f) For so long as Purchasers and the Permitted Transferees own, in the aggregate, at least the Fund's written election, be designated by an Additional Investor, but in no case shall Minimum Interest and the Holders of Preferred Stock collectively designate more than two persons to serve Purchaser Designees are serving on the Board of Directors. Such designees , Purchasers shall, and shall serve until cause the next succeeding annual meeting Permitted Transferees, to vote all of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the their shares of Common Stock issued at any regular or issuable upon conversion special meeting of the Preferred Shares shareholders of the Company (whether or not and any adjournments thereof) called for the purpose of electing directors to the Board, or, to the extent permitted by the Company's Restated Articles of Organization and Amended and Restated Bylaws and by Applicable Law, in any written consent executed in lieu of such shares have been converteda meeting of shareholders, for election of the management slate of nominees (other than the Purchaser Designees) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, . The Purchasers shall and shall cause the Permitted Transferees to vote all of their shares of Common Stock at relevant future annual meetings any regular or special meeting of the stockholders shareholders of the CompanyCompany (and any adjournments thereof) called for the purpose of approving the issuance of the shares under this Agreement in favor of such issuance and the transactions contemplated by this Agreement. (g) Subject to availability on reasonable terms and at a reasonable cost, a successor to replace for so long as any such director upon expiration of his or her term. The Company shall cause such designees (unless, after customary investigation of any such person's qualifications, Purchaser Designee remains on the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directorsDirectors, and the Company shall use its reasonable best efforts to cause the election maintain directors' and officers' liability insurance with financially sound and reputable insurers at a level of such designees, including voting all shares for which the Company holds proxies coverage of at least $10,000,000. (unless otherwise directed by the stockholder submitting such proxyh) or It is otherwise entitled to vote, in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to understood and agreed that the Company's Board of Directors by virtue of the first sentence of this Section 8.10(b) is subject to fiduciary duties under Applicable Law, and the Fund does not designate at least one director to that the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed shareholders have rights with respect to the members composition of the Board of Directors under Applicable Law and the Company's Amended and Restated Bylaws. Accordingly, for purposes of this Section 4.10, all obligations of the CompanyCompany under paragraphs (a), (b), (d) and to designate one person who (e) hereof shall be entitled deemed to attend all meetings of be "to use reasonable best efforts" to cause the intended action to be taken, recognizing that the Company cannot guaranty what action its Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofor stockholders may take in the future. (c) In the event any designee of the Fund (or at the Fund's written election, by an Additional Investor) shall cease to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby to be filled by a designee of the Fund (or at the Fund's written election, by an Additional Investor).

Board Representation. (a) The Company shall promptly cause two vacancies to be created on its Board of Directors (by increasing From and after the Closing, until such time as the Purchaser Parties collectively no longer Beneficially Own a number of members shares of the Board of Directors or otherwise) and at the Initial Closing shall cause two persons designated by the Fund (unless, after customary investigation of such persons' qualifications, the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally Purchased Shares equal to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. (b) Commencing with such next succeeding annual meeting of stockholders of the Company referred to in Section 8.10(a), (i) so long as the Fund holds 50% at least ten percent (10%) of the outstanding shares of Preferred Stock or Common Stock, determined on an As-Converted Common Stock issued or issuable upon conversion basis (provided, that, for purposes of calculating the Preferred Shares (whether or percentage As-Converted Common Stock ownership for this Section 4.8, any Exempted Securities shall be excluded and deemed not the Preferred Shares have been converted) acquired by it under this Agreementoutstanding), the Fund Purchaser shall be entitled to designate two directors (2) persons, who shall be Partners, Managing Directors, Advisors or Principals of the Purchaser, CD&R or any CD&R Affiliate and reasonably acceptable to the Company at the time of such designation, to serve on the Company Board (such individuals who are so reasonably acceptable to the Company's Board of Directors (one of whom at , the Fund's written election may be designated by an Additional Investor“Purchaser Designees” and each a “Purchaser Designee”) or and (ii) so long as at least five percent (5%) (but less than the Fund holds 2510% contemplated in the foregoing clause (i)) of the outstanding shares of Common Stock, determined on an As-Converted Common Stock basis (provided, that, for purposes of calculating the percentage As-Converted Common Stock ownership for this Section 4.8, any shares issued or issuable upon conversion pursuant to clauses (1), (2) and (5) of the Preferred Shares (whether or definition of Exempted Security shall be excluded and deemed not such shares have been converted) acquired by it under this Agreementoutstanding), the Fund Purchaser shall be entitled to designate one director (1) Purchaser Designee. At such time that the Purchaser is no longer entitled to designate one or both Purchaser Designees pursuant to the previous sentence, the Purchaser shall promptly cause one or both Purchaser Designees, as applicable, to offer to resign from the Company Board. The Purchaser Designees shall initially be those persons named on Schedule 4.8(a)(ii) of this Agreement (the “Initial Purchaser Designees”), each of whom has been determined to be reasonably acceptable to the Company's . A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Agreement for the remainder of such person’s term on the Company Board of Directorsor, andif earlier, in either case, death or resignation. The Company’s obligations to have any Purchaser Designee appointed to the Company Board or nominate any Purchaser Designee for election as a director at relevant future annual meetings any meeting of the Company’s stockholders pursuant to this Section 4.8, as applicable, shall in each case be subject to such Purchaser Designee’s satisfaction of all requirements regarding service as a director of the Company under applicable Law, stock exchange rules regarding service as a director of the Company, a successor and the Company’s corporate governance or other guidelines and director onboarding and membership requirements, in each case, that are generally applicable to replace any such director upon expiration of his or her termall directors. The Purchaser Parties will cause each Purchaser Designee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations and provide such information as the Company shall cause such designees (unless, after customary investigation Board may reasonably request to determine the Purchaser’s Designee’s eligibility and qualification to serve as a director of any such person's qualifications, the Company Board and otherwise comply with the corporate governance or other guidelines and director onboarding and membership requirements of Directors reasonably determines in good faith the Company that such person is not qualified or acceptable under standards applied fairly and equally are generally applicable to all nomineesdirectors thereof. (b) From and after the Closing, subject to be included in the slate of nominees recommended by the Board to the Company's stockholders for election as directorsSection 4.7(a), and the Company shall use its reasonable best efforts take such actions as are reasonably necessary to cause the election Purchaser Designees to be nominated as members of such designees, including voting all shares for which the Company holds proxies (unless otherwise directed Board and shall, subject to applicable Law and the exercise of the fiduciary duties of the Company Board, include in any proxy statement prepared, used, delivered or publicly filed by the stockholder submitting such proxy) or is otherwise entitled Company to vote, solicit the vote of its stockholders in connection with any meeting of Company stockholders the recommendation of the Company Board that stockholders of the Company vote in favor of the Purchaser Designees and solicit votes in favor of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant Purchaser Designees to Section 8.10(a), or if the Fund is entitled to designate a director or directors to Company Board consistent with the Company's Board of Directors by virtue ’s efforts to solicit votes in favor of the first sentence of this Section 8.10(b) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund shall be entitled to receive all notices and materials distributed to the members of the Board of Directors election of the Company, and ’s other nominees to designate one person who shall be entitled to attend all meetings of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereofCompany Board. (c) In The Company, the Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms and which shall provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Company Board to representatives of the Purchaser Parties on the terms and subject to reasonable conditions and limitations set forth therein. (d) For so long as a CD&R Person or Purchaser Designee is serving on the Company Board, (i) the Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and preclearance or notification to the Company of any trades in the Company’s securities) or similar guideline or policy with respect to the trading of securities of the Company that applies to any Purchaser Party (including a policy that limits, prohibits or restricts any Purchaser Party from entering into any hedging or derivative arrangements), in each case other than with respect to any CD&R Person or Purchaser Designee solely in his or her individual capacity, except as provided herein, (ii) any share ownership requirement for any Purchaser Designee serving on the Board of Directors will be deemed satisfied by the securities owned by any Purchaser Party and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on any Purchaser Party’s transfers of securities pursuant to the Registration Rights Agreement or otherwise, subject to compliance with applicable securities Laws, (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Company Board be violated by any Purchaser Designee receiving compensation from any Purchaser Party and (iv) no Purchaser Designee shall be excluded or required to recuse himself or herself from any meetings or materials of the Company Board as a result of or in connection with his or her affiliation with the CD&R Group or the CD&R Group’s ownership of any Preferred Stock or Common Stock except in connection with a transaction with, or dispute involving, the Purchaser or any other member of the CD&R Group, and, in each case of the foregoing clauses (i), (ii), (iii) and (iv), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.8 shall not apply to the extent inconsistent with this Section 4.8 (but shall otherwise be applicable to the Purchaser Designee). (e) To the fullest extent permitted by the DGCL and subject to any express agreement that may from time to time be in effect, including the confidentiality provisions set forth in this Agreement, to the extent in compliance with applicable Law, the Company agrees that any Purchaser Designee, CD&R Person, CD&R Group and any CD&R Affiliate or any portfolio company thereof (collectively, “Covered Persons”) may, and none of the foregoing shall have any duty not to, (i) invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equityholder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its Subsidiaries, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the DGCL, to the extent in compliance with applicable Law, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person. Except as set forth below, the Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or its Subsidiaries, the Covered Person shall not have any designee duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by the DGCL, the Company hereby renounces any interest or expectancy in any potential transaction or matter of which the Fund (Covered Person acquires knowledge and waives any claim against each Covered Person that such Covered Person is liable to the Company or at the Fund's written election, by an Additional Investor) shall cease to serve as a director its stockholders for breach of any reason, other than fiduciary duty solely by reason of the Fund fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not communicate information regarding such corporate opportunity to the Company, in each case, except for any corporate opportunity which is expressly offered to a Covered Person in his or her capacity as a member of the Company Board, it being entitled understood that any such corporate opportunity shall belong to designate a designee the Company (f) Purchaser and the Company agree that, effective as provided in Section 8.10(a) or 8.10(b)of the Closing, the Company shall use its reasonable best efforts to cause provisions set forth in this Section 4.8 and any related definitions will be replicated and set forth in the vacancy resulting thereby to be filled by a designee Certificate of the Fund (or at the Fund's written election, by an Additional Investor)Designations.

Board Representation. (a) The Effective on the day after the Note Closing Date, the Company shall promptly cause two vacancies to be created on its Board of Directors increase by one (by increasing 1) the number of members of the Board of Directors or otherwise) of the Company and at the Initial Closing shall cause two persons elect and appoint a representative of Purchaser designated by Purchaser and reasonably acceptable to the Fund Company (unlessthe "PURCHASER REPRESENTATIVE") to such newly created directorship. The Company and Purchaser agree that ▇▇▇▇▇▇▇ will be the initial Purchaser Representative. From and after the election of Purchaser Representative as a Director of the Company, after customary investigation and for as long 25 as Purchaser Representative shall remain a Director of such persons' qualificationsthe Company pursuant to this Section 5.3, Purchaser Representative shall be entitled to serve as a member of any executive committee of the Board of Directors reasonably determines in good faith that either or both of such persons is not qualified or acceptable under standards applied fairly and equally to all nominees) to be selected to fill such vacancies. One of the persons designated by the Fund may, at the Fund's written election, be designated by an Additional Investor, but in no case shall the Holders of Preferred Stock collectively designate more than two persons to serve on the Board of Directors. Such designees shall serve until the next succeeding annual meeting of stockholders of the Company to be held after such election. and any other committee or body performing the functions of an executive committee (b) Commencing with such next succeeding annual meeting the "EXECUTIVE COMMITTEE"). As long as Purchaser beneficially owns not less than 850,000 shares of stockholders of Common Stock (as adjusted for the Company referred to events described in Section 8.10(a1.3 in a manner consistent therewith), (i) so long as the Fund holds 50% of the shares of Preferred Stock or Common Stock issued or issuable upon conversion of the Preferred Shares (whether or not the Preferred Shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate two directors to the Company's Board of Directors (one of whom at the Fund's written election may be designated by an Additional Investor) or (ii) so long as the Fund holds 25% of the shares of Common Stock issued or issuable upon conversion of Company shall nominate and recommend the Preferred Shares (whether or not such shares have been converted) acquired by it under this Agreement, the Fund shall be entitled to designate one director to the Company's Board of Directors, and, in either case, at relevant future annual meetings of the stockholders Purchaser Representative for election as a Director of the Company, a successor to replace any such director upon expiration of his or her term. The Company and shall cause such designees (unless, after customary investigation of any such person's qualifications, the Board of Directors reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees) 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 otherwise use its reasonable best efforts to cause the election of such designees, including voting all shares for which Purchaser Representative as a Director of the Company holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor at each meeting of the election of such person. Notwithstanding the foregoing, if the Fund has not designated a person pursuant to Section 8.10(a), or if the Fund is entitled to designate a director or directors to the Company's Board of Directors by virtue of shareholders at which the first sentence of this Section 8.10(bPurchaser Representative's term as a Director would otherwise expire, and (ii) and the Fund does not designate at least one director to the Company's Board of Directors, the Fund Purchaser shall be entitled to designate one individual who shall receive notice of all meetings of the Board of Directors and the Executive Committee of the Company and who shall be entitled to attend and participate in all such meetings as an observer on behalf of Purchaser (the "OBSERVER"). Subject to Section 5.3(b), each Purchaser Representative shall be treated equally with the other Directors and the other members of the Executive Committee in their capacities as such and shall be entitled to the same information (including reports, financial statements, notices and materials distributed other information) at the same time (subject to the same general conflicts-of-interest rules applicable to all other members of the Board of Directors and Executive Committee of the Company, reasonably and consistently applied) and the same compensation and benefits, as shall be provided to other Directors of the Company and other members of the Executive Committee, and copies of all such information shall be provided or made available to the Observer at the same time such information is provided or made available to Purchaser and other Directors or Executive Committee members. (b) Notwithstanding any other provisions of this Agreement, the rights of the Purchaser Representative to serve as a Director and as a member of the Executive Committee, and the rights of the Observer to attend and participate in meetings of the Board of Directors and the Executive Committee, pursuant to Section 5.3(a) shall terminate upon the earlier of: (i) the Company's sale of all or substantially all of its assets, (ii) a merger, consolidation, share exchange, or other reorganization or business combination involving the Company in which shareholders of the Company immediately prior to such merger, consolidation, share exchange or other reorganization or business combination own less than fifty percent (50%) of the voting capital stock of the surviving or acquiring corporation or the resulting entity, or (iii) such time as Purchaser no longer owns 850,000 shares of Common Stock (as adjusted for the events described in Section 1.3 in a manner consistent therewith). At any time Purchaser is no longer entitled to Board representation pursuant to this Section 5.3, then at the request of the Company, the Purchaser Representative shall immediately resign and the Observer shall immediately cease attending any meetings of the Board of Directors and the Executive Committee. (c) In addition to any other indemnification and insurance rights the Purchaser Representative and the Observer may have, (i) each Purchaser Representative (A) shall have the same indemnification rights, as set forth in the Company's Restated Articles and Bylaws, as the other members of the Board of Directors of the Company, and the Company shall afford each Purchaser Representative an opportunity to designate one person who enter into an indemnification agreement substantially similar to the then effective indemnification agreement between the Company and the other members of the Board of Directors; and (B) shall be entitled covered by director and officer liability insurance to attend all meetings the same extent as other members of the Board of Directors and committees thereof and to receive minutes of all such meetings upon preparation thereof. (c) In the event any designee of the Fund Company, and (or ii) to the maximum extent applicable, each Observer (A) shall have analogous rights to indemnification from the Company which are substantially similar in scope to those of the Purchaser Representative and (B) shall be covered at the FundCompany's written election, expense by an Additional Investor) shall cease liability insurance comparable in scope to serve as a director for any reason, other than by reason of the Fund not being entitled to designate a designee as provided in Section 8.10(a) or 8.10(b), the Company shall use its reasonable best efforts to cause the vacancy resulting thereby insurance required to be filled by a designee of obtained for Purchaser Representative to the Fund (or extent such issuance is available on commercially reasonable terms at the Fund's written election, by an Additional Investor)commercially reasonable cost.