Common use of Board Representation Clause in Contracts

Board Representation. (a) (i) For so long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more of the Total Voting Power of the Corporation, subject to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors); provided, however, that in the event the Total Voting Power of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors).

Board Representation. At all times when the Stockholder's Voting Percentage is 10% or more: (a) (i) For so long as The Company and the Berkshire/Greenbriar Investors Beneficially Own 15% or more Stockholder shall use their reasonable best efforts to cause at least three of the Total Voting Power Directors to be considered “independent” under the rules of the Corporation, subject to Sections 16(d) and 17(a)(iv)SEC, the Corporation NYSE and any other or additional exchange on which the securities of the Company are listed, including for purposes of Rule 10A‑3 promulgated under the Exchange Act (or any successor rule thereto). (b) The Stockholder shall exercise all authority under applicable law have the right to cause any slate designate a number of directors presented individuals to stockholders be nominees for election to the Board (“Stockholder Designees”) equal to the Stockholder's Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, rounded to consist the nearest whole number (and in any event not less than one), and the Company and the Stockholder shall use their reasonable best efforts to cause such Stockholder Designees to be elected to the Board; provided that the number of such nominees thatDirectors who are Affiliated Directors shall not in any event exceed a number equal to the Stockholder's Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, if electedrounded to the nearest whole number greater than zero. If at any time the Stockholder's Voting Percentage is less than 10%, would result in the Stockholder shall promptly cause all of the Stockholder Designees then serving as Directors to resign from the Board, and the contractual rights of the Stockholder to designate one or more Stockholder Designees pursuant to this Article III shall forever terminate. (c) The Company shall cause any committee of the Board to include in its membership a number of Stockholder Designees then serving as Directors consisting equal to the Stockholder's Voting Percentage multiplied by the total number of two Berkshire/Greenbriar Directors members that such committee would have if there were no vacancies on such committee, rounded to the nearest whole number, except to the extent that such membership would violate the rules of the SEC, the NYSE and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors)any other or additional exchange on which the securities of the Company are listed, or any other applicable securities Laws; provided, however, that no committee may consist solely of Affiliated Directors. If at any time the number of Stockholder Designees then serving as Directors or as members of any committee of the Board exceeds the number of Stockholder Designees the Stockholder is entitled to designate to the Board or any committee thereof pursuant to this Article III, the Stockholder shall cause the number of Stockholder Designees then serving as Directors or as members of such committee of the Board representing such excess to resign immediately as Directors or committee members, as applicable. (d) Each Stockholder Designee shall not be prohibited or disqualified from serving as a Director pursuant to any rule or regulation of the SEC, the NYSE or any other or additional exchange on which securities of the Company are listed or by applicable Law. The Stockholder shall, and shall cause the Stockholder Designees to, timely provide the Company with accurate and complete information relating to the Stockholder and the Stockholder Designees that may be required to be disclosed by the Company under the Securities Act or the Exchange Act, including such information required to be furnished by the Company with respect to the Stockholder Designees in a proxy statement pursuant to Rule 14a‑101 promulgated under the Exchange Act, and the nationality of such Stockholder Designee. In addition, at the Company's request, the Stockholder shall cause the Stockholder Designees to complete and execute the Company's director and officer questionnaire prior to being elected to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by the Company. (e) With respect to each meeting of stockholders of the Company at which Directors are to be elected, the Company shall provide the Stockholder with notice of such meeting not less than 120 days prior to the date thereof, and the Stockholder shall provide the Company with written notice of the names (together with all other information requested by the Company pursuant to Section 3.1(d)) of the Stockholder Designees to be nominated for election at such meeting not more than 30 days following the delivery of such notice. If the Stockholder shall fail to timely provide the Company with the names of that number of Stockholder Designees equal to the number of Stockholder Designees the Stockholder is entitled to designate pursuant to this Article III, the Nominating Committee of the Board may select alternative nominees for such positions. If any Stockholder Designee is not qualified, available or eligible to stand for election, then the Stockholder may name an acceptable and available replacement Stockholder Designee and any such Stockholder Designee will be included as a nominee for election at such meeting if written notice of the name of such Stockholder Designee is provided to the Company within a reasonable period of time prior to the mailing of the proxy statement for such meeting. The Company shall cause the Stockholder Designees to be included in the slate of Directors approved and recommended by the Board for election at such meeting and shall use its reasonable best efforts to cause the election of each such Stockholder Designee, including soliciting proxies in favor of the election of such Stockholder Designees at such meeting. (f) In the event the Total Voting Power size of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors Board is increased at any time is below 15% and as a result of such increase, the Stockholder shall be entitled to designate one or more additional Stockholder Designees based upon the increased size of the Total Board and its then Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors Percentage pursuant to this Section 17(a)(i); provided3.1, further(i) the Stockholder shall be entitled promptly to designate such Stockholder Designees, that if and (ii) the Berkshire/Greenbriar Investors, directly Company shall cause the prompt appointment or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent DirectorsStockholder Designee(s) as Director(s). (g) Upon the resignation, retirement, death or other removal (with or without cause) from office of any Stockholder Designee serving as a Director at a time when the Stockholder has the right under this Section 3.1 to designate a replacement Stockholder Designee, (i) the Stockholder shall be entitled promptly to designate a replacement Stockholder Designee and (ii) the Company shall cause the prompt appointment or election of such replacement Stockholder Designee as a Director.

Board Representation. (a) (i) For On or prior to the Closing Date, the Board of Directors of the Company and the Audit Committee of the Board of Directors shall each be expanded by one position, and Doug▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ll be appointed to fill the vacancies created by such expansion. Thereafter, for so long as Purchaser and the Berkshire/Greenbriar Investors Beneficially Own 15% Permitted Transferees own, in the aggregate, at least the Minimum Interest, Purchaser shall be entitled to designate one director on the management slate of nominees to the Company's Board of Directors (the "Purchaser Designee"). In the event that the number of directors comprising the Company's Board of Directors (in addition to the Purchaser Designee) shall be six or more more, the Board of Directors shall be expanded by an additional position, and Purchaser shall be entitled to designate an additional director on such management slate of nominees (the "Additional Designee"). At least 90 days prior to each annual meeting of stockholders at which a Purchaser Designee (and Additional Designee, if applicable) will stand for election, Purchaser shall provide written notice to the Company indicating the Purchaser Designee (and Additional Designee, if applicable) to be nominated by Purchaser at such annual meeting, and such notice shall set forth as to each Person proposed for nomination all information relating to such Persons that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act (including such Person's written consent to being named in the related proxy statement as a nominee and to serving as a director if elected). (b) Subject to applicable law, the Company shall use its best efforts at all times to take such action as is necessary to ensure that the nominating committee of the Total Voting Power Board of Directors (or the full Board if there is no nominating committee) of the CorporationCompany shall nominate and recommend to the stockholders of the Company that the stockholders elect the Purchaser Designee (and Additional Designee, subject to Sections 16(dif applicable) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors Directors. As a condition precedent to consist the inclusion of such any Purchaser Designee on any slate of nominees that, if elected, would result in to be recommended to stockholders by the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directorspursuant to Section 4.10(a); provided, however, that in the event the Total Voting Power nominating committee of the Corporation Beneficially Owned by Board (or the Berkshire/Greenbriar Investors at any time full Board if there is below 15% of no nominating committee) may review the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors information provided pursuant to this Section 17(a)(i); provided, further, 4.10(a) to evaluate in good faith such Purchaser Designee's (and such Additional 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 if any such Purchaser Designee (or Additional Designee) lacks the Berkshire/Greenbriar Investors, directly character or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, fitness to serve as a director based on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director legal and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors).reasonable

Board Representation. Subject to the terms and conditions of this Agreement, from the date of this Agreement, the Company and each Voting Party shall take all Necessary Action (aincluding by including in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of the stockholders of the Company, including at every adjournment or postponement thereof) to cause, effective immediately following the Effective Time, the Board to be comprised of 8 directors: i. 1 of whom shall be the then-serving Chief Executive Officer of the Company (ithe “CEO Designee”), as set forth on Exhibit A hereto, provided that the CEO Designee shall serve as a Class I Director (as defined in the Charter). ii. 2 of whom (the “ASL Designees” and each an “ASL Designee”) For have been initially designated as set forth on Exhibit A hereto and shall thereafter be designated by ASL; provided that, ASL will be entitled to designate the number of ASL Designees set forth below for so long as ASL Beneficially Owns the corresponding percentage of Voting Shares set forth below, such percentage to be calculated based on the number of Voting Shares then Beneficially Owned by ASL as a percentage of the number of all then outstanding Voting Shares. One ASL Designee shall be designated as a Class II director and one ASL Designee shall be designated as a Class III director (each as defined in the Charter): Percentage Number of ASL Designees 10% or greater 2 5% or greater 1 Less than 5% 0 iii. 2 of whom (the “Sponsor Designees” and each a “Sponsor Designee”) have been initially designated as set forth on Exhibit A hereto and shall thereafter be designated by the Sponsor; provided that, Sponsor will be entitled to designate the number of Sponsor Designees set forth below for so long as Sponsor Beneficially Owns the corresponding percentage of Voting Shares set forth below, such percentage to be calculated based on the number of Voting Shares then Beneficially Owned by Sponsor as a percentage of the number of all then outstanding Voting Shares. All Sponsor Designees must be Independent Directors, and if either Sponsor Designee is determined by the Company, on the advice of counsel, to no longer be Independent Directors, then the Company and all Voting Parties shall take all Necessary Action to cause the removal of such Sponsor Designee, the Sponsor shall designate replacement nominees who qualify as Independent Directors and the Company and the Voting Parties shall take all Necessary Action to elect such individual in lieu of such Sponsor Designee. One Sponsor Designee shall be designated a Class II director and one Sponsor Designee shall be designated as a Class III director (each as defined in the Charter): Percentage Number of Sponsor Designees 10% or greater 2 5% or greater 1 Less than 5% 0 ; and iv. 3 of whom (the “Unaffiliated Designee”, together with the CEO Designee, ASL Designees and the Sponsor Designees, the “Designees”) have been initially designated as set forth on Exhibit A hereto and shall thereafter be designated as follows: (1) for so long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more of ASL and the Total Voting Power of the Corporation, subject Sponsor are each entitled to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election designate at least one director to the Board pursuant to Section 3(a)(i) and Section 3(a)(ii), by mutual agreement of Directors to consist ASL and Sponsor, and (2) thereafter, by the remaining Board members of such nominees that, if elected, would result the Company in accordance with the Board of Directors consisting of two Berkshire/Greenbriar nomination procedures established by the Board. All Unaffiliated Designees must be both Independent Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors); providedalso be qualified to serve on the audit committee under the Nasdaq Corporate Governance Requirement, however, that in the event the Total Voting Power of the Corporation Beneficially Owned and if any Unaffiliated Designee is determined by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed ofCompany, on a cumulative basis, Beneficial Ownership the advice of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003counsel, to Persons who are not Berkshire/Greenbriar Investorsno longer satisfy such requirements, then the Corporation Company and all Voting Parties shall exercise take all authority under applicable law Necessary Action to cause any slate of directors presented to stockholders for election to the Board of Directors to consist removal of such nominees thatUnaffiliated Designee, if electedreplacement Unaffiliated Designees shall be selected by the process described above, would result and the Company and the Voting Parties shall take all Necessary Action to elect such individual in lieu of such Unaffiliated Designee. Two Unaffiliated Designee shall serve as Class I directors (as defined in the Board of Directors consisting of Charter) and one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors)Unaffiliated Designee shall serve as a Class II director.

Board Representation. (a) Beginning at the Effective Time and subject to the terms of this Agreement, the Stockholders and the Company shall take all Necessary Action to cause the Board to be comprised of, initially, six directors, and, by the Independence Deadline, seven directors (provided, that the number of directors may be increased to satisfy the minimum requirements of applicable laws and the listing requirements of the New York Stock Exchange (the “NYSE”), as applicable, reasonably accounting for Independent Directors and required committee positions), one of whom shall be the Chief Executive Officer, initially two of whom, and, by the Independence Deadline, three of whom shall be Independent Directors designated pursuant to Section 2(a)(ii) below, and the remainder of which shall be designated pursuant to Section 2(a)(i) below. The initial Board shall consist of the persons listed on Schedule A. For purposes of this Section 2, the members of the ▇▇▇▇▇▇▇▇ Group shall be treated as a single “Stockholder” and their Stockholder Percentage shall be aggregated for purposes of Section 2(a)(i) below. (i) For so long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more of the Total Voting Power of the Corporation, subject to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors); provided, however, that in the event the Total Voting Power of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term each of the Stockholders Agreement holds the corresponding Stockholder Percentage set forth in the table below, the Company shall, and the Stockholders shall have soldtake all Necessary Action to, transferred include in the slate of nominees recommended by the Board for election as directors at each applicable annual or otherwise disposed of, on a cumulative basis, Beneficial Ownership special meeting of shares shareholders at which directors are to be elected that aggregate number of Common Stock and/or Convertible Preferred Stock together representing 66?% Directors set forth opposite the range of its Stockholder Percentage: Range of Stockholder Percentages Number of Equal to or more greater than Less than Designees 20 50 2 50 100 Majority (ii) The nomination of Independent Directors to include in the slate of nominees recommended by the Board for election as directors at each applicable annual or special meeting of stockholders at which directors are to be elected will be the responsibility of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors)full Board.

Board Representation. (a) (i) For so long Subject to applicable law, promptly upon the acceptance for payment of any Shares pursuant to the Offer, and from time to time thereafter as Shares are acquired pursuant to the Berkshire/Greenbriar Investors Beneficially Own 15% or more Offer, Merger Subsidiary shall be entitled to designate such number of directors, rounded up to the Total Voting Power of the Corporationnext whole number, subject to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to serve on the Board of Directors to consist of such nominees that, if elected, would result in the Company as will give Merger Subsidiary representation on the Board of Directors consisting of two Berkshire/Greenbriar the Company equal to at least that number of directors on the Company’s Board of Directors and eight Non-Berkshire/Greenbriar which equals the product of (i) the total number of directors on the Board of Directors (including at least five Independent Directors); provided, however, that in giving effect to the event the Total Voting Power election of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors additional directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term and including current directors serving as officers of the Stockholders Agreement Company) multiplied by (ii) the percentage that the aggregate number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the number of Shares outstanding. The Company shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise take all authority under applicable law actions necessary to cause any slate Merger Subsidiary’s designees to be elected or appointed to the Company’s Board of directors presented to stockholders for election to Directors, including increasing the size of the Board of Directors to consist and/or securing the resignations of such nominees thatincumbent directors (including, if electednecessary, would result in to ensure that a sufficient number of independent directors are serving on the Board of Directors consisting of one Berkshire/Greenbriar Director the Company in order to satisfy the Nasdaq National Market listing requirements). Subject to applicable law and nine Non-Berkshire/Greenbriar to the extent permitted by the Nasdaq National Market listing requirements, the Company shall cause individuals designated by Merger Subsidiary to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Merger Subsidiary, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Merger Subsidiary will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. (b) Notwithstanding the provisions of Section 1.03(a), following the election or appointment of Merger Subsidiary’s designees pursuant to Section 1.03(a) and until the Effective Time, the Board of Directors of the Company shall at all times have at least three directors who are directors on the date hereof and who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries (the “Independent Directors”); provided that if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that the remaining Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten Business Days, and further provided that if no such Independent Director is appointed in such time period, Merger Subsidiary shall designate such Independent Director(s), provided further that if no Independent Director then remains, the other directors shall designate three Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Merger Subsidiary, not to be unreasonably withheld or delayed. (c) Following the election or appointment of Merger Subsidiary’s designees pursuant to Section 1.03(a) and until the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including at least six any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors of the Company, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary and any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Subsidiary under this Agreement or any other action by the Company’s Board of Directors under or in connection with this Agreement. The Independent Directors shall have full power solely with respect to the matters set forth in the previous sentence to be approved by the Independent Directors).

Board Representation. (a) At the Effective Time, the Stockholders shall have the right to designate two (i2) For so long directors to serve on the Board until the next annual meeting of stockholders to elect directors; provided, that each such director nominee must be approved by the Company’s Nominating and Corporate Governance Committee and by a majority of the Company’s Directors as set forth in Section 2.1(b). (b) In connection with the Company’s annual meeting of stockholders to be held during the calendar years ending December 31, 2008, 2009 and 2010, the Stockholders shall have the right to nominate two (2) members to the Board who will be submitted by the Company for election at the annual meeting of stockholders of the Company (each, a “ Designee ,” and collectively, the “ Designees ”). If at any time the Stockholders collectively own less than 15% of the aggregate outstanding Company Common Stock (assuming conversion of the Company Preferred Stock), then the Stockholders shall have no further contractual right to nominate any Designees. Before being submitted by the Company to its stockholders for approval at an annual meeting, each Designee shall be subject to the reasonable prior approval of a majority of both the Directors (other than any Director nominated or designated by the Stockholders) and the Company’s Nominating and Corporate Governance Committee (excluding any member thereof nominated or designated by the Stockholders). Each Designee elected to the Board pursuant to this Section 2.1(b) shall hereinafter be referred to as a “Stockholder Director” and collectively all Stockholder Directors shall hereinafter be referred to as the Berkshire/Greenbriar Investors Beneficially Own 15% “Stockholder Directors”. (c) Each Stockholder Director and each Designee must meet the requirements of being an Independent Director. Further, the Company shall be entitled to conduct reasonable diligence of any proposed Designee or more Stockholder Director as necessary to assist in its evaluation of such Designee or Stockholder Director and to determine compliance with applicable rules and regulation of the Total Voting Power Commission and Nasdaq. (d) The Designees shall be selected by the Stockholders pursuant to a process established by the Stockholders. Regardless of such process, the Company shall be permitted to rely solely upon the direction of the CorporationStockholder’s Representative with respect to the identity of the Designees. (e) During such time as the Stockholders have the right to appoint Designees, subject to Sections 16(dthere shall not be more than six (6) and 17(a)(iv)members on the Board of Directors; provided, that the Corporation shall exercise all authority under applicable law to cause any slate size of directors presented to stockholders for election to the Board of Directors to consist may be increased beyond six (6) members if approved by a majority vote of such nominees that, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including Directors, which majority must include at least five Independent Directors); provided, however, that in the event the Total Voting Power of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors)Stockholder Director.

Board Representation. (a) Contemporaneously with the Closing, the Board shall (i) For so long increase the number of Directors that comprise the entire Board from seven (7) directors to ten (10) directors, (ii) subject to the terms of this Article III, appoint as directors the three individuals designated by the Peed Stockholder pursuant to Section 7.16 of the Merger Agreement (each of whom shall be considered a Stockholder Designee for all purposes of this Agreement) and (iii) appoint Peed as the Berkshire/Greenbriar Investors Beneficially Own 15% or more Non-Executive Vice Chairman of the Total Voting Power of the Corporation, subject to Sections 16(d) and 17(a)(iv), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors)Board; provided, however, that each Stockholder Designee shall satisfy the applicable requirements set forth in Section 3.1(c). (b) During the Board Right Period, the Peed Stockholder shall have the right to designate up to three individuals (each, a “Stockholder Designee”), who may include Peed, to be ‑11‑ members of the Board. In the event that the Corporation at any time or from time to time increases or decreases the size of the Board, (i) the number of Stockholder Designees that the Peed Stockholder is entitled to designate shall be increased or decreased proportionately as the case may be (rounding up to the nearest whole number); provided that if the size of the Board is decreased to seven individuals, the Peed Stockholder shall only have the right to designate two Stockholder Designees; (ii) if the size of the Board is increased, such increase will not affect the tenure, term or other rights to serve as a member of the Board of any Stockholder Designee then serving on the Board, and (iii) if the size of the Board is decreased such that the number Stockholder Designees that the Peed Stockholder is entitled to designate is decreased, then the Peed Stockholder shall cause one or more Stockholder Designees then serving on the Board to resign from the Board so that the number of Stockholder Designees serving on the Board equals the number of Stockholder Designees that the Peed Stockholder is entitled to designate following such decrease in the size of the Board. (c) Any person designated by the Peed Stockholder as a Stockholder Designee (i)(A) shall not be a person that would be required to disclose any information pursuant to Item 2(d) or (e) of Schedule 13D if such Stockholder Designee were the “person filing” such Schedule 13D, (B) shall not have engaged in a proxy contest or other activist campaign and (C) shall not be an employee, director or 5.0% or greater equity holder of any Person that is in Competition with the Corporation or any of its Subsidiaries, (ii) shall not be prohibited or disqualified from serving as a director of a public company pursuant to any applicable rule or regulation of the SEC or NASDAQ or pursuant to applicable Law (including applicable insurance Laws), (iii) shall, prior to his or her appointment to the Board, provide an executed resignation letter in substantially the form set forth in Exhibit A hereto automatically resigning from the Board and from any committees or subcommittees of the Board or the Corporation to which he or she is then appointed or on which he or she is then serving upon the occurrence of the Board Right Termination Event, in the event that he or she no longer meets the Total Voting Power qualifications set forth in this Section 3.1(c) and (iv) other than the Peed Stockholder, shall qualify as an “independent director” (as defined in Rule 5605(a)(2) of the NASDAQ Listing Rules, or any successor rule thereto, as amended). (d) During the Board Right Period, the Corporation shall use its reasonable best efforts to procure, at each annual general meeting of stockholders of the Corporation Beneficially Owned occurring during the Board Right Period at which the term of an applicable Stockholder Designee will expire in accordance with the Corporation’s Organizational Documents, the election or re‑election, as the case may be, of the Stockholder Designees, including by (i) nominating such Stockholder Designees for election to serve as Directors as provided in this Agreement, (ii) subject to compliance by the Berkshire/Greenbriar Investors at any time is below 15% Peed Stockholder with Section 3.1(f), including such nomination and other required information regarding such Stockholder Designee in the Corporation’s proxy materials for such meeting of stockholders and (iii) soliciting or causing the solicitation of proxies in favor of the Total Voting Power election of such Stockholder Designees as Directors, for a term expiring at the next annual general meeting of stockholders of the Corporation, or at such earlier time, if any, as any Stockholder Designee may resign, retire, die or be removed (for any reason) as a Director (other than upon the Berkshire/Greenbriar Investors occurrence of the Board Right Termination Event). Notwithstanding the foregoing, the Corporation shall not be obligated to nominate or to use its reasonable best efforts to cause to be elected as a Director any Stockholder Designee (1) who in the reasonable judgment (including with respect to applicable fiduciary duties) of the Nominating and Corporate Governance Committee of the Board (the ‑12‑ “Nominating Committee”) fails to satisfy (i) the requirements set forth in Section 3.1(c) or (ii) the requirements set forth in the Corporation’s Organizational Documents, Corporate Governance Guidelines and Code of Conduct and Ethics included in the Investor Relations – Corporate Overview section of the Corporation’s website (located at ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇) as in effect (and as may be amended and amended and restated) from time to time, or because the Nominating Committee determines that recommending such Stockholder Designee for nomination for election as a Director would be reasonably likely to be inconsistent with its fiduciary obligations, or (2) if the Board reasonably determines that recommending such Stockholder Designee for election as a Director would be inconsistent with its fiduciary obligations; provided that if the Nominating Committee determines not to recommend a Stockholder Designee to the Board because the Nominating Committee determines such Stockholder Designee fails to meet the qualifications set forth above or because the Nominating Committee reasonably determines that recommending such Stockholder Designee for nomination for election as a Director would be inconsistent with its fiduciary obligations or if the Board determines not to nominate such Stockholder Designee for election to the Board because it has reasonably determined that recommending such Stockholder Designee for nomination for election as a Director would be inconsistent with its fiduciary obligations, the Peed Stockholder shall be entitled to designate another natural person as a replacement Stockholder Designee (subject to compliance with the terms of this Article III with respect to such Stockholder Designee), and the Corporation shall (subject to the terms and conditions of this Section 3.1) use its reasonable best efforts to cause such Stockholder Designee to be elected or appointed to the Board. (e) In furtherance of, and not in limitation to, the Peed Stockholder’s rights in this Section 3.1, during the Board Right Period, (i) the Peed Stockholder shall have no further the right (but not the obligation), upon written notice to nominate two Directors pursuant the Corporation as provided in Section 3.1(f), to designate a Stockholder Designee to replace any Stockholder Designee who shall have resigned, retired, died or been removed from office (for any reason) (other than upon the occurrence of the Board Right Termination Event) or who, following the voting of stockholders at a meeting of stockholders of the Corporation shall have failed to be elected or re‑elected, as the case may be, by the requisite vote of the Corporation’s stockholders; and (ii) subject to the provisions of this Section 17(a)(i)Article III, the Corporation shall promptly following the receipt of written notice from the Peed Stockholder as contemplated above following the resignation, retirement, death or removal from office of such Stockholder Designee, appoint such replacement Stockholder Designee to serve on the Board; provided, furtherthat the Board shall not be obligated to appoint such Stockholder Designee unless the Peed Stockholder or such Stockholder Designee has delivered to the Board the information that would be required to be delivered pursuant to Section 3.1(f)(ii) if such Stockholder Designee were up for election. (f) Not less than ninety (90) days prior to the anniversary of the prior year’s annual general meeting of stockholders of the Corporation occurring during the Board Right Period at which one or more Stockholder Designees are to be elected, the Peed Stockholder shall (i) notify the Corporation in writing of the name of the Stockholder Designees to be nominated for election at such meeting and (ii) provide, or cause such Stockholder Designees to provide, to the Corporation, all information concerning the Stockholder Designees and his or her nomination to be elected as Directors at such meeting as shall reasonably be required by the Corporation’s standard director ‑13‑ and officer questionnaire (including any reasonable follow-up requests by the Corporation for additional information). (g) During the Board Right Period, the Corporation agrees that if any Stockholder Designee serving as a Director shall be entitled to the Berkshire/Greenbriar Investorssame rights, directly privileges and compensation applicable to all other non‑employee Directors generally or indirectlyto which all such non‑employee Directors are entitled, including any rights with respect to indemnification arrangements, directors and officers insurance coverage and other similar protections and expense reimbursement rights. (h) The Peed Stockholder acknowledges that the Board may from time to time establish procedures that the Board reasonably determines are appropriate to address any conflicts of interest that a Stockholder Designee may have, including as a result of such person’s service in any capacity at AmRisc, LLC or any of its Affiliates. (i) Notwithstanding anything in this Agreement to the contrary, the Corporation will not be obligated to take any action in respect of any Stockholder Designee pursuant to Section 3.1(d) or Section 3.1(e) until the Peed Stockholder provides, or causes to be provided, in all material respects, the notice and information required by Section 3.1(f). (j) Notwithstanding anything to the contrary in this Agreement, each Stockholder Designee (including Peed), during the term of the Stockholders Agreement any service as a Director, shall have sold, transferred not be prohibited from acting in his or otherwise disposed of, on her capacity as a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors)complying with his or her fiduciary duties as a Director.

Board Representation. (a) (i) For so So long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more of the Total Voting Power of the Corporation, subject to Sections 16(d) and 17(a)(iv)any Series A Preferred Stock remains outstanding, the Corporation Requisite Preferred Holders shall exercise all authority under applicable law be entitled to cause any slate of directors presented to stockholders for election elect one individual to the Board of Directors to consist of such nominees thatserve as a director, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors)which individual initially shall be E▇▇▇ ▇▇▇▇▇; provided, however, that upon the occurrence or the continuance of any Event of Default, the Requisite Preferred Holders shall be entitled to elect one additional individual to the Board to serve as a director (a "Default Director"). (ii) Notwithstanding any other sections of the Certificate of Incorporation, so long as any Series A Preferred Stock remains outstanding, the Requisite Preferred Holders shall be entitled to (A) remove from the Board any Preferred Director elected under the foregoing subsection (i), (B) elect each successor to any such Preferred Director removed in accordance herewith or who otherwise vacates such office, and (C) remove any other director necessary to create sufficient vacancies on the Board to permit the Requisite Preferred Holders to elect additional individuals to the Board upon an occurrence or continuance of an Event of Default, or an Event of Option, pursuant to the foregoing clause (i) above. (iii) The right of the Preferred Holders to elect directors may be exercised at the special meeting called pursuant to this Section, at any annual or other special meeting of shareholders and, to the extent and in the event the Total Voting Power manner permitted by Applicable Law, pursuant to a written consent in lieu of a shareholders meeting. A proper officer of the Corporation Beneficially Owned by shall, upon the Berkshire/Greenbriar Investors at any time is below 15% written request of the Total Voting Power Requisite Preferred Holders, addressed to any officer of the Corporation, call a special meeting of the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors holders of Preferred Stock for the purpose of electing directors pursuant to this Section 17(a)(i); provided, further, that if Section. Such meeting shall be held at the Berkshire/Greenbriar Investors, directly or indirectly, during earliest legally permissible date at the term principal office of the Stockholders Agreement shall have soldCorporation, transferred or otherwise disposed of, on at such other place designated by the Requisite Preferred Holders. If such meeting has not been called by a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power proper officer of the Corporation represented within 2 days after personal delivery, by hand or by a nationally recognized, overnight courier guaranteeing next business day delivery, of such written request upon any officer of the Initial Berkshire/Greenbriar Shares as Corporation or within 5 days after mailing the same to the secretary of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investorsthe Corporation at its principal office, then the Requisite Preferred Holders may call such meeting at the expense of the Corporation, and such meeting may be called upon the notice required for annual meetings of shareholders and shall be held at the Corporation's principal office, or at such other place designated by the Requisite Preferred Holders. The Preferred Holders shall be given access to the stock record books of the Corporation for the purpose of causing a meeting of stockholders to be called pursuant to this Section. (iv) At any meeting or at any adjournment thereof at which the Preferred Holders have the right to elect directors, the presence, in person or by proxy, of the Preferred Holders shall be required to constitute a quorum for the election or removal of any director by the Requisite Preferred Holders. The affirmative vote of the Requisite Preferred Holders shall be required to elect or remove any Preferred Director. (v) If any Event of Default shall occur and be continuing, the Preferred Holders shall also have any other rights which such holder is entitled to under any Document at any time and any other rights which such holder may have pursuant to Applicable Law. (vi) The Corporation shall exercise all authority under applicable law to cause any slate pay or reimburse each Preferred Director for the reasonable out-of-pocket expenses incurred by such Person in connection with attending formal meetings of directors presented to stockholders for election to the Board and any committee thereof. The Corporation shall use its best efforts to maintain video teleconferencing capabilities for all formal meetings of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent Directors)any committee thereof.

Board Representation. (a) (i) For so long as Subject to the Berkshire/Greenbriar Investors Beneficially Own 15% or more conditions set forth herein, the Company shall nominate, and the Company and the Purchaser shall use their best efforts to cause the election at the Meeting of, certain persons to be designated by each of the Total Voting Power of Purchaser and the CorporationCompany (collectively, subject to Sections 16(d) and 17(a)(ivthe "Nominees"), the Corporation shall exercise all authority under applicable law as provided herein, to cause any slate of serve as directors presented to stockholders for election to on the Board of Directors to consist of the Company such that: (i) a majority of the members of such nominees thatBoard shall be comprised of the Purchaser's designated representatives; and (ii) three of the members of such Board shall be comprised of the Company's designated representatives consisting of Kenneth I. Sawyer ("Sawyer") and two additional representat▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ the cur▇▇▇▇ Board of Directors of the Company (collectively, if electedthe "Company Designees"). Notwithstanding anything to the contrary contained herein, would result each representative designated by the Purchaser in accordance with Section 7.3(f) hereof shall be nominated for election to serve on the Board of Directors consisting unless such representative shall not be satisfactory to the Company's current Board of two Berkshire/Greenbriar Directors for good faith reasons and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors); provided, however, that in the event the Total Voting Power of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors at any time is below 15% of the Total Voting Power of the Corporation, the Berkshire/Greenbriar Investors each Company Designee shall have no further right be nominated to nominate two Directors pursuant to this Section 17(a)(i); provided, further, that if the Berkshire/Greenbriar Investors, directly or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, serve on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors unless such Designee (other than Sawyer) shall not be satisfactory to consist the Purchaser for good faith rea▇▇▇▇. All current members of such nominees that, if elected, would result in the Company's Board of Directors consisting not nominated as set forth above shall resign effective upon the Closing. Any current members of one Berkshire/Greenbriar Director such Board nominated as set forth above shall resign effective upon the Closing, subject to their renomination and nine Nonre-Berkshire/Greenbriar Directors election as set forth herein. All Nominees shall take office if, and only if, the Closing shall occur. (b) Any director designated hereunder shall serve subject to the terms of the Company's Certificate of Incorporation and By-laws, each as in effect on the Closing Date, and the provisions of applicable law. (c) The Company Designees and the Purchaser shall jointly designate two of the Company's directors to comprise the audit committee of the Company. Each of such directors must qualify as independent, outside directors in accordance with the rules and regulations of The New York Stock Exchange. (d) The directors designated by the Purchaser shall serve as Class I and Class III directors of the Company (as allocated by the Purchaser) whose terms shall expire in the years 2000 and 1999, respectively. The Company Designees shall serve as Class II directors of the Company whose terms shall expire in the year 2001. There shall be no Class II directors other than the Company Designees (and their respective successors selected in accordance with Section 8.1 hereof) through May 31, 2001. (e) The Company shall include in the Proxy Statement distributed in respect of the Meeting the Proposals and shall recommend its approval of each Proposal (including at least six Independent Directorsapproval of all Nominees) by the shareholders of the Company. Sawyer and the Purchaser (and its Affiliates) agree to vote any share▇ ▇▇ ▇ommon Stock which they own or otherwise have the power to vote in favor of each of the Proposals (including approval of all Nominees). (f) The Company shall give the Purchaser written notice not less than 10 days prior to the filing with the SEC of the preliminary Proxy Statement in respect of the Meeting to allow the Purchaser to designate its nominees for director for inclusion in such Proxy Statement. The Company shall have no obligation to include such nominees in the Proxy Statement unless the Company receives written notice from the Purchaser setting forth its designated nominees (along with all biographical and other information necessary for inclusion in the Proxy Statement) not later than five days after the Company's notice to the Purchaser.

Board Representation. (a) (i) For so long as the Berkshire/Greenbriar Investors Beneficially Own 15% or more As of the Total Voting Power Second Closing Date and until the earlier to occur of the Corporationsixth anniversary of the Second Closing Date and the date on which Shareholders own, subject to Sections 16(d) and 17(a)(ivcollectively, less than 20% of the Shares (the "Shareholder Designee Period"), the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to shall consist of such nominees that, if elected, would result in the Board of Directors consisting of two Berkshire/Greenbriar Directors and eight Non-Berkshire/Greenbriar Directors no more than twelve (including at least five Independent Directors)12) directors; provided, however, that in if Mr. ▇'▇▇▇▇▇ ▇▇▇ses to serve as a director, the event Board of Directors shall thereafter consist of no more than eleven (11) directors during the Total Voting Power Shareholder Designee Period. For so long as Shareholders are entitled to at least two Shareholder Designees under this Agreement, Shareholders shall be entitled to have one Shareholder Designee serve on each committee of the Corporation Beneficially Owned by Board of Directors other than any committee formed for the Berkshire/Greenbriar Investors at any time is purpose of considering matters relating to the Shareholders and as set forth below 15% of with respect to the Total Voting Power of Nominating Committee. (b) On the CorporationSecond Closing Date, the Berkshire/Greenbriar Investors shall have no further right Company will cause Davi▇ ▇▇▇▇▇▇ ▇▇▇ one additional person as designated by Shareholders or, subject to nominate two Directors pursuant Section 3.1(d), such other substitute persons as may be designated by Shareholders, to this Section 17(a)(i); provided, further, that if be elected to the Berkshire/Greenbriar Investors, directly or indirectly, Board of Directors. At all times during the term of Shareholder Designee Period, the Stockholders Agreement shall have soldCompany agrees, transferred or otherwise disposed subject to Section 3.1(d), to support the nomination of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of and the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares Company's Nominating Committee (as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation defined herein) shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election recommend to the Board of Directors to consist the inclusion in the slate of such nominees that, if elected, would result in recommended by the Board of Directors consisting to shareholders for election as directors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar or more persons to serve as Unaffiliated Directors (including at least six Independent except with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Shareholders beneficially own less than 50% of the Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not be further amended by the Board of Directors during the Shareholder Designee Period. (c) Upon any decrease in Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or Voting Securities below the Actual Voting Power Threshold, Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be equal to the number of Shareholder Designees which Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, Shareholders shall promptly offer to cause all of the Shareholder Designees to resign from the Board of Directors and any committees thereof and the Company's obligations under this Section 3.1 shall terminate. (d) Notwithstanding the provisions of this Section 3.1, Shareholder shall not be entitled to designate any person to the Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to serve as a director of the Company or if the Company objects to a Shareholder Designee because such Shareholder Designee has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D or such person is currently the target of an investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, decree, or judgment of any court or agency prohibiting service as a director of any public company or providing investment or (e) Each Shareholder Designee serving on the Board of Directors shall be entitled to all compensation and stock incentives granted to directors who are not employees of the Company on the same terms provided to such directors.

Board Representation. At all times when the Stockholder’s Voting Percentage is 10% or more: (a) (i) For so long as The Company and the Berkshire/Greenbriar Investors Beneficially Own 15% or more Stockholder shall use their reasonable best efforts to cause at least three of the Total Voting Power Directors to be considered “independent” under the rules of the Corporation, subject to Sections 16(d) and 17(a)(iv)SEC, the Corporation NYSE and any other or additional exchange on which the securities of the Company are listed, including for purposes of Rule 10A-3 promulgated under the Exchange Act (or any successor rule thereto). (b) The Stockholder shall exercise all authority under applicable law have the right to cause any slate designate a number of directors presented individuals to stockholders be nominees for election to the Board (“Stockholder Designees”) equal to the Stockholder’s Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, rounded to consist the nearest whole number (and in any event not less than one), and the Company and the Stockholder shall use their reasonable best efforts to cause such Stockholder Designees to be elected to the Board; provided that the number of such nominees thatDirectors who are Affiliated Directors shall not in any event exceed a number equal to the Stockholder’s Voting Percentage multiplied by the total number of Directors that the Company would have if there were no vacancies, if electedrounded to the nearest whole number greater than zero. If at any time the Stockholder’s Voting Percentage is less than 10%, would result in the Stockholder shall promptly cause all of the Stockholder Designees then serving as Directors to resign from the Board, and the contractual rights of the Stockholder to designate one or more Stockholder Designees pursuant to this Article III shall forever terminate. (c) The Company shall cause any committee of the Board to include in its membership a number of Stockholder Designees then serving as Directors consisting equal to the Stockholder’s Voting Percentage multiplied by the total number of two Berkshire/Greenbriar Directors members that such committee would have if there were no vacancies on such committee, rounded to the nearest whole number, except to the extent that such membership would violate the rules of the SEC, the NYSE and eight Non-Berkshire/Greenbriar Directors (including at least five Independent Directors)any other or additional exchange on which the securities of the Company are listed, or any other applicable securities Laws; provided, however, that no committee may consist solely of Affiliated Directors. If at any time the number of Stockholder Designees then serving as Directors or as members of any committee of the Board exceeds the number of Stockholder Designees the Stockholder is entitled to designate to the Board or any committee thereof pursuant to this Article III, the Stockholder shall cause the number of Stockholder Designees then serving as Directors or as members of such committee of the Board representing such excess to resign immediately as Directors or committee members, as applicable. (d) Each Stockholder Designee shall not be prohibited or disqualified from serving as a Director pursuant to any rule or regulation of the SEC, the NYSE or any other or additional exchange on which securities of the Company are listed or by applicable Law. The Stockholder shall, and shall cause the Stockholder Designees to, timely provide the Company with accurate and complete information relating to the Stockholder and the Stockholder Designees that may be required to be disclosed by the Company under the Securities Act or the Exchange Act, including such information required to be furnished by the Company with respect to the Stockholder Designees in a proxy statement pursuant to Rule 14a-101 promulgated under the Exchange Act, and the nationality of such Stockholder Designee. In addition, at the Company’s request, the Stockholder shall cause the Stockholder Designees to complete and execute the Company’s director and officer questionnaire prior to being elected to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by the Company. (e) With respect to each meeting of stockholders of the Company at which Directors are to be elected, the Company shall provide the Stockholder with notice of such meeting not less than 120 days prior to the date thereof, and the Stockholder shall provide the Company with written notice of the names (together with all other information requested by the Company pursuant to Section 3.1(d)) of the Stockholder Designees to be nominated for election at such meeting not more than 30 days following the delivery of such notice. If the Stockholder shall fail to timely provide the Company with the names of that number of Stockholder Designees equal to the number of Stockholder Designees the Stockholder is entitled to designate pursuant to this Article III, the Nominating Committee of the Board may select alternative nominees for such positions. If any Stockholder Designee is not qualified, available or eligible to stand for election, then the Stockholder may name an acceptable and available replacement Stockholder Designee and any such Stockholder Designee will be included as a nominee for election at such meeting if written notice of the name of such Stockholder Designee is provided to the Company within a reasonable period of time prior to the mailing of the proxy statement for such meeting. The Company shall cause the Stockholder Designees to be included in the slate of Directors approved and recommended by the Board for election at such meeting and shall use its reasonable best efforts to cause the election of each such Stockholder Designee, including soliciting proxies in favor of the election of such Stockholder Designees at such meeting. (f) In the event the Total Voting Power size of the Corporation Beneficially Owned by the Berkshire/Greenbriar Investors Board is increased at any time is below 15% and as a result of such increase, the Stockholder shall be entitled to designate one or more additional Stockholder Designees based upon the increased size of the Total Board and its then Voting Power of the Corporation, the Berkshire/Greenbriar Investors shall have no further right to nominate two Directors Percentage pursuant to this Section 17(a)(i); provided3.1, further(i) the Stockholder shall be entitled promptly to designate such Stockholder Designees, that if and (ii) the Berkshire/Greenbriar Investors, directly Company shall cause the prompt appointment or indirectly, during the term of the Stockholders Agreement shall have sold, transferred or otherwise disposed of, on a cumulative basis, Beneficial Ownership of shares of Common Stock and/or Convertible Preferred Stock together representing 66?% or more of the Total Voting Power of the Corporation represented by the Initial Berkshire/Greenbriar Shares as of [ ], 2003, to Persons who are not Berkshire/Greenbriar Investors, then the Corporation shall exercise all authority under applicable law to cause any slate of directors presented to stockholders for election to the Board of Directors to consist of such nominees that, if elected, would result in the Board of Directors consisting of one Berkshire/Greenbriar Director and nine Non-Berkshire/Greenbriar Directors (including at least six Independent DirectorsStockholder Designee(s) as Director(s). (g) Upon the resignation, retirement, death or other removal (with or without cause) from office of any Stockholder Designee serving as a Director at a time when the Stockholder has the right under this Section 3.1 to designate a replacement Stockholder Designee, (i) the Stockholder shall be entitled promptly to designate a replacement Stockholder Designee and (ii) the Company shall cause the prompt appointment or election of such replacement Stockholder Designee as a Director.