Common use of Board Representation Clause in Contracts

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 to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of (i) the chief executive officer of the Company, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole number.

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 to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9a) directors, comprised of (i) the chief executive officer of the Company, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, For so long as the Horizon EquityholdersS Shareholders, in the aggregate, Beneficially Own Voting Securities representing at least 12% ten per cent. (10%) of the Closing AmountVoting Securities outstanding at such time, of which at least Capricorn may, upon written notice to the Company, designate two (2) individuals as Directors (each, a “Shareholder Designee”) and the Company shall qualify appoint such Shareholder Designees as “independent directors” under stock exchange regulations applicable 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 Companyrequirements 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. (II10%) two (2) Horizon Designees, so long as of the Horizon EquityholdersVoting Securities outstanding at such time but still, in the aggregate, Beneficially Own Voting Securities representing at least 6% but less than 12% of the Closing AmountOwnership Threshold, each of which Capricorn shall qualify as “independent directors” under stock exchange regulations applicable use its best endeavours to the Company, and (III) until the Horizon Sunset Date, promptly cause one (1) Horizon Designeeof its Shareholder Designees, who shall qualify as an “independent director” under stock exchange regulations applicable if any, then appointed to the CompanyBoard 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 Capricorn to appoint Shareholder Designees shall be permanently reduced from two (2) to one (1); provided provided, further, that, at such time that the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco EquityholdersS Shareholders, in the aggregate, cease to Beneficially Own Voting Securities representing at least 24% of the Closing AmountOwnership Threshold, of which at least one (1) Capricorn shall qualify as an “independent director” under stock exchange regulations applicable use its best endeavours to promptly cause each Shareholder Designee, if any, then appointed to the CompanyBoard to resign, (B) four (4) Topco Designeeseffective immediately, so long as from the Topco EquityholdersBoard and from any committees or subcommittees thereof to which the Shareholder Designee is then appointed or on which he or she is then serving, in and the aggregate, Beneficially Own at least 18% but less than 24% right of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled Capricorn to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Shareholder Designees shall be required permanently terminate. Capricorn hereby designates to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors serve on the Board as permitted an initial Shareholder Designee, effective at the Closing, each of Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxxx, and the Company agrees, effective at the Closing, to be designated pursuant promptly appoint Xxxxxxx Xxxxxxx and Xxxx X. Xxxxxxxxx as Directors, and shall take all necessary actions to maintain their appointment (subject to this Section 3(aClause 3.3). If for whatever reason, rounded up Xxxxxxx Xxxxxxx and/or Xxxx X. Xxxxxxxxx are not able to assume their function as director upon Closing, Capricorn will be entitled to designate a replacement who meets the next whole numberrequirements of Clause 3.3(b). Upon the Closing, the Board shall consist of ten (10) Directors.

Board Representation. Subject The board of directors of New Seadrill (the “Board”) will be the main decision making body of New Seadrill and may delegate specific powers to the terms and conditions of this Agreement, Board committees and/or management from the date of this Agreement, the Company and each Voting Party shall take all Necessary Action time to cause, effective immediately following the Closing Date, the time. The Board to will be comprised of set at nine (9) directors, comprised of (i) the chief executive officer . For so long as Hemen owns at least [5]% of the Companyissued and outstanding Equity Securities, New Seadrill will not increase or decrease the size of the Board without the prior written consent of Hemen. For so long as Hemen maintains ownership of at least [10]% of the issued and outstanding Equity Securities of New Seadrill, Hemen will have the right to: • designate for election to the Board/appoint three (ii) five (53) directors designated by the Topco Equityholders (the “Topco Hemen Designees” and each a “Topco Designee”), including the Chairman with a casting vote; and 1 Capitalized terms used but not defined in this Governance Term Sheet have the meanings given to such terms in the Investment Agreement. • designate for election to the Board/appoint two (2) independent directors, each of which at least one (1) whom shall not be related parties of Hemen or otherwise connected with Hemen and shall qualify as an “independent director” under stock exchange applicable provisions of the Exchange Act and under applicable NYSE and Oslo Exchange rules and regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon DesigneesIndependent Nominees”), ; provided that the other directors on the Board shall be provided with a reasonable opportunity to meet with and consult with such prospective Independent Nominees and Hemen prior to their nomination. For so long as Hemen maintains ownership of which at least [5]% but less than [10]% of the issued and outstanding Equity Securities of New Seadrill, Hemen will have the right to: • designate for election to the Board/appoint two (2) shall qualify as “independent directors” under stock exchange regulations applicable Hemen Designees, including the Chairman with a casting vote; and • designate for election to the CompanyBoard/appoint two (2) Independent Nominees; provided that the other directors on the Board shall be provided with a reasonable opportunity to meet with and consult with such prospective Independent Nominees and Hemen prior to their nomination. From • The majority of the Closing DateHemen Designees and the Independent Nominees (taken together) including the Chairman shall be persons who are not resident in the United Kingdom. • Meetings of the Board shall be held outside Norway and the United Kingdom. • Where board meetings or committee meetings are held by electronic means, the Horizon Equityholders majority of the members participating (including the Chairman) shall have be physically located outside the rightUnited Kingdom. The Board will use all reasonable endeavours to ensure that no such meeting is deemed to be held in Norway. • The quorum for meetings of the Board shall be a majority in number of directors who are neither resident nor present in the United Kingdom, but provided that at least three independent directors shall be present. If quorum is not formed, the obligationmeeting shall be adjourned for [72 hours, provided that in an emergency the meeting shall be adjourned for 24 hours], and at the adjourned meeting quorum will be formed by the directors present. • Written resolutions of the Board or any committee of the Board shall only be permitted if all the directors or committee members (as applicable) are outside the United Kingdom when the resolution is signed. The use of written resolutions shall be kept to nominate (I) three (3) Horizon Designeesa minimum, as far as is practically possible. For so long as the Horizon EquityholdersHemen Designees are entitled to serve on the Board, in the aggregate, Beneficially Own at least 12% one of the Closing AmountHemen Designees shall be entitled to serve on, and the Board shall appoint such Hemen Designee to, such committee or committees of which at least two (2) the Board as shall qualify as “independent directors” under stock exchange regulations be determined by Hemen, subject to applicable independence requirements of the NYSE and the Exchange Act and/or the Oslo Exchange rules, provided that the Board shall not create any new committees and/or increase the size of any committees of the Board currently in existence without the prior written consent of Hemen, not to the Company, (II) two (2) Horizon Designees, be unreasonably withheld or delayed. For so long as the Horizon Equityholders, Centerbridge retains at least 50% of its original investment in the aggregateEquity Securities of New Seadrill, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders Centerbridge shall have the right to designate a number for election to the Board/appoint as of the Effective Date and at the first election of directors to the Board following the one year anniversary of the Effective Date one (1) independent director (the “Centerbridge Designee”). The Select Commitment Parties, in their capacity as shareholders of New Seadrill, will have the right to designate for election to the Board/appoint as of the Effective Date one (1) independent director. Hemen, Centerbridge and the Select Commitment Parties on mutual agreement (with each party’s agreement not to be unreasonably withheld) will have the right to designate for election to the Board/appoint as of the Effective Date two (2) independent directors. The ability to designate and/or appoint Board which give members shall include the Topco Equityholders ability to remove such Board members. The initial shareholders will provide New Seadrill with a customary indemnity on terms to be agreed in relation to any claims that may arise against New Seadrill as a result of initial shareholders exercising such a removal right. From and after the same percentage first election of total directors on to the Board as permitted to be designated pursuant to this Section 3(a)following the one year anniversary of the Effective Date, rounded up all members of the Board, excluding the Hemen Designees, the Independent Nominees and, for the first election of directors to the next whole numberBoard following the one year anniversary of the Effective Date only, the Centerbridge Designee, shall be elected by shareholders as provided in the New Seadrill bye-laws. The board representation rights set out in this Governance Term Sheet will be reflected in New Seadrill’s bye-laws. There will be no shareholders agreement.

Board Representation. Subject (a) So long as the sum of the number of Ordinary Shares and the number of Ordinary Shares into which the then outstanding Note may be converted, in each case, beneficially owned by the Investor, together with its Subsidiaries, is at least 5,057,952 Ordinary Shares, subject to adjustment for any share split, share dividend, recapitalization, reclassification or similar transaction of the Company made in respect of any Ordinary Shares, the Investor shall be entitled to designate one (1) director to the terms and conditions Board of this Agreementthe Company (such director, or such other individual who may be designated by the Investor from the date of this Agreementtime to time, the “Investor Director”), and the Company and each Voting Party shall take all Necessary Action arrange for the appointment or election of such Investor Director to cause, effective immediately following the Closing Date, the Board as soon as practicable after the Investor notifies the Company of its designation of the Investor Director and following receipt by the Company of all documentation requested by the Company reasonably required for the appointment of the Investor Director but in no event later than thirty (30) days after the receipt of such notification, including convening a meeting of the Board or obtaining resolutions in writing signed by all directors pursuant to the Constitution and appointing such Investor Director to the Board, who shall hold such office until the next annual general meeting in accordance with the Company’s Constitution and shall be comprised re-appointed by the Company for election at such meeting in accordance with Section 2.01(e) below, and in the case of nine (9) directorsan election, comprised of (i) the chief executive officer of the Companynominating such individual to be elected as a director as provided herein, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” using best efforts to ensure, and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company extent permitted by Applicable Law and the Company’s Constitution, recommending to the Shareholders, the election of such Investor Director to the Board in any meeting of Shareholders to elect directors, including soliciting proxies in favor of the election of the Investor Director, (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to including such nomination regarding such individual in the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, ’s notice for any meeting of Shareholders to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent elect directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (IIIiv) until the Horizon Sunset Dateif necessary, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event expanding the size of the Board is increased in accordance with applicable law order to appoint the Investor Director; provided, however, that the Investor Director candidate shall be subject to the approval of the Board, which approval shall not be unreasonably withheld, and further subject to the election by the Shareholders of the Company to the extent required by Applicable Law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole numberConstitution.

Board Representation. Subject to (a) From and after the terms Closing, and conditions of until this Agreement, from the date of this AgreementAgreement is terminated in accordance with its terms, the Company and each Voting Party the Parent shall take all Necessary Action such actions necessary to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of (i) ensure that (A) Xxxx Xxxxxxx and Xxxxxxx Xxxxxx (the chief executive officer “Fluent Legacy Stockholders”) be entitled to nominate one (1) individual for election to the Company Board (the “RSMC Director”) and (B) Xxxxxxx Xxxxx and Xxxxxxx Xxxxxxx (the “Cogint Legacy Stockholders”) be entitled to nominate one (1) individual for election to the Company Board (the “PFMB Director,” and together with the RSMC Director, including their respective successors, the “Legacy Directors”), provided that the PFMB Director shall be Xxxx Xxxxxxx until the earlier of (a) the second anniversary of the CompanyClosing and (b) Xxxx Xxxxxxx’x resignation from his position as the PFMB Director, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), elect such Legacy Directors to serve as members of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company Board until their respective successors are elected and qualified or until their earlier resignation, removal or death and (iii) three (3) director designated nominate each successor to each Legacy Director as directed by the Horizon Equityholders (Fluent Legacy Stockholders or Cogint Legacy Stockholders, as applicable. At the “Horizon Designees”)Closing, of which at least two (2) the Legacy Directors shall qualify as “independent directors” under stock exchange regulations initially be determined by a written notice delivered by the applicable Legacy Stockholders to the CompanyCompany (provided that the PFMB director shall be Xxxx Xxxxxxx). From and after the Closing DateClosing, and until this Agreement is terminated in accordance with its terms, the Horizon Equityholders Company and the Parent shall have the right, but not the obligation, take such actions necessary to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees ensure that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Company Board is shall be seven (7) directors, which number may be increased in accordance pursuant to a majority vote of the Company Board, including the PFMB Director. All remaining members of the Company Board (including any increase to the Company Board pursuant to the preceding sentence) shall be determined consistent with applicable law Law and rules and regulations of NASDAQ (including that if such remaining members of the Company’s organizational documentsCompany Board are elected by the Parent, the Topco Equityholders shall have the right to designate a number Company may avail itself of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(aany controlled company exemptions from NASDAQ corporate governance requirements), rounded up to the next whole number.

Board Representation. Subject to (a) Until the terms and conditions of this Agreement, from the date of this Agreement, the Company and each Voting Party shall take all Necessary Action to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised earliest of (i) the chief executive officer Spin-Off Date (at which time a new Shareholders Agreement as to the Company shall be entered into in accordance with the Purchase Agreement) and (ii) the date on which the IEP Group ceases to own at least 10.0% of the issued and outstanding shares of Common Stock, measured as a single class, provided, that the IEP Group Designee (as defined below) shall have resigned from the Board at least thirty (30) days prior to the IEP Entities’ (or the IEP Group’s) taking any of the actions set forth in Sections 3.02(a)(ii) through (xi) (it being understood that if the deadline for director nominations under the advance notice provisions of the Company’s by-laws expires during such thirty (30) day period, then the IEP Entities may, during such thirty (30) day period, submit to the Company a By-Law Director Nomination) (the “Board Designation Period”), the Board shall take all action necessary to nominate and recommend for election at each annual meeting of stockholders the then-serving Chief Executive Officer of IEP (or, if such individual is unwilling or unable to serve as a director of the Company, (ii) five (5) directors an individual designated by the Topco Equityholders IEP Group who is not an employee of any IEP Entity (the “Topco Designees” Replacement Designee”); provided that any that such individual shall meet the applicable requirements set forth in the Company’s bylaws and each a the Corporate Governance Principles adopted by the Board and shall be reasonably acceptable to the Company (an “Topco Acceptable Replacement Designee”), provided, that the fact that any proposed Replacement Designee is not an Acceptable Replacement Designee shall not terminate the IEP Group’s rights hereunder, and, until the end of which at least the Board Designation Period, the IEP Group shall be entitled to continue designating new Replacement Designees until one (1) shall qualify as such proposed Replacement Designee is an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders Acceptable Replacement Designee (the “Horizon DesigneesIEP Group Designee”). Such individual who is or becomes a director of the Company in accordance with the foregoing shall continue as a director of the Company until the earlier of (x) his or her death, of resignation or removal and (y) the time at which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to his or her successor is duly elected and qualified. Notwithstanding the Company. From the Closing Dateforegoing, the Horizon Equityholders Holder and its Affiliates shall have cause the right, but not the obligation, to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee individual designated or nominated pursuant to this Section 3(a) shall not shorten 3.04 to resign from the term of such Horizon Designee then-serving on Board upon the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size termination of the Board Designation Period (it being understood that such individual’s form of resignation letter that is increased in accordance with applicable law required to be executed by such individual and held by the Company’s organizational documents, Company Secretary as a condition of membership on the Topco Equityholders Board shall have be automatically effective upon the right to designate a number of directors termination of the Board which give Designation Period, as well as upon the Topco Equityholders effectiveness triggers applicable to all members of the same percentage Board). Solely for purposes of total directors on the Board as permitted to be designated pursuant to this Section 3(a3.04(a), rounded up if the IEP Entities cease to own 10.0% or more of the next whole numberthen-issued and outstanding Common Stock, the IEP Entities shall not be considered members of the IEP Group.

Board Representation. Subject (a) On or prior 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 to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of (i) the chief executive officer Directors of the CompanyCompany shall be expanded by two positions, (ii) five (5) directors designated and Michxxx X. Xxxxxx xxx John X. Xxxxx xxxll be appointed to fill the vacancies created by the Topco Equityholders (the “Topco Designees” such expansion with Mr. Xxxxx xxxignated as a Class I director and each Mr. Xxxxxx xxxignated as a “Topco Designee”)Class III director. Thereafter, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, for so long as Purchasers and the Horizon EquityholdersPermitted Transferees own, in the aggregate, Beneficially Own at least 12% the Required Interest, Purchasers shall be entitled to designate an aggregate of two directors on the Closing Amount, management slate of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable nominees to the Company, 's Board of Directors (IIthe "Purchaser Designees") two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of with MSP having the right to designate one director and MSREF III having the Horizon Designee pursuant right to this Section 3(adesignate one director) except the foregoing number of directors shall not shorten be reduced to the term of such Horizon Designee then-extent one or more Purchaser Designees have been elected to and are serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but Board of Directors and are in a class of directors not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee thencurrently standing for re-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulationselection. In the event that the size of the Board is increased in accordance with applicable law aggregate interest owned by Purchasers and the Company’s organizational documents, Permitted Transferees shall be less than the Topco Equityholders shall Required Interest but equal to or greater than the Minimum Interest and Purchasers currently have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors two Purchaser Designees serving on the Board of Directors, then Purchasers shall cause one of the two Purchaser Designees to resign within 10 Business 37 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 permitted 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 designated 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 this Section 3(aRegulation 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), rounded up to the next whole number.

Board Representation. (a) Subject to the terms and conditions of this Agreement, from the date of this AgreementSection 2.5, the Company senior member of the Equity Purchaser shall be entitled to designate one person for election to, and each Voting Party the shareholder of the Trust Preferred Purchaser shall take be entitled to designate one person to attend as a non-voting observer at all Necessary Action meetings of (and to causereceive all materials and information that voting Directors receive) (the “KKR Observer”), effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of (i) the chief executive officer of the CompanyCompany Board, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company DP&L Board and (iii) three the board of directors of any separate entity or entities formed to hold DP&L’s electricity generation, transmission and/or distribution businesses or any material portion thereof (3other than a wholly owned Subsidiary of the Company or DP&L or any of their respective wholly owned Subsidiaries) director designated by the Horizon Equityholders (collectively, the “Horizon DesigneesApplicable Boards”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable and the Company agrees, to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, extent permitted by Law to nominate (I) three (3) Horizon Designees, so long take such action as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” may be required under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate Law (A) five (5) Topco Designeesso that, so long effective as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing AmountClosing, the Company Board and the DP&L Board shall each consist of which at least one (1) eleven members and shall qualify as an “independent director” under stock exchange regulations applicable to include the CompanyKKR Representative, (B) four (4) Topco Designees, so long as to include in any slate of nominees recommended by the Topco Equityholders, in Applicable Boards for election by the aggregate, Beneficially Own at least 18% but less than 24% of shareholders the Closing AmountKKR Representative, (C) three to take such action as may be required under applicable Law to cause the initial KKR Representative to be designated to be a member of the class of the Directors on each Applicable Board which is a classified board having the longest remaining term (3) Topco Designees, so long as the Topco Equityholders, which in the aggregate, Beneficially Own at least 12% but less than 18% case of the Closing AmountCompany Board shall be the term extending until the 2003 annual meeting of shareholders), (D) two (2) Topco Designees, so long as to use its reasonable best efforts to cause the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% election of the Closing Amount KKR Representative to the Applicable Boards, including nominating such individual, or causing its Subsidiaries to nominate such individual, as appropriate, to be elected as a Director of the Applicable Boards and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in not to take any action that would cause the number of Topco Designees that the Topco Equityholders are entitled Directors constituting any Applicable Board to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Boardbe less than eleven at anyone time; provided further thatthat any KKR Representative or KKR Observer (other than those initially designated hereunder) must be reasonably satisfactory to the Company at the time of their designation hereunder; and, once provided, further, that any Person who shall have served as the Topco Equityholders, in KKR Observer shall be automatically deemed satisfactory to the aggregate, Beneficially Own less than 40% Company for designation as the KKR Representative. The KKR Observer may be changed at any time by the shareholder of the Closing Amount, none of the Topco Designees Trust Preferred Purchaser. The initial KKR Representative shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size one of the Board is increased in accordance with applicable law Xxxxxx Xxxxxxx or Xxxxx X. Xxxxxx, and the Company’s organizational documents, initial KKR Observer shall be the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole numberother.

Board Representation. Subject to (a) In accordance with the terms Company’s Certificate of Incorporation (the “Charter”), Amended and conditions of this AgreementRestated Bylaws (the “Bylaws”), from Corporate Governance Guidelines (the date of this Agreement“Corporate Governance Guidelines”) and Nominating Committee Charter (the “Nominating Committee Charter”), the Company and each Voting Party shall take all Necessary Action to causeagrees that, effective immediately following the Closing Date2008 Annual Meeting, the Board to be comprised Board, at a duly convened meeting of nine (9) directors, comprised will take the necessary action upon the recommendation of the Nominating Committee providing that: (i) the chief executive officer of the Company, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is shall be increased in accordance with applicable law by one Class II seat and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors size of the Board which give shall be adjusted appropriately; (ii) Xxx Xxxxx or another person designated by the Topco Equityholders Sun Parties and reasonably acceptable to the same percentage Board (the “Sun Designee”) shall be appointed as a director of total directors the Company effective immediately to fill the newly-created directorship (and vacancy) resulting from such increase in the size of the Board (and, for clarity, not be required to stand for election at the 2008 Annual Meeting); and (iii) the Sun Designee shall be appointed to serve as a member of the Nominating Committee. In the event that a vacancy is created on the Board at any time prior to the 2010 Annual Meeting by the death, disability, retirement or resignation of Xxx Xxxxx, the Sun Parties, the Company, the Nominating Committee and the Board shall take all such actions as permitted necessary or appropriate to result in the prompt election or appointment to the Board of a new individual designated by the Sun Parties and shall take all of the actions referred to in the immediately preceding sentence with respect to such new individual designated by the Sun Parties, as applicable. As promptly as reasonably practicable after the date hereof, the Sun Parties shall provide the Company with all such information as the Company shall reasonably request, including, without limitation, all information about the Sun Designee as would be required (including under Schedule 14A, Regulation 14A and Regulation S-K promulgated under the Securities Act of 1933, as amended, and the Exchange Act (collectively, the “Proxy Rules”)) to be designated pursuant to this Section 3(a), rounded up included in a proxy statement with respect to the next whole numbernomination and election of directors.

Board Representation. Subject (a) At the Closing, unless the Purchase Price is, at the election of the Buyer, paid all in cash, as provided in Section 1.04(b)(2)(iii), Seller shall have the right to Board representation proportionate to the terms ownership percentage represented by its holdings relative to the total outstanding shares of 2d Stock, calculated on a non-diluted basis (as hereinabove defined) and conditions rounded downward to the nearest whole number but not less than one ("Proportionate Representation"); provided, however, such representation shall be by Mark Xxxx ("Xyne") or Kevix Xxxxxxxxxx ("Xermeister") or any other person designated by the Seller and approved by 2d each in its complete discretion. Thereafter, so long as the Seller continues to hold not less than one-half of the 2d Stock issued to the Seller pursuant hereto, the Seller will be entitled to at least one seat on the Board of Directors of 2d, and at the request of the Seller, 2d shall hold meetings of its Board of Directors not less frequently than four times a year, at which management of 2d shall discuss 2d's performance, prospects and strategies. Until the Disposition Date, 2d shall also cause Dyne, Bermeister or a designee of the Seller approved by 2d to be nominated as a member of the Board of Directors of 2d as one of the nominees nominated by 2d's Board of Directors, and shall use its reasonable best efforts to cause Dyne, Bermeister or a designee of the Seller approved by 2d to be elected as such. So long as the Seller is entitled to Board representation, Seller shall also be entitled to proportionate representation, as determined by the first sentence of this AgreementSection 4.07(a), from on each committee of the date Board of Directors and on the Board of Directors and each committee of each subsidiary of 2d. At least one of Dyne, Bermeister or the designee of the Seller approved by 2d shall initially hold a Board seat with the longest remaining term prior to the next election of Directors, if the 2d Board of Directors is divided into classes of Directors having multiple-year terms expiring in successive years. Notwithstanding the foregoing, in the event of a transfer of shares of 2d Stock issued to the Seller pursuant hereto and of the rights of the Seller granted hereunder other than an assignment in accordance with Section 9.05 of this Agreement, the Company and each Voting Party shall take all Necessary Action to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of (i) the chief executive officer of the Company, (ii) five (5) directors designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the Seller's right to designate the Horizon Designee pursuant to this Section 3(a) one or more Board seats and related rights shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole number.terminate,

Board Representation. Subject Each Stockholder agrees (a) to vote its Shares to fix the terms number of directors at nine until a Remedy Event occurs and conditions thereafter to fix the number of this Agreement, from directors at the date of this Agreement, the Company number contemplated by Section 4.3 and each Voting Party shall take (b) to vote all Necessary Action to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of Shares owned by such party (i) to elect as directors, three persons nominated by the chief executive officer of the CompanyCovered Stockholders, which persons shall initially be Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, (ii) five (5) directors to elect as a director a person designated by the Topco Equityholders (the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon DesigneesBCI, so long as the Horizon EquityholdersBCI holds Investor Securities, in the aggregate, Beneficially Own at least 12% of the Closing Amount, of which at least two (2) person shall qualify as “independent directors” under stock exchange regulations applicable to the Companyinitially be Xxxxxx X. Xxxxx, (IIiii) two (2) Horizon Designeesto elect as a director a person designated jointly by NAVF and VVCF, so long as each holds Investor Securities, which person shall initially be Xxxxxxx X. Xxxxxx, (iv) to elect as a director a person designated by the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% holders of a majority of the Closing Amountshares of Series D Preferred Stock, each which person shall initially be Xxxxxxx X. Xxxxxx, (v) to elect as a director a person designated by NWI, which person shall initially be C. Xxxxxx Xxxxxxx; provided; however, that if NWI shall fail to designate such a person, the Required Holders may designate a person to fill such position; (vi) to elect as directors two independent representatives, one of which shall qualify as “independent directors” under stock exchange regulations applicable to be designated by the Company, Covered Stockholders and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who of which shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss be designated by a majority of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of eight directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a)4.1, rounded up which person shall initially be Xxxx X. Xxxxxxx, provided, however, that no independent representative shall be an Affiliate of either the Company, any of the Required Holders or the Management Stockholders and (vii) after a Remedy Event has occurred, to elect as additional directors of the next whole numberCompany such persons nominated by the Investors as is contemplated by Section 4.3 and to continue to vote for such persons (or any successors nominated by the Investors, as the case may be) as directors of the Company until the Remedy Event is cured.

Board Representation. Subject (a) At the Closing, unless the Purchase Price is, at the election of the Buyer, paid all in cash, as provided in Section 1.04(b)(2)(iii), Seller shall have the right to Board representation proportionate to the terms ownership percentage represented by its holdings relative to the total outstanding shares of 2d Stock, calculated on a non-diluted basis (as hereinabove defined) and conditions of this Agreementrounded downward to the nearest whole number but not less than one ("Proportionate Representation"); provided, from the date of this Agreementhowever, the Company and each Voting Party such representation shall take all Necessary Action to cause, effective immediately following the Closing Date, the Board to be comprised of nine by Mark Xxxx (9"Xyne") directors, comprised of or Kevix Xxxxxxxxxx (i"Xermeister") the chief executive officer of the Company, (ii) five (5) directors or any other person designated by the Topco Equityholders (the “Topco Designees” Seller and approved by 2d each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Companyin its complete discretion. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon DesigneesThereafter, so long as the Horizon EquityholdersSeller continues to hold not less than one-half of the 2d Stock issued to the Seller pursuant hereto, the Seller will be entitled to at least one seat on the Board of Directors of 2d, and at the request of the Seller, 2d shall hold meetings of its Board of Directors not less frequently than four times a year, at which management of 2d shall discuss 2d's performance, prospects and strategies. Until the Disposition Date, 2d shall also cause Dyne, Bermeister or a designee of the Seller approved by 2d to be nominated as a member of the Board of Directors of 2d as one of the nominees nominated by 2d's Board of Directors, and shall use its reasonable best efforts to cause Dyne, Bermeister or a designee of the Seller approved by 2d to be elected as such. So long as the Seller is entitled to Board representation, Seller shall also be entitled to proportionate representation, as determined by the first sentence of this Section 4.07(a), on each committee of the Board of Directors and on the Board of Directors and each committee of each subsidiary of 2d. At least one of Dyne, Bermeister or the designee of the Seller approved by 2d shall initially hold a Board seat with the longest remaining term prior to the next election of Directors, if the 2d Board of Directors is divided into classes of Directors having multiple-year terms expiring in successive years. Notwithstanding the foregoing, in the aggregate, Beneficially Own at least 12% event of a transfer of shares of 2d Stock issued to the Seller pursuant hereto and of the Closing Amount, of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% rights of the Closing Amount, each of which shall qualify as “independent directors” under stock exchange regulations applicable to the Company, and (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided that, the loss of the right to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance with applicable law and the Company’s organizational documents, the Topco Equityholders shall have the right to designate a number of directors of the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole number.Seller granted hereunder

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 to cause, effective immediately following the Closing Date, the Board to be comprised of nine (9) directors, comprised of For so long as (i) Mxxxxxx Xxxxxxx, any of his family members or any of his or their respective affiliates (collectively, the chief executive officer “Serruya Group”) (A) is a holder of a Note issued hereunder and (B) beneficially owns (as defined for purposes of Rule 13d-3 of the 1000 Xxx) in excess of 1.0% of the Common Stock of the Company, and (ii) five (5) directors designated by the Topco Equityholders (Serruya Group and the “Topco Designees” and each a “Topco Designee”), of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company and (iii) three (3) director designated by the Horizon Equityholders (the “Horizon Designees”), of which at least two (2) shall qualify as “independent directors” under stock exchange regulations applicable to the Company. From the Closing Date, the Horizon Equityholders shall have the right, but not the obligation, to nominate (I) three (3) Horizon Designees, so long as the Horizon EquityholdersBuyer Assignees, in the aggregate, Beneficially Own at least 12beneficially own (as defined for purposes of Rule 13d-3 of the 1000 Xxx) in excess of 5.0% of the Closing AmountCommon Stock of the Company (the “Representation Period”), the Nominating and Corporate Governance Committee (the “Nominating Committee”) of which at least two the Company’s Board shall nominate a Designated Nominee (2as defined below) shall qualify as “independent directors” under stock exchange regulations applicable for election to the Company, (II) two (2) Horizon Designees, so long as the Horizon Equityholders, in the aggregate, Beneficially Own Board at least 6% but less than 12% each meeting of the Closing AmountCompany’s stockholders held during the Representation Period at which directors are to be elected, each commencing with the Company’s annual meeting of which stockholders currently scheduled to be held in June 2013 (the “2013 Annual Meeting”), and the Board shall qualify as “independent directors” under stock exchange regulations applicable recommend to the Company, and stockholders that such Designated Nominee be so elected at such meeting (III) until the Horizon Sunset Date, one (1) Horizon Designee, who shall qualify as an “independent director” under stock exchange regulations applicable to the Company; provided thatcollectively, the loss of “Nomination Obligations”). The Board shall take all such actions necessary during the right Representation Period to designate the Horizon Designee pursuant to this Section 3(a) shall not shorten the term of such Horizon Designee then-serving on the Board. From the Closing Date, the Topco Equityholders shall have the right, but not the obligation, to nominate (A) five (5) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 24% of the Closing Amount, of which at least one (1) shall qualify as an “independent director” under stock exchange regulations applicable to the Company, (B) four (4) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 18% but less than 24% of the Closing Amount, (C) three (3) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 12% but less than 18% of the Closing Amount, (D) two (2) Topco Designees, so long as the Topco Equityholders, in the aggregate, Beneficially Own at least 6% but less than 12% of the Closing Amount and (E) until the Topco Sunset Date, one (1) Topco Designee; provided that, no reduction in the number of Topco Designees ensure that the Topco Equityholders are entitled to designate pursuant to this Section 3(a) shall shorten the term of any Topco Designee then-serving on the Board; provided further that, once the Topco Equityholders, in the aggregate, Beneficially Own less than 40% of the Closing Amount, none of the Topco Designees shall be required to qualify as “independent directors” under any stock exchange regulations. In the event the size of the Board is increased in accordance 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: (1) the Designated Nominee’s satisfaction of all legal and governance requirements regarding the Designated Nominee’s service as a director of the Company and (2) the fiduciary duties imposed on the directors of the Company by the Nomination Obligations. “Designated Nominee” means a person designated by Mxxxxxx Xxxxxxx (x) who is able to 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 (collectively, the “Director Qualifications”). Notwithstanding the foregoing, if the timing of the Closing at which Mxxxxxx Xxxxxxx first purchases a Note makes it impracticable for the Company to prepare and file with applicable law 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 the SEC’s Schedule 14A or the Designated Nominee fails to timely provide the Company with all information needed to prepare and file such definitive proxy statement by April 30, 2013 that it may reasonably request from the Designated Nominee, then, subject to Director Nominee’s satisfaction of the Director Qualifications and the Company’s organizational documentsother conditions of this Section 4(t), then the Nominating Committee shall recommend for election, and the Board shall elect, the Topco Equityholders Designated Nominee to the Board as soon as is reasonably practicable following the 2013 Annual Meeting to serve until the next annual meeting of stockholders at which directors are elected and until his or her successor is duly elected and qualifies and the Nomination Obligations shall commence with such next annual meeting. For purposes of this paragraph (t), the term “affiliate” shall have the right to designate a number of directors of meaning given such term in Rule 405 promulgated under the Board which give the Topco Equityholders the same percentage of total directors on the Board as permitted to be designated pursuant to this Section 3(a), rounded up to the next whole number1933 Act.