Common use of Appointment and Nomination Clause in Contracts

Appointment and Nomination. Upon the Closing (as defined in the Securities Purchase Agreement), the Company's Board will be fixed at ten (10) persons and the Company will cause the following appointments to be made: (i) Three (3) Investor Group Designees shall be appointed to the Board, with each such Investor Group Designee appointed to a separate class of directors. (ii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's nominating committee. (iii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's compensation committee. (iv) Five (5) Independent Directors shall be appointed to the Board. Thereafter, during the term of this Agreement and for so long as the Investor Group holds at least a Minimum Interest and subject to Sections 3.2(b) and 3.3, (i) the Company's nominating committee shall recommend to the Board that the Investor Group Designees be included in the slate of nominees recommended by the Board to the stockholders for election as directors at each annual meeting of stockholders for which an election is held for such class of directors, (ii) the total size of the Board shall be fixed at ten (10) persons, (iii) one (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a) or 3.2(b) shall be appointed to each of the Company's nominating committee (which committee shall be set at three (3) members consisting of the Company's Chief Executive Officer, an Investor Group Designee, and an Independent Director appointed by the Company's Chief Executive Officer) and compensation committee and (iv) in connection with each annual meeting, the Company's nominating committee shall recommend to the Board a slate of nominees which, if elected at such annual meeting, would conform with the requirements of the composition of the Board to be in effect upon the Closing, and the Board shall recommend such slate to the stockholders. In the event that any of such Investor Group Designees shall cease to serve as a director for any reason, the vacancy resulting thereby shall be filled according to the procedures described in the previous sentence.

Appointment and Nomination. Upon (a) The Company agrees that, in accordance with the Closing Company’s Amended and Restated Certificate of Incorporation (as defined in the Securities Purchase Agreement)amended from time to time, the Company's “Certificate of Incorporation”) and Third Amended and Restated Bylaws (as amended from time to time, the “Bylaws”) and Delaware law, and effective immediately following the execution of this Agreement, the Board will be fixed at ten (10) persons and the Company will cause the following appointments to be madeshall: (i) Three if there is not a vacant seat on the Board at such time to be filled by the Designee pursuant to Section 1(a)(ii), expand the size of the Board to create one (31) Investor Group Designees shall vacancy to be appointed filled by the Designee pursuant to Section 1(a)(ii); (ii) appoint the Designee (or his replacement as chosen in accordance with Section 1(d)) to fill the vacancy on the Board; and (iii) concurrent with the appointment of the Designee to the Board, with each take such Investor Group action as is necessary such that the Designee is appointed to the Board Revenue Committee; provided, that with respect to such committee appointment, the Designee is and continues to remain eligible to serve as a separate class member of directorssuch committee pursuant to the Company’s Corporate Governance Principles, applicable law and the listing standards of the New York Stock Exchange (the “NYSE”), if any, that are applicable to the composition of such a committee. The Board shall take all actions necessary to ensure that, during the Standstill Period, any new executive committee of the Board formed on or after the date of this Agreement includes the Designee; provided, that with respect to such committee appointment, the Designee is and continues to remain eligible to serve as a member of such committee pursuant to the Company’s Corporate Governance Principles, applicable law and the listing standards of the NYSE. Without limiting the foregoing, it is understood that Hill Path desires the Designee be considered for appointment to the Compensation Committee, and the Board agrees that it shall give the Designee the same due consideration for membership to any committee of the Board, including, without limitation, the Compensation Committee, as any other independent director at such time when committee appointments are considered by the Board. (b) The Designee has provided to the Company a completed D&O Questionnaire in the form provided to Hill Path by the Company prior to the execution of this Agreement. The Designee shall receive the Company’s customary new director orientation. (c) Hill Path acknowledges that, at all times while the Designee serves as a member of the Board, Hill Path shall cause the Designee to comply with all current and future policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members (or any applicable subset thereof) (the “Company Policies”), true copies of which, to the extent current, have been provided to Hill Path (and any future policies to be so provided promptly following adoption thereof), including, without limitation, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics and all trading and confidentiality obligations and guidelines (including the obligation to preserve the confidentiality of all information, whether written or oral, received in one’s capacity as a director), subject to the following: (i) notwithstanding anything to the contrary contained therein and except to the extent the Board reasonably determines is required by applicable law, no Company Policy (whether currently in effect or adopted after the date hereof and including the Company’s Securities Trading Policy) shall apply to Hill Path and the Hill Path Affiliates (as defined below) from after the time the Designee ceases to be a member of the Board, but, for the avoidance of doubt, Hill Path acknowledges and agrees that (A) it is aware, and will advise each of the Hill Path Affiliates and other representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws may prohibit any person who directly or indirectly has received from an issuer material, non-public information from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities and (B) certain of Hill Path’s and the Designee’s obligations set forth in that certain Undertaking Agreement, by and among the Designee, the Company and Hill Path, dated as of the date hereof (the “Undertaking Agreement”), or in the Director Confidentiality Agreement referred to in the Undertaking Agreement shall continue after the time Designee ceases to be a member of the Board; (ii) One (1) Investor Group subject to and in accordance with the terms of the Undertaking Agreement, the Designee appointed is permitted to and may provide information to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's nominating committee.Hill Path Associates (as defined therein); (iii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to General Counsel will consider any requests for pre-clearance under the Company's compensation committee.’s Securities Trading Policy or any similar policy in good faith; and (iv) Five all future Company Policies, including any amendment or supplement to any existing Company Policies, shall (5A) Independent Directors shall be appointed adopted in good faith and (B) not be inconsistent in any material respect with Hill Path's rights under this Agreement or the Undertaking Agreement (except to the Board. Thereafterextent required by applicable law). (d) If, during the term of this Agreement and for so long Standstill Period (as the Investor Group holds at least a Minimum Interest and subject to Sections 3.2(b) and 3.3defined below), (i) the Company's nominating committee shall recommend Designee resigns (including by reason of a change in principal business occupation or position or service on additional boards), is removed or refuses to serve, or if the Designee is unable to serve due to death or disability, in each case provided that the Designee is otherwise then entitled to be appointed, to be nominated or to serve, as applicable, as a director of the Company pursuant to this Agreement, then Hill Path shall, in its sole discretion, select a replacement director to serve as the Designee who is (A) reasonably acceptable to the Board that the Investor Group Designees (such acceptance not to be included in the slate of nominees recommended by the Board to the stockholders for election unreasonably withheld, conditioned or delayed) and who shall (B) (x) qualify as directors at each annual meeting of stockholders for which an election is held for such class of directors, (ii) the total size independent director of the Board shall be fixed at ten (10) persons, (iii) one (1) Investor Group Designee appointed to Company under the Board pursuant to Section 3.2(a) or 3.2(b) shall be appointed to each listing rules of NYSE and under the Company's nominating committee (which committee shall be set at three (3) members consisting of the Company's Chief Executive Officer, an Investor Group Designee, ’s Corporate Governance Guidelines and an Independent Director appointed by the Company's Chief Executive Officer) and compensation committee and (iv) in connection with each annual meeting, the Company's nominating committee shall recommend to the Board a slate of nominees which, if elected at such annual meeting, would conform with the requirements of the composition of the Board to be in effect upon the Closing, and the Board shall recommend such slate to the stockholders. In the event that any of such Investor Group Designees shall cease otherwise qualify to serve as a director for any reasonunder the Company’s Bylaws and Corporate Governance Guidelines and (y) provide a completed D&O Questionnaire in the form provided to Hill Path by the Company prior to the execution of this Agreement, and thereafter such individual shall be promptly appointed to the Board to fill the remaining term of the Designee and shall be considered to be a “Designee” under this Agreement. (e) Notwithstanding anything to the contrary in this Agreement, the vacancy resulting thereby Company’s obligations under this Agreement shall terminate immediately if either (i) Hill Path ceases to satisfy the Minimum Condition (as defined below) or (ii) the Board reasonably determines that Hill Path breached any of the terms of this Agreement or of the Undertaking Agreement, in each case, in any material respect, and such breach is not cured within fifteen (15) days after receipt by Hill Path of written notice from the Company specifying such breach. In furtherance of this Section 1(e), the Designee will, prior to and as a condition to the Designee’s appointment to the Board, execute an irrevocable resignation letter in the form of Exhibit B (the “Irrevocable Resignation Letter”) and deliver it to the Company. Notwithstanding the foregoing, in the case of Hill Path ceasing to satisfy the Minimum Condition, the Irrevocable Resignation Letter shall become effective only after the Board has given due consideration to the views expressed by the Designee with respect to such resignation and the Board has concluded that the Designee should resign. As used herein, “Minimum Condition” means, collectively, the beneficial ownership by Hill Path (together with its Affiliates or Associates (as such terms are defined in Rule 12b-2 under the Exchange Act; provided, that the term “Associates” in such definition shall be filled according deemed to be preceded by the procedures described word “controlled”) (collectively (with Hill Path) and individually, the “Hill Path Affiliates”)) of an aggregate Net Long Position (as defined below) of 6,791,203 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments); and “Net Long Position” means such shares of Common Stock beneficially owned, directly or indirectly, that constitute such person’s net long position as defined in Rule 14e-4 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), mutatis mutandis, but the “long position” of such person for this purpose shall not include any shares as to which such person does not have the right to vote or direct the vote or as to which such person has entered into a derivative or other agreement, arrangement or understanding that ▇▇▇▇▇▇ or transfers, in whole or in part, directly or indirectly, any of the economic consequences of ownership of such shares. Hill Path shall notify the Company promptly in the previous sentenceevent (and in no less than three (3) business days after) Hill Path (together with the Hill Path Affiliates) ceases to satisfy the Minimum Condition (based on the number of outstanding shares of Common Stock as most recently disclosed by the Company on the cover of a publicly filed Form 10-K or Form 10-Q or otherwise communicated in writing by the Company to Hill Path).

Appointment and Nomination. Upon (a) The Company agrees that, in accordance with the Closing Company’s Restated Certificate of Incorporation and by-laws and Delaware law, and effective as of the date of the next meeting of the Board (as defined in the Securities Purchase Agreementand prior to taking any other formal action at such meeting), the Company's Board will which meeting shall be fixed at held not later than ten (10) persons and business days after the Company will cause date hereof, the following appointments to be madeBoard shall: (i) Three if there are insufficient vacant seats on the Board at such time to be filled by the Designees pursuant to Section 1(a)(ii), expand the size of the Board (3including by amending the Company’s by-laws) Investor Group to create a sufficient number of vacant seats to be filled by the Designees shall be appointed pursuant to the Board, with each such Investor Group Designee appointed to a separate class of directors.Section 1(a)(ii); (ii) One appoint the Designees (1other than in the case of the refusal or inability of any such person to serve, in which case the Board shall appoint a substitute chosen in accordance with Section 1(d)) Investor Group Designee appointed to fill the vacancies on the Board; Subject to Section 1(b), the Company shall include the Designees (other than in the case of the refusal or inability of any such person to serve, in which case the Board shall include a substitute chosen in accordance with Section 1(d)) as nominees to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's nominating committee. (iii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's compensation committee. (iv) Five (5) Independent Directors shall be appointed to the Board. Thereafter, during the term of this Agreement and for so long as the Investor Group holds at least a Minimum Interest and subject to Sections 3.2(b) and 3.3, (i) the Company's nominating committee shall recommend to the Board that the Investor Group Designees be included in on the slate of nominees recommended by the Board in the Company’s proxy statement and on its proxy card relating to the stockholders 2017 Annual Meeting and shall use its reasonable best efforts (which shall include the solicitation of proxies) to obtain the election of the Designees at the 2017 Annual Meeting (it being understood that such efforts shall not be less than the efforts used by the Company to obtain the election of any other independent director nominee nominated by it to serve as a director at the 2017 Annual Meeting). (b) As a condition to the appointment of each Designee to the Board and any subsequent nomination for election as directors a director of the Company at the 2017 Annual Meeting, such Designee shall have provided to the Company a completed D&O Questionnaire in the form provided to J▇▇▇ by the Company prior to the execution of this Agreement. As a further condition to each annual meeting Designee’s nomination for election as a director of stockholders the Company at the 2017 Annual Meeting, such Designee shall have, as promptly as practicable upon request of the Company, provided (i) an executed consent to be named as a nominee in the Company’s proxy statement for which an election is held for such class of directorsthe 2017 Annual Meeting and to serve as a director if so elected, (ii) any information required to be or customarily disclosed for all applicable directors, candidates for directors, and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, (iii) information in connection with assessing eligibility, independence and other criteria applicable to all outside directors or satisfying compliance and legal obligations, (iv) such written consents as may be necessary for the total conduct of the Company’s standard vetting procedures applicable to all outside directors and the execution of any documents required by the Company of all of its directors to assure compliance with the matters referenced in Section 1(c), and (v) such other information as reasonably requested by the Company from time to time with respect to such Designee. (c) At all times while serving as a member of the Board, each Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee Board members, including, without limitation, the Company’s Corporate Governance Principles, Code of Conduct and all trading and confidentiality obligations and guidelines (including the obligation to preserve the confidentiality of all information, whether written or oral, received in one’s capacity as a director), provided, however, that the Company shall not amend any such policies, procedures, processes, codes, rules, standards or guidelines in any manner that would disqualify any Designee on the basis of any agreement between J▇▇▇ and such Designee existing and provided to the Company, its counsel or other representatives before the execution of this Agreement. Each Designee shall receive the Company’s customary new director orientation. (d) If, during the Standstill Period (as defined below), (i) any Designee resigns (including by reason of a change in principal business occupation or position or service on additional boards), or refuses to serve, or if any Designee is unable to serve due to death or disability, in each case provided that such Designee is otherwise then entitled to be appointed, to be nominated or to serve, as applicable, as a director of the Company pursuant to this Agreement, then, subject to the conditions in Section 1(b), the Company and J▇▇▇ shall cooperate in good faith to identify and select a replacement director or directors, as applicable, who is mutually acceptable to each party hereto (acting reasonably) and who shall (A) be independent of J▇▇▇ and J▇▇▇ Affiliates, (B) qualify as an independent director of the Company under the listing rules of NYSE and under the Company’s Corporate Governance Principles and otherwise qualify to serve as a director under the Company’s by-laws and Corporate Governance Principles and (C) provide the items required to be provided pursuant to Section 1(b), and thereafter such individual shall be promptly appointed to the Board to fill the remaining term of the applicable Designee and shall considered to be a “Designee” under this Agreement. (e) Notwithstanding anything to the contrary in this Agreement, the Company’s obligations under this Agreement shall terminate immediately, and each of the Designees shall promptly offer to resign from the Board and any committee thereof (and, if requested by the Company, promptly deliver a written resignation to the Board (which shall provide for such Designees’ immediate resignation) it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignations), and the Company shall have no further obligation with respect to the Designees under this Section 1, if J▇▇▇ ceases to comply with or breaches any of the terms of this Agreement or of the Confidentiality Agreement (as defined below) in any material respect and, if capable of being cured, such material breach or failure has not been cured within fifteen (15) days after receipt by J▇▇▇ of written notice from the Company specifying such material breach or failure. In addition to, and without limiting the foregoing, the Company’s obligations under this Agreement shall terminate immediately with respect to M▇. ▇▇▇▇▇▇▇ (in his capacity as a Designee), and M▇. ▇▇▇▇▇▇▇ shall promptly offer to resign from the Board and any committee thereof (and, if requested by the Company, promptly deliver a written resignation to the Board (which shall provide for his immediate resignation) it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation), and the Company shall have no further obligation with respect to M▇. ▇▇▇▇▇▇▇ (in his capacity as a Designee) under this Section 1, if M▇. ▇▇▇▇▇▇▇ ceases to comply with or breaches any of the terms of that certain Cooperation Agreement, dated as of February 20, 2017, by and between the Company and M▇. ▇▇▇▇▇▇▇ (the “Trapani Agreement”) in any material respect and, if capable of being cured, such material breach or failure has not been cured within fifteen (15) days after receipt by M▇. ▇▇▇▇▇▇▇ of written notice from the Company specifying such material breach or failure. In furtherance of this Section 1(e), each of the Designees will, prior to and as a condition to such Designee’s appointment to the Board, execute an irrevocable resignation letter in the form of Exhibit B (the “Irrevocable Resignation Letter”) and deliver it to the Company. (f) The Company agrees that, in accordance with the Company’s Restated Certificate of Incorporation and by-laws and Delaware law, the Board shall until the end of the Standstill Period (as defined below) (i) not increase the size of the Board shall be fixed at ten (10) persons, (iii) one (1) Investor Group Designee appointed to or fill any vacancies if doing so would result in the Board having a number of members in excess of twelve (12) directors (except that, upon appointment of the Designees pursuant to Section 3.2(a) or 3.2(b) shall be appointed to each of the Company's nominating committee (which committee shall be set at three (3) members consisting of the Company's Chief Executive Officer, an Investor Group Designee, and an Independent Director appointed by the Company's Chief Executive Officer) and compensation committee and (iv) in connection with each annual meeting1(a), the Company's nominating committee shall recommend to Board may increase the Board a slate of nominees which, if elected at such annual meeting, would conform with the requirements of the composition size of the Board to be up to thirteen (13) directors) and (ii) nominate no more than twelve (12) individuals for election at the 2017 Annual Meeting, including the Designees (if the Designees are so nominated pursuant to this Agreement); provided, that, in effect upon the Closingcase of each of clauses (i) and (ii), the Company shall be permitted to increase the size of the Board and fill any resulting vacancies, and subsequently nominate such additional individuals, in order to accommodate the appointment to the Board and subsequent nomination of (x) a chief executive officer hired by the Company with the Board’s approval after the appointment of the Designees and (y) one or more additional directors in connection with, or as a result of, a bona fide strategic transaction unanimously approved by the Board after the appointment of the Designees, the terms of which require such appointment or nomination. The Company also agrees that the Board shall not waive or amend, at any time prior to the Company’s 2018 Annual Meeting of Stockholders, the requirement set forth in Section 2.02 of the Company’s by-laws or Section 1.b of the Company’s Corporate Governance Principles that, in order to qualify for election, directors be younger than 74 years when so elected, except that the Board shall be permitted to waive such requirements in accordance with the Company’s by-laws and Corporate Governance Principles in order to permit C▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ to serve as a director until the Company’s 2018 Annual Meeting of Stockholders, but shall not be permitted to nominate M▇. ▇▇▇▇▇▇▇ to serve from or after the Company’s 2018 Annual Meeting of Stockholders. (g) The Board shall appoint M▇. ▇▇▇▇▇▇▇ to (i) any committee of the Board that is primarily responsible for overseeing the Company’s search for a new chief executive officer and (ii) the Nominating/Corporate Governance Committee. The Board shall not remove or permit the removal of M▇. ▇▇▇▇▇▇▇ from any such committee of the Board, other than in connection with the death or resignation of such director from the Board and subsequent appointment of his or her substitute chosen in accordance with Section 1(d) (who shall also have the right to be appointed to such committees), and the Board shall recommend provide such slate director with the same opportunity as all other members of the applicable committee to participate in the deliberations of such committee. (h) J▇▇▇ acknowledges, on behalf of itself and the J▇▇▇ Affiliates, that the Designees shall have all of the rights and obligations, including fiduciary duties to the Company and its stockholders. In the event that any , of such Investor Group Designees shall cease to serve as a director for any reason, under applicable law and the vacancy resulting thereby shall be filled according to Company’s organizational documents while such Designees are serving on the procedures described in the previous sentenceBoard.

Appointment and Nomination. Upon (a) The Company agrees that, in accordance with the Company’s Amended and Restated Certificate of Incorporation (as amended from time to time, the “Certificate of Incorporation”) and Third Amended and Restated Bylaws (as amended from time to time, the “Bylaws”) and Delaware Law, and effective immediately following the later of the Closing and the Company’s 2019 annual meeting of stockholders, the Board shall (i) if there are not sufficient vacant seats on the Board at such time to be filled by the Hill Path Designees pursuant to Section 1(b), expand the size of the Board to create the number of vacancies to be filled by the Hill Path Designees pursuant to Section 1(b) and (ii) subject to Sections 1(d) and 1(e), appoint ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (or his replacement as chosen in accordance with Section 1(f)) to fill a vacancy on the Board. (b) From and after the later of the Closing and the Company’s 2019 annual meeting of stockholders, subject to the terms and conditions of this Section 1, Hill Path shall have the right (but not the obligation) to designate a number of individuals as Directors (each, a “Hill Path Designee”) equal to (i) the quotient obtained by dividing (A) the Total Share Ownership of the Hill Path Affiliates divided by (B) the total number of shares of Common Stock then outstanding multiplied by (ii) the then-current number of authorized directorships on the Board (rounded up or down, as applicable, to the nearest whole number); provided, that the number of Hill Path Designees shall not exceed three (3). It is understood and agreed that ▇▇. ▇▇▇▇▇ ▇. Ross is a ▇▇▇▇ Path Designee. The Company will recommend, support and solicit proxies for the election of the Hill Path Designees in the same manner as it recommends, supports and solicits proxies for the election of the Company’s other Director nominees. (c) The Company agrees that at all times at least one (1) Hill Path Designee shall be appointed to each committee of the Board (as defined determined by Hill Path and approved by the Nominating and Corporate Governance Committee of the Board (“NCGC”), such approval not to be unreasonably withheld); provided, that with respect to any such committee appointment, each Hill Path Designee is and continues to remain eligible to serve as a member of such committee pursuant to applicable Law and the listing standards of the Exchange, if any, that are applicable to the composition of such a committee. The Board shall take all actions necessary to ensure that the Hill Path Designees have proportional representation (but no less than one Hill Path Designee) on any executive committee of the Board formed on or after the date of this Agreement; provided, that with respect to such committee appointment, each Hill Path Designee is and continues to remain eligible to serve as a member of such committee pursuant to applicable Law and the applicable listing standards of the Exchange. Each Hill Path Designee may attend any meeting of any committee on a non-voting basis, if such attendance would not present an actual or potential conflict of interest for such Hill Path Designee in the Securities Purchase good faith opinion of the applicable committee. (d) Each Hill Path Designee shall, at the time of his or her nomination or appointment as a Director and at all times thereafter until such individual ceases to serve as a Director: (i) not be involved in any of the events enumerated in Item 2(d) or Item 2(e) of Schedule 13D under the Exchange Act; and (ii) not be an employee, officer, or director of, or consultant to, or be receiving any compensation or benefits from, any Person described in clause (a) of the definition of Restricted Entity (unless otherwise agreed to by the NCGC). Each Hill Path Designee (other than ▇▇▇▇▇ ▇▇▇▇) shall be interviewed by the NCGC on the same basis as any other new candidate for appointment or election to the Board and approved by the NCGC, such approval not to be unreasonably withheld. Not more than two (2) Hill Path Designees may be a Hill Path Affiliated Director, and any other Hill Path Designee that is not a Hill Path Affiliated Director shall qualify as independent under applicable Exchange rules. Each new Hill Path Designee shall provide to the Company a completed D&O Questionnaire in the form then-used by the Company and shall consent to customary background checks and credit reviews by the Company. Each new Hill Path Designee shall receive the Company’s customary new Director orientation and shall be required to enter into the Company’s form of Director Confidentiality Agreement. (e) Hill Path acknowledges that, at the time of his or her appointment as a Director and at all times while any Hill Path Affiliated Director serves as a member of the Board, each such Hill Path Affiliated Director shall, and Hill Path shall cause each such Hill Path Affiliated Director to, comply with all current and future policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members (or any applicable subset thereof) (the “Company Policies”) (and any future policies to be so provided promptly following adoption thereof), including, without limitation, the Company's Board will be fixed at ten ’s Corporate Governance Guidelines, Code of Business Conduct and Ethics and all trading and confidentiality obligations and guidelines (10) persons and including the Company will cause obligation to preserve the following appointments confidentiality of all information, whether written or oral, received in one’s capacity as a Director), subject to be madethe following: (i) Three notwithstanding anything to the contrary contained therein and except to the extent the Board reasonably determines is required by applicable Law, no Company Policy (3whether currently in effect or adopted after the date hereof and including the Company’s Securities Trading Policy) Investor Group Designees shall apply to a Hill Path Designee from after the time such Hill Path Designee ceases to be appointed to a member of the Board, with but, for the avoidance of doubt, Hill Path acknowledges and agrees that (A) it is aware, and will advise each of the Hill Path Affiliates and other representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws may prohibit any Person who directly or indirectly has received from an issuer material, non-public information from purchasing or selling securities of such Investor Group Designee appointed issuer or from communicating such information to any other Person under circumstances in which it is reasonably foreseeable that such Person is likely to purchase or sell such securities and (B) certain of Hill Path’s and the Hill Path Affiliated Director’s obligations set forth in the Undertaking Agreement, or in the Director Confidentiality Agreement referred to in the Undertaking Agreement shall continue after the time a separate class Hill Path Affiliated Director ceases to be a member of directors.the Board; (ii) One subject to and in accordance with the terms of the Undertaking Agreement, the Hill Path Affiliated Directors are permitted to and may provide information to the Hill Path Associates (as defined therein); (iii) the General Counsel will consider any requests for pre-clearance under the Company’s Securities Trading Policy or any similar policy in good faith; and (iv) all future Company Policies, including any amendment or supplement to any existing Company Policies, shall (A) be adopted in good faith and (B) not be inconsistent in any material respect with Hill Path’s rights under this Agreement, the Undertaking Agreement or any other agreement to which the Company and Hill Path are party (except to the extent required by applicable law). (f) If, prior to the termination of this Agreement, (i) a Hill Path Designee resigns (including by reason of a change in principal business occupation or position or service on additional boards), is removed or refuses to serve, or if a Hill Path Designee is unable to serve due to death or disability, in each case provided that such Hill Path Designee is otherwise then entitled to be appointed, to be nominated or to serve, as applicable, as a Director of the Company pursuant to this Agreement, then Hill Path may, in its sole discretion, select a replacement Director to serve as a Hill Path Designee who is (A) reasonably acceptable to the NCGC (such acceptance not to be unreasonably withheld, conditioned or delayed) and who shall (B) be permitted to serve as a Director pursuant to this Section 1) Investor Group Designee , and thereafter such individual shall be promptly appointed to the Board pursuant to Section 3.2(a)(i) fill the remaining term of such Hill Path Designee and shall be appointed considered to the Company's nominating committeebe a “Hill Path Designee” under this Agreement. (iiig) One (1) Investor Group Designee appointed Notwithstanding anything to the Board pursuant to Section 3.2(a)(i) shall be appointed to contrary in this Agreement, the Company's compensation committee. (iv) Five (5) Independent Directors ’s obligations under this Section 1 shall be appointed to the Board. Thereafter, during the term of this Agreement and for so long as the Investor Group holds at least a Minimum Interest and subject to Sections 3.2(b) and 3.3, terminate immediately if either (i) Hill Path ceases to satisfy the Company's nominating committee shall recommend to the Board that the Investor Group Designees be included in the slate of nominees recommended by the Board to the stockholders for election as directors at each annual meeting of stockholders for which an election is held for such class of directorsMinimum Condition, (ii) the total size consummation of the Board shall be fixed at ten (10a Transfer to a Hill Path Stake Permitted Transferee in accordance with Section 4(b)(i) persons, or (iii) one any Hill Path Affiliate is determined by a court of competent jurisdiction to have breached any of the terms of this Agreement or the Undertaking Agreement, in each case, in any material respect (1the “Material Terms”), and such breach is not cured within thirty (30) Investor Group days after receipt by Hill Path of written notice from the Company specifying such breach. In furtherance of this Section 1(g), each Hill Path Designee appointed will, prior to and as a condition to such Hill Path Designee’s appointment to the Board pursuant Board, execute an irrevocable resignation letter in the form of Exhibit B (the “Irrevocable Resignation Letter”) and deliver it to Section 3.2(a) or 3.2(b) shall be appointed to each the Company. Notwithstanding the foregoing, in the case of the Company's nominating committee ’s obligations under this Section 1 terminating or a decrease in the number of Hill Path Designees that Hill Path is entitled to nominate in accordance with Section 1(b) (which committee including as a result of a termination of this Agreement in accordance with its terms), the Irrevocable Resignation Letter shall become effective only after the NCGC has concluded that the applicable Hill Path Designee(s) should resign. As used herein, “Minimum Condition” means the Total Share Ownership of Hill Path (together with its Affiliates or “Associates” (as such term is defined in Rule 12b-2 under the Exchange Act; provided, that the term “associates” in such definition shall be set deemed to be preceded by the word “controlled”, as such term is defined in Rule 12-b-2 under the Exchange Act) (collectively with Hill Path, the “Hill Path Affiliates”)) is at least 5.0% of the total number of shares of Common Stock then outstanding. Hill Path shall notify the Company promptly in the event (and in no less than three (3) members consisting Business Days after) the Hill Path Affiliates cease to satisfy the Minimum Condition. For purposes of calculating the Company's Chief Executive OfficerMinimum Condition, an Investor Group Designeethe total number of shares of Common Stock then outstanding at any time (x) shall be based on the number of shares of Common Stock outstanding as most recently disclosed by the Company on the cover of a publicly filed Form 10-K or Form 10-Q, and an Independent Director appointed or (y) shall be otherwise communicated in writing by the Company to Hill Path, either in response to a request from Hill Path or as separately initiated by the Company's Chief Executive Officer) and compensation committee and (iv) in connection with each annual meeting, the Company's nominating committee shall recommend to the Board a slate of nominees which, if elected at such annual meeting, would conform with the requirements of the composition of the Board to be in effect upon the Closing, and the Board shall recommend such slate to the stockholders. In the event that any of such Investor Group Designees shall cease to serve as a director for any reason, the vacancy resulting thereby shall be filled according to the procedures described in the previous sentence.

Appointment and Nomination. Upon the Closing (as defined in the Securities Purchase Agreement), the Company's Board of Directors will be fixed at ten (10) persons and the Company will cause the following appointments to be made: (i) Three (3) Investor Group Designees shall be appointed to the BoardCompany's Board of Directors, with each such Investor Group Designee appointed to a separate class of directors. (ii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's nominating committee. (iii) One (1) Investor Group Designee appointed to the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's compensation committee. (iv) Five (5) Independent Directors shall be appointed to the Board. Thereafter, during the term of this Agreement and for so long as the Investor Group holds at least a Minimum Interest and subject to Sections Section 3.2(b) and 3.3), (i) the Company's nominating committee shall recommend to the Company's Board of Directors that the Investor Group Designees be included in the slate of nominees recommended by the Board to the stockholders for election as directors at each annual meeting of stockholders for which an election is held for such class of directors, (ii) the total size of the Company's Board of Directors shall be fixed at ten (10) persons, (iii) one (1i) Investor Group Designee appointed to the Board pursuant to Section 3.2(a) or 3.2(b) shall be appointed to each of the Company's nominating committee (which committee shall be set at three (3) members consisting of the Company's Chief Executive Officer, an Investor Group Designee, and an Independent Director appointed by the Company's Chief Executive Officer) and compensation committee and (iv) in connection with each annual meeting, the Company's nominating committee shall recommend to the Company's Board of Directors a slate of nominees which, if elected at such annual meeting, would conform with the requirements of the composition of the Board to be in effect upon the Closing, and the Board shall recommend such slate to the stockholders. In the event that any of such Investor Group Designees shall cease to serve as a director for any reason, the vacancy resulting thereby shall be filled according to the procedures described in the previous sentence.

Appointment and Nomination. Upon (a) The Company hereby represents and warrants to BlueMountain that, effective immediately after the Closing (as defined in the Securities Purchase Agreement), the Company's Board will be fixed at ten (10) persons execution and the Company will cause the following appointments to be madedelivery hereof: (i) Three (3) Investor Group Designees shall be appointed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ has resigned from the Board, with each such Investor Group Designee appointed to a separate class of directors.Company Board and all committees thereof and ▇▇▇▇▇▇▇ has been seated in the vacancy on the Company Board resulting therefrom; and (ii) One (1) Investor Group Designee appointed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ has resigned from the Utility Board pursuant to Section 3.2(a)(i) shall be appointed to and all committees thereof and ▇▇▇▇▇▇▇ has been seated in the Company's nominating committeevacancy on the Utility Board resulting therefrom. (iiib) One (1) Investor Group Designee appointed Each of the Company Board and the Utility Board agrees to promptly appoint ▇▇▇▇▇▇▇ to appropriate committees of the Board pursuant to Section 3.2(a)(i) shall be appointed to the Company's compensation committeeapplicable Board, as determined in such Board’s reasonable discretion. (ivc) Five The Company shall include a proposal to amend its Restated Articles of Incorporation (5the “Charter”) Independent Directors shall be appointed to increase the maximum size of the Company Board to 15 members in the joint proxy statement of the Company and the Utility and on the joint proxy card of the Company and the Utility relating to the Board. Thereafter, during 2019 Annual Meeting and shall use its reasonable best efforts (which shall include the term solicitation of this Agreement and for proxies) to obtain the requisite shareholder vote required to so long as amend the Investor Group holds at least a Minimum Interest and subject Charter (it being understood that such efforts shall not be less than the efforts used by the Company to Sections 3.2(b) and 3.3, (i) obtain the Company's nominating committee shall recommend requisite vote required to the Board that the Investor Group Designees be approve any other proposal included in the slate joint proxy statement of nominees the Company and the Utility and on the joint proxy card of the Company and the Utility relating to the 2019 Annual Meeting). (d) The Company shall include ▇▇▇▇▇▇▇ as a nominee for election to the Company Board at the 2019 Annual Meeting recommended by the Company Board in the joint proxy statement of the Company and the Utility and on the joint proxy card of the Company and the Utility relating to the stockholders 2019 Annual Meeting and shall use its reasonable best efforts (which shall include the solicitation of proxies) to obtain the election of ▇▇▇▇▇▇▇ to the Company Board at the 2019 Annual Meeting (it being understood that such efforts shall not be less than the efforts used by the Company to obtain the election of any other nominee nominated for election to the Company Board at the 2019 Annual Meeting). (e) The Utility shall include ▇▇▇▇▇▇▇ as directors a nominee for election to the Utility Board at each annual meeting of stockholders for which an election is held for such class of directors, (ii) the total size 2019 Annual Meeting recommended by the Utility Board in the joint proxy statement of the Company and the Utility and on the joint proxy card of the Company and the Utility relating to the 2019 Annual Meeting and shall use its reasonable best efforts (which shall include the solicitation of proxies) to obtain the election of ▇▇▇▇▇▇▇ to the Utility Board at the 2019 Annual Meeting (it being understood that such efforts shall not be less than the efforts used by the Utility to obtain the election of any other nominee nominated for election to the Utility Board at the 2019 Annual Meeting), and the Company shall vote or cause to be voted all of the voting Securities (as defined below) of the Utility beneficially owned by the Company in favor of the election of ▇▇▇▇▇▇▇ to the Utility Board at the 2019 Annual Meeting. (f) The Company and the Utility shall cause the 2019 Annual Meeting to be held as promptly as practicable following the execution and delivery of this Agreement, it being understood that in no event shall the 2019 Annual Meeting be held prior to June 1, 2019. (g) In consultation with BlueMountain, the Nominating and Governance Committee of the Company Board shall be fixed at ten (10) personsselect in good faith, (iii) one (1) Investor Group Designee appointed as promptly as practicable following the execution and delivery of this Agreement, an additional person to the Board pursuant to Section 3.2(a) or 3.2(b) shall be appointed to each of the Boards who, in the Company Board’s reasonable discretion, (i) has clean energy/clean energy technology expertise (whether leading a business whose primary purpose is to advance or support clean energy/clean energy technology (excluding nuclear power) or acting as a recognized expert or policy maker who has publicly advocated for clean energy/clean energy technology), it being understood that “clean energy/clean energy technology expertise” shall include, without limitation, expertise related to storage and network distribution in the clean energy space and other similar expertise, (ii) is a resident of the State of California or otherwise has deep ties to the State of California (as evidenced by having close relationships and support of key California decision makers and influencers in clean energy), and (iii) brings demonstrated domain expertise relating to the achievement of California’s clean energy goals (such additional person, the “Renewable Designee”), provided, that in connection with the process of selecting the Renewable Designee, the Company's nominating committee (which committee , the Utility and each of the Boards shall be set give good faith consideration to those persons nominated in the Notice by BMCA for election to the Company Board at three (3the 2019 Annual Meeting as the Renewable Designee, and the Company, the Utility and the applicable Board shall appoint the Renewable Designee to each of the Boards as promptly as practicable following his or her selection in accordance with this Section 1(g), subject, in the case of his or her appointment to the Company Board, to approval of the Charter amendment contemplated by Section 1(c) members consisting by the shareholders of the Company's Chief Executive Officer; provided, that, for the avoidance of doubt, the Parties acknowledge and agree that the Renewable Designee cannot be appointed to the Company Board prior to the 2019 Annual Meeting. (h) If ▇▇▇▇▇▇▇ fails to be elected to either Board at the 2019 Annual Meeting, the Nominating and Governance Committee of the Company Board shall select in good faith, as promptly as practicable, a person to fill the vacancy resulting therefrom who, in the Company Board’s reasonable discretion, has senior management level experience at an Investor Group electric utility of comparable scope and size to the Company and the Utility (the “Utility Designee”), and an Independent Director appointed by the Company's Chief Executive Officer, the Utility and the applicable Board shall appoint the Utility Designee to each of the Boards as promptly as practicable following his or her selection in accordance with this Section 1(h). (i) and compensation committee and If the Renewable Designee is not promptly appointed in accordance with Section 1(g), ceases to serve on either of the Boards as a result of his or her death or incapacity at any time prior to the 2020 Annual Meeting, fails to be elected to either Board at the 2019 Annual Meeting (ivif nominated for election at the 2019 Annual Meeting) in connection with each annual meetingor is otherwise removed from either Board, the Company's nominating committee , the Utility (if applicable) and the applicable Board shall recommend to promptly, subject, in the Board a slate of nominees which, if elected at such annual meeting, would conform with the requirements case of the composition Company Board, to approval of the Board to be in effect upon Charter amendment contemplated by Section 1(c) by the Closingshareholders of the Company, and the Board shall recommend such slate to the stockholders. In the event that any of such Investor Group Designees shall cease to serve as a director for any reason, fill the vacancy resulting thereby therefrom taking into account the attributes set forth in Section 1(g)(i) through (iii). (j) Without limiting any other provision herein, (i) the Company shall be filled according cause the Utility and the Utility Board to comply with the procedures described terms of this Agreement and (ii) each of the Company, the Utility and the Boards shall take all reasonable actions under its control as promptly as practicable in order to accomplish the previous sentenceactions contemplated by this Section 1.