Common use of Board Approvals Clause in Contracts

Board Approvals. At a duly held meeting on August 13, 2009, the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party and the Transactions applicable to the Company and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the Offer, are in the best interests of the Company and the Company’s Subsidiaries. Pursuant to and in accordance with Article TENTH of the Certificate of Incorporation, the Disinterested Directors (as defined in the Certificate of Incorporation) have unanimously and expressly approved this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement and the Prepackaged Plan and the transactions contemplated herein and therein, including, without limitation, the full exercise of (1) all rights, including the preemptive rights set forth in Article V of the Stockholders Agreement, of the Investor under the terms of the Stockholders Agreement, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved and recommended to the Company’s stockholders, each of the Certificate of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred with, the Company’s reliance on the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Shares.

Board Approvals. At The Special Committee, at a meeting duly held meeting on August 13called and held, 2009has unanimously (i) determined that each of the Agreement, the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party Offer and the Transactions applicable to the Company and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the OfferMerger, are advisable, fair to and in the best interests of the stockholders of the Company and (ii) voted to recommend to the Company’s Subsidiaries. Pursuant to and in accordance with Article TENTH Company Board of Directors that the Certificate Company Board of Incorporation, the Disinterested Directors (as defined in the Certificate of Incorporation) have unanimously and expressly approved approve this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement and the Prepackaged Plan Transactions and recommend that the stockholders of the Company accept the Offer, tender their Shares to the Purchaser pursuant to the Offer, and approve and adopt this Agreement and the transactions contemplated herein Merger, and therein, including, without limitation, the full exercise of (1) all rights, including the preemptive rights set forth in Article V none of the Stockholders aforesaid actions by the Special Committee has been amended, rescinded or modified. The Company Board of Directors, at a meeting duly called and held, has unanimously (i) determined that each of the Agreement, of the Investor under the terms of the Stockholders Agreement, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As Merger are advisable and fair to and in the best interests of the Closing Date, effective as stockholders of the ClosingCompany, the Board will have (ii) duly and validly approved, adopted and declared advisableadvisable this Agreement and the Transactions and taken all other corporate action required to be taken by the Company Board of Directors to authorize the consummation of the Transactions, and approved and recommended (iii) resolved to recommend that the stockholders of the Company accept the Offer, tender their Shares to the Company’s stockholdersPurchaser pursuant to the Offer, and approve and adopt this Agreement and the Merger, and none of the aforesaid actions by the Company Board of Directors has been amended, rescinded or modified. The action taken by the Company Board of Directors constitutes approval of the Transactions (including each of the Certificate Offer, the Merger and the Tender and Voting Agreements) by the Company Board of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee Directors under Section 203 of the Board has unanimously and expressly approvedDGCL, and no other state takeover statute or similar statute or regulation in any jurisdiction in which the Board has unanimously concurred withCompany or any Company Subsidiary does business is applicable to the Transactions (including each of the Offer, the Company’s reliance on Merger and the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred SharesTender and Voting Agreements).

Board Approvals. At (a) The Company Board of Directors, at a meeting duly held meeting on August 13called and held, 2009, the Board unanimously has (i) determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party and the Transactions applicable to the Company and such Subsidiariesthis Agreement, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the Offer, the Merger and the other Transactions are advisable and in the best interests of the Company and the Company’s Subsidiaries. Pursuant to and in accordance with Article TENTH shareholders of the Certificate Company; (ii) authorized and approved and taken all corporate action required to be taken by the Company Board of Incorporation, Directors to authorize the Disinterested Directors consummation of the Transactions; (as defined in the Certificate of Incorporationiii) have unanimously authorized and expressly approved this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement and the Prepackaged Plan and the transactions contemplated herein and therein, including, without limitation, the full exercise of Transactions (1) all rights, including the preemptive rights set forth in Article V of the Stockholders Agreement, of the Investor under the terms of the Stockholders Agreement, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As Merger); (iv) directed that the adoption of this Agreement be submitted to a vote at a meeting of the Closing Date, effective as Company’s shareholders unless the adoption of this Agreement by the Company’s shareholders is not required by applicable law; (v) authorized and approved the Top-Up Option and the issuance of the ClosingTop-Up Shares thereunder; and (vi) recommended that the shareholders of the Company accept the Offer, tender their Shares to Purchaser pursuant to the Offer, and approve and adopt this Agreement and the Transactions (including the Offer and the Merger). (b) A committee of the Company Board of Directors, at a meeting duly called and held, has: (i) approved this Agreement and the Transactions (including the Offer and the Merger), which approval, to the extent applicable and assuming the accuracy of and adherence to the representations, warranties and covenants set forth in Section 5.7, constituted approval under the provisions of Sections 011, Subd. 38(h) and 673, Subd. 1 of the MBCA as a result of which this Agreement and the Transactions, including the Offer, the Board Top-Up Option and the Merger, are not and will have adopted not be subject to the restrictions on control share acquisitions or business combinations under the provision of Sections 671 and declared advisable673, respectively, of the MBCA and approved and such resolution, has not been rescinded, modified or withdrawn; and (ii) recommended to the Company’s stockholdersCompany Board of Directors that the Company Board of Directors approve this Agreement and the Transactions (including the Offer and the Merger). (c) No further corporate action is required by the Company Board of Directors, each pursuant to the MBCA or otherwise, in order for the Company to approve and adopt this Agreement or approve the Transactions, including the Offer and the Merger, subject, in the case of the Certificate Merger, to the approval and adoption of Incorporation Amendments (as defined in this Agreement by the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee holders of a majority of the Board has unanimously outstanding Shares, if required by applicable law, as contemplated by Section 2.6, which is the only vote of the Company shareholders that may be required for approval and expressly approved, adoption of this Agreement and the Board has unanimously concurred with, consummation of the Merger by the Company’s reliance on the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Shares.

Board Approvals. At (i) The Parent Board by resolutions duly adopted by a unanimous vote at a meeting of all directors of Parent duly called and held meeting on August 13and, 2009not subsequently rescinded or modified in any way, the Board unanimously has (A) determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party and the Transactions applicable to the Company and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the OfferTransactions, including the First Merger and the HoldCo Stock Issuance, upon the terms and subject to the conditions set forth herein, are fair to, and in the best interests of, Parent and the Parent’s stockholders, (B) approved and declared advisable this Agreement, including the execution, delivery, and performance thereof, and the consummation of the Company Transactions, including the First Merger and the CompanyHoldCo Stock Issuance, upon the terms and subject to the conditions set forth herein, (C) directed that the HoldCo Stock Issuance be submitted to a vote of the Parent’s Subsidiaries. Pursuant stockholders for adoption at the Parent Stockholders Meeting, and (D) resolved to recommend that Parent’s stockholders vote in favor of approval of the HoldCo Stock Issuance (collectively, the “Parent Board Recommendation”). (ii) The HoldCo Board by resolutions duly adopted by a unanimous written consent signed by all directors of HoldCo and not subsequently rescinded or modified in any way has (A) determined that this Agreement and the Transactions, including the First Merger and Second Merger, upon the terms and subject to the conditions set forth herein, are fair to, and in the best interests of, HoldCo and Parent, as the sole stockholder of HoldCo, (B) approved and declared advisable this Agreement, including the execution, delivery, and performance thereof, and the consummation of the Transactions, including the First Merger and the Second Merger, upon the terms and subject to the conditions set forth herein, and (C) resolved to recommend that Parent, as the sole stockholder of HoldCo, approve the adoption of this Agreement in accordance with Article TENTH the DGCL. (iii) The Merger Sub I Board by resolutions duly adopted by a unanimous written consent signed by all directors of Merger Sub I and not subsequently rescinded or modified in any way has (A) determined that this Agreement and the Certificate of IncorporationTransactions, including the Disinterested Directors (as defined First Merger, upon the terms and subject to the conditions set forth herein, are fair to, and in the Certificate best interests of, Merger Sub I and HoldCo, as the sole stockholder of IncorporationMerger Sub I, (B) have unanimously approved and expressly approved declared advisable this Agreement, including the Series B Preferred Stock CoDexecution, delivery, and performance thereof, and the Stockholders Agreementconsummation of the Transactions, including the Registration Rights AgreementFirst Merger, upon the Indemnification terms and subject to the conditions set forth herein, and (C) resolved to recommend that HoldCo, as the sole stockholder of Merger Sub I, approve the adoption of this Agreement in accordance with the DGCL. (iv) The Merger Sub II Board by resolutions duly adopted by a unanimous written consent signed by all directors of Merger Sub II and not subsequently rescinded or modified in any way has (A) determined that this Agreement and the Prepackaged Plan and the transactions contemplated herein and therein, including, without limitation, the full exercise of (1) all rightsTransactions, including the preemptive rights Second Merger, upon the terms and subject to the conditions set forth herein, are fair to, and in Article V the best interests of, Merger Sub II and HoldCo, as the sole stockholder of the Stockholders Merger Sub II, (B) approved and declared advisable this Agreement, of including the Investor under the terms of the Stockholders Agreementexecution, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisabledelivery, and approved and recommended to the Company’s stockholders, each of the Certificate of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approvedperformance thereof, and the Board has unanimously concurred with, the Company’s reliance on the exception under Paragraph 312.05 consummation of the New York Stock Exchange Listed Company Manual Transactions, including the Second Merger, upon the terms and subject to issue the Series B Preferred Sharesconditions set forth herein, and (C) resolved to recommend that HoldCo, as the sole stockholder of Merger Sub II, approve the adoption of this Agreement in accordance with the DGCL.

Board Approvals. At (a) The Company’s board of directors, by resolutions duly adopted (and not thereafter modified or rescinded) by unanimous vote (with no abstentions) at a meeting duly held meeting on August 13called and held, 2009has (a) approved this Agreement, the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party and the Transactions applicable to the Company and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Hold Co Merger Agreement and the OfferDrop Down Agreement, and, to the extent applicable, the documents to be entered into in connection therewith, the Merger, the Drop Down, the Distribution and the Hold Co Merger, (b) determined that this Agreement, the Drop Down Agreement, the Hold Co Merger Agreement and the terms and conditions of the Merger, the Drop Down, the Distribution and the Hold Co Merger are fair, advisable and in the best interests of the Company and the Company’s Subsidiaries. Pursuant to Company Stockholders, and in accordance with Article TENTH (c) directed that the adoption of the Certificate of Incorporation, the Disinterested Directors (as defined in the Certificate of Incorporation) have unanimously and expressly approved this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement and the Prepackaged Plan Hold Co Merger Agreement and the transactions contemplated herein approval of the Merger and thereinthe Hold Co Merger be submitted to the Company Stockholders for consideration and recommended that all of the Company Stockholders adopt this Agreement and approve the Merger. (b) Hold Co’s board of directors, includingby resolutions duly adopted (and not thereafter modified or rescinded) by unanimous vote (with no abstentions) at a meeting duly called and held, without limitationhas (a) approved this Agreement and the Hold Co Merger Agreement, and, to the extent applicable, the full exercise of documents to be entered into in connection therewith and the Merger and the Hold Co Merger, (1b) all rights, including determined that this Agreement and the preemptive rights set forth in Article V Hold Co Merger and the terms and conditions of the Stockholders Merger and Hold Co Merger are fair, advisable and in the best interest of Hold Co and its members, and (c) directed that the adoption of this Agreement and the Hold Co Merger Agreement and the approval of the Merger and the Hold Co Merger be submitted to its members for consideration and recommended that all of its members adopt this Agreement and the Hold Co Merger Agreement and approve the Merger and the Hold Co Merger (to the extent required by applicable Law). (c) Newco’s board of directors, by resolutions duly adopted (and not thereafter modified or rescinded) by unanimous vote (with no abstentions) at a meeting duly called and held, has (a) approved the Hold Co Merger Agreement, and, to the extent applicable, the documents to be entered into in connection therewith and the Hold Co Merger, (b) determined that the Hold Co Merger Agreement and the terms and conditions of the Investor under Hold Co Merger are fair, advisable and in the terms best interest of Newco and its stockholders, and (c) directed that the adoption of the Stockholders Agreement, (2) all rights, powers Hold Co Merger Agreement and preferences the approval of the Investor and Hold Co Merger be submitted to its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved stockholders for consideration and recommended that all of its stockholders adopt the Hold Co Merger Agreement and approve the Hold Co Merger (to the Company’s stockholders, each of the Certificate of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred with, the Company’s reliance on the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Sharesextent required by applicable Law).

Board Approvals. At a duly held meeting on August 13(a) The following actions shall require the approval at least five Directors (including each Director or Directors designated for election by each Shareholder owning, 2009individually or together with its Affiliates, 19% or more of the outstanding Shares): (i) participate in the selection of senior management and approve (which approval shall not be unreasonably withheld) such selection and the establishment of compensation for the members of senior management (the Board shall give due consideration to any expatriate employee of any Shareholder who is nominated for appointment to the senior management team by any of the Shareholders); (ii) adopt any three-year business plan and budget, including any three-year budget for capital expenditures and expenses, and any amendments thereto (collectively, the Board unanimously determined "BUSINESS PLAN"); the initial Business Plan is attached hereto as Exhibit II and by their signature hereto, each Shareholder hereby approves such Business Plan; and (iii) approve any expenditures for any year that would cause Free Cash Flow for such year to be more than 15% less than that shown in the Transaction Documents Business Plan then in effect; provided, however, if at the expiration of any Business Plan, such Directors shall not have agreed to which a new Business Plan, the Company previous Business Plan shall remain in effect for an additional six-month period while such Directors seek to agree to a new Business Plan. At the end of such additional six-month period, if such Directors still have not agreed to a new Business Plan, then the Shareholders (other than the Minority Shareholder or any Subsidiary Shareholders that designated for election the Director or Directors that have not approved the new Business Plan (each, an "OBJECTING SHAREHOLDER")) shall have the right to purchase all, but not less than all, of the Company Objecting Shareholder's Shares at a price equal to the Appraised Fair Market Value (as set forth below) of such Shares (determined as of the end of such additional six- month period) owned by the Objecting Shareholder upon ten days notice to the Objecting Shareholder. Any such purchase shall be on a pro rata basis based on the number of Shares owned by the Shareholders electing to exercise such purchase right. If payment is a party required under any guarantees provided by the Objecting Shareholder pursuant to Section 5.6, the Shareholders electing to exercise their purchase rights hereunder shall severally, based on the number of Shares acquired by each purchasing Shareholder, indemnify the Objecting Shareholder for up to 50% of any amounts paid by the Objecting Shareholder under such guarantees. (b) During the period that any new Business Plan is being negotiated, each Director and the Transactions applicable each Shareholder shall be deemed to have consented to, and each Shareholder will make, any capital contributions to the Company and such Subsidiariesto the minimum extent necessary to fund operating expenses, including without limitation but not limited to working capital and capital expenditures, during such fiscal year in an amount not to exceed 105%, increased to reflect the issuance annual inflation rate based on the Peruvian index of wholesale prices as determined by the Series B Preferred Shares and INEI (Indice de Precios al por Mayor) (the compliance with the terms thereof, the compliance with the terms of this Agreement and the Offer, are in the best interests of the Company and the Company’s Subsidiaries. Pursuant to and in accordance with Article TENTH of the Certificate of Incorporation, the Disinterested Directors (as defined in the Certificate of Incorporation) have unanimously and expressly approved this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement and the Prepackaged Plan and the transactions contemplated herein and therein, including, without limitation, the full exercise of (1) all rights, including the preemptive rights set forth in Article V of the Stockholders Agreement"INFLATION INDEX"), of the Investor under Company's operating expenses shown in the terms approved Business Plan for the preceding fiscal year (or if there was no approved Business Plan for the preceding fiscal year, in an amount not to exceed the amount of operating expenses for the Stockholders Agreementlast full fiscal year with an approved Business Plan, (2) all rightsmultiplied by 105% per annum, powers and preferences increased to reflect the annual inflation rate based on the Inflation Index, for each year since the date of such fiscal year). The Company shall provide a draft Business Plan to the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the Shareholders at least three months prior to expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved and recommended to the Company’s stockholders, each of the Certificate of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred with, the Company’s reliance on the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Sharespreceding Business Plan.

Board Approvals. At (a) The DLR Board of Directors, at a duly held meeting on August 13meeting, 2009, has (i) duly and validly authorized the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party execution and the Transactions applicable to the Company and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms delivery of this Agreement and declared advisable the OfferMergers and the other Transactions, (ii) directed that the issuance of shares of DLR Common Stock in connection with the Mergers be submitted for consideration at the DLR Stockholder Meeting, and (iii) resolved to recommend that the stockholders of DLR vote in favor of the approval of the issuance of shares of DLR Common Stock in connection with the Mergers and to include such recommendation in the Joint Proxy Statement. (b) DLR, in its capacity as the sole member of REIT Merger Sub, has duly and validly authorized the execution and delivery of this Agreement by REIT Merger Sub and the consummation by REIT Merger Sub of the Company Merger and the other Transactions and no other consent or approval by or on behalf of REIT Merger Sub is necessary to authorize REIT Merger Sub’s entry into this Agreement or consummation of the Company Merger or other Transactions. (c) The general partner of DLR OP has (i) determined that this Agreement, the Mergers and the other Transactions are advisable, and in the best interests of DLR OP and (ii) duly and validly authorized the Company execution and delivery of this Agreement and declared advisable the Mergers and the Company’s Subsidiaries. Pursuant to other Transactions. (d) Each of Merger Sub GP and DLR OP in accordance with Article TENTH its capacity as a member of OP Merger Sub has duly and validly authorized the execution and delivery of this Agreement by OP Merger Sub and the consummation by OP Merger Sub of the Certificate of Incorporation, the Disinterested Directors (as defined in the Certificate of Incorporation) have unanimously and expressly approved this Agreement, the Series B Preferred Stock CoD, the Stockholders Agreement, the Registration Rights Agreement, the Indemnification Agreement Partnership Merger and the Prepackaged Plan other Transactions and the transactions contemplated herein and therein, including, without limitation, the full exercise no other consent or approval by or on behalf of (1) all rights, including the preemptive rights set forth in Article V OP Merger Sub is necessary to authorize OP Merger Sub’s entry into this Agreement or consummation of the Stockholders Agreement, of the Investor under the terms of the Stockholders Agreement, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved and recommended to the Company’s stockholders, each of the Certificate of Incorporation Amendments (as defined in the Stockholders Agreement) , including, without limitation the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred with, the Company’s reliance on the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred SharesPartnership Merger or other Transactions.

Board Approvals. At The Company Board of Directors, at a meeting duly held meeting on August 13called and held, 2009has unanimously (i) determined that this Agreement, the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party Offers and the Transactions applicable to the Company Merger are advisable, fair to, and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the Offer, are in the best interests of the stockholders of the Company, (ii) duly and validly approved and taken all corporate action required to be taken by the Company Board of Directors to authorize the consummation of the Transactions and (iii) recommended that the stockholders of the Company accept the Offers, tender their Shares to Purchaser pursuant to the Offers, and approve and adopt this Agreement and the Company’s Subsidiaries. Pursuant to Merger, and, except as permitted by Sections 5.2(d), 5.3(a) and in accordance with Article TENTH 5.3(b), none of the Certificate aforesaid actions by the Company Board of IncorporationDirectors has been amended, the Disinterested Directors rescinded or modified. The Special Committee, at a meeting duly called and held, has unanimously (as defined in the Certificate of Incorporationi) have unanimously and expressly approved determined that this Agreement, the Series B Preferred Stock CoDClass A Offer and the Merger are fair to, and in the best interests of, the holders of the Class A Shares (other than the Stockholders Agreement(excluding ▇▇▇▇▇▇▇ ▇. ▇▇▇▇)) and (ii) recommended that the holders of Class A Shares (other than the Stockholders (excluding ▇▇▇▇▇▇▇ ▇. ▇▇▇▇)) accept the Class A Offer, tender their Class A Shares to Purchaser pursuant to the Registration Rights AgreementClass A Offer, the Indemnification and approve and adopt this Agreement and the Prepackaged Plan Merger, and except as permitted by Sections 5.2(d), 5.3(a) and 5.3(b) none of the transactions contemplated herein aforesaid actions by the Special Committee have been amended, rescinded or modified. Assuming the accuracy of the representation and therein, including, without limitation, the full exercise of (1) all rights, including the preemptive rights warranty set forth in Article V the first sentence of Section 4.8, the action taken by the Company Board of Directors in approving this Agreement and the Merger is sufficient to render inapplicable to this Agreement and the Transactions the restrictions on business combinations contained in Section 203 of the DGCL. The Company Board of Directors has given all necessary board approvals to cause the sale by the Stockholders Agreement, of the Investor under Class B Shares to Purchaser pursuant to the terms Class B Offer to be a “Qualified Transfer” for purposes of Section 6.1(d) of the Stockholders AgreementCompany Certificate and, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved and recommended to the Company’s stockholders, assuming that each of the Certificate of Incorporation Amendments Company Stockholders Agreement Waivers has been duly authorized, executed and delivered by each Stockholder, such Class B Shares shall not automatically convert into Class A Shares upon their acquisition by Purchaser. Assuming all Stockholders (as defined other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇) transfer their Shares to Purchaser in the Stockholders Agreement) Class B Offer, including, without limitation unless earlier terminated by the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred withparties thereto, the Company’s reliance on Company Stockholders Agreement shall terminate upon transfer of such Shares to Purchaser in accordance with the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Sharesterms thereof.

Board Approvals. At The Company Board of Directors, at a meeting duly held meeting on August 13called and held, 2009has unanimously (i) determined that this Agreement, the Board unanimously determined that the Transaction Documents to which the Company or any Subsidiary of the Company is a party Offers and the Transactions applicable to the Company Merger are advisable, fair to, and such Subsidiaries, including without limitation the issuance of the Series B Preferred Shares and the compliance with the terms thereof, the compliance with the terms of this Agreement and the Offer, are in the best interests of the stockholders of the Company, (ii) duly and validly approved and taken all corporate action required to be taken by the Company Board of Directors to authorize the consummation of the Transactions and (iii) recommended that the stockholders of the Company accept the Offers, tender their Shares to Purchaser pursuant to the Offers, and approve and adopt this Agreement and the Company’s Subsidiaries. Pursuant to Merger, and, except as permitted by Sections 5.2(d), 5.3(a) and in accordance with Article TENTH 5.3(b), none of the Certificate aforesaid actions by the Company Board of IncorporationDirectors has been amended, the Disinterested Directors rescinded or modified. The Special Committee, at a meeting duly called and held, has unanimously (as defined in the Certificate of Incorporationi) have unanimously and expressly approved determined that this Agreement, the Series B Preferred Stock CoDClass A Offer and the Merger are fair to, and in the best interests of, the holders of the Class A Shares (other than the Stockholders Agreement(excluding ▇▇▇▇▇▇▇ ▇. ▇▇▇▇)) and (ii) recommended that the holders of Class A Shares (other than the Stockholders (excluding ▇▇▇▇▇▇▇ ▇. ▇▇▇▇)) accept the Class A Offer, tender their Class A Shares to Purchaser pursuant to the Registration Rights AgreementClass A Offer, the Indemnification and approve and adopt this Agreement and the Prepackaged Plan Merger, and except as permitted by Sections 5.2(d), 5.3(a) and 5.3(b) none of the transactions contemplated herein aforesaid actions by the Special Committee have been amended, rescinded or modified. Assuming the accuracy of the representation and therein, including, without limitation, the full exercise of (1) all rights, including the preemptive rights warranty set forth in Article V the first sentence of Section 4.8, the action taken by the Company Board of Directors in approving this Agreement and the Merger is sufficient to render inapplicable to this Agreement and the Transactions the restrictions on business combinations contained in Section 203 of the DGCL. The Company Board of Directors has given all necessary board approvals to cause the sale by the Stockholders Agreement, of the Investor under Class B Shares to Purchaser pursuant to the terms Class B Offer to be a "Qualified Transfer" for purposes of Section 6.1(d) of the Stockholders AgreementCompany Certificate and, (2) all rights, powers and preferences of the Investor and its Affiliates as holders of Series B Preferred Stock under the terms of the Series B Preferred Stock CoD and the performance of the Corporation’s obligations with respect thereto and (3) the filing of the Prepackaged Plan Proceeding if the Offer Conditions are not satisfied upon the expiration of the Offer and the Requisite Acceptances have been received. As of the Closing Date, effective as of the Closing, the Board will have adopted and declared advisable, and approved and recommended to the Company’s stockholders, assuming that each of the Certificate of Incorporation Amendments Company Stockholders Agreement Waivers has been duly authorized, executed and delivered by each Stockholder, such Class B Shares shall not automatically convert into Class A Shares upon their acquisition by Purchaser. Assuming all Stockholders (as defined other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇) transfer their Shares to Purchaser in the Stockholders Agreement) Class B Offer, including, without limitation unless earlier terminated by the Authorized Stock Stockholder Approval. The Audit Committee of the Board has unanimously and expressly approved, and the Board has unanimously concurred withparties thereto, the Company’s reliance on Company Stockholders Agreement shall terminate upon transfer of such Shares to Purchaser in accordance with the exception under Paragraph 312.05 of the New York Stock Exchange Listed Company Manual to issue the Series B Preferred Sharesterms thereof.