Common use of Board Representation Clause in Contracts

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafter, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number on the Board that equals the product of (i) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares owned by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Shares, and the Company shall upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such number of directors as is necessary to enable Parent's designees to be elected to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or body.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafter, Parent Acquisition shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Board that equals the product of (i) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares owned by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Shares, ; provided that at all times there shall be at least two directors who are not designees of Acquisition and the number of directors shall not be more than 10 nor less than six. The Company shall shall, upon request by ParentAcquisition, subject to the provisions of Section 1.3(b)SECTION 1.3.2., promptly either increase the size of the Board (and shallBoard, if necessary, amend to the Company's by-laws to permit such an increase) or extent permitted by its Certificate of Incorporation and/or use its reasonable best efforts to secure the resignation of such number of directors as is necessary to enable ParentAcquisition's designees to be elected to the Board and shall cause Parent Acquisition's designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by ParentAcquisition, the Company will, subject to the provisions of Section 1.3(b)SECTION 1.3.2., use its reasonable best efforts to cause persons designated by Parent Acquisition to constitute the same percentage as the number of ParentAcquisition's designees to the Board bears to the total number of directors on the Board on (i) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent Acquisition and (iii) each committee of each such board or body.

Board Representation. Promptly (a) Subject to applicable Law and to the extent permitted by the NYSE, promptly upon the purchase by Acquisition Sub acceptance for payment of any Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Board that equals of Directors of the Company as will give Merger Subsidiary representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares beneficially owned by Acquisition Sub and its affiliates Parent and/or Merger Subsidiary (including any Shares purchased pursuant to the Offeraccepted for payment) bears to the total number of outstanding Shares, and the Shares outstanding. The Company shall upon request by take all actions necessary to cause Parent, subject ’s designees to be elected or appointed to the provisions Company’s Board of Section 1.3(b)Directors, promptly either increase including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (and shallincluding, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such ensure that a sufficient number of independent directors as is necessary to enable Parent's designees to be elected to are serving on the Board and shall cause Parent designees of Directors of the Company in order to be so elected; provided, that, at all times prior to satisfy the Effective Time, the Company's Board shall include at least two members who are not designees of ParentNYSE listing requirements). Promptly upon request Unless waived in writing by Parent, the Company willshall, subject prior to the expiration of the Offer, deliver to Parent such resignations of directors conditioned upon acceptance of Shares for payment and evidence of the valid election of Parent’s designees to the Company’s Board of Directors conditioned upon acceptance of Shares for payment so as to effect the provisions of this Section 1.3(b2.03(a). Subject to applicable Law, use its reasonable best efforts to the Company shall cause persons individuals designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors is on the entire Board of Directors of the Company (after giving effect to this Section 2.03(a)) to be on (i) each committee of the Board, Board of Directors of the Company and (ii) each board Board of directors or similar governing body or bodies Directors and each committee thereof of each subsidiary Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, the Company designated shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfil its obligations under this Section 2.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. (b) Notwithstanding the provisions of Section 2.03(a), following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, the Company shall use its commercially reasonable efforts to cause its Board of Directors to have at least two directors who are directors on the date hereof and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries (the “Independent Directors”); provided that if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that the remaining Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten Business Days, and further provided that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s), provided further that if no Independent Director then remains, the other directors shall designate two Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Parent, not to be unreasonably withheld or delayed. (c) Following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary and (iii) each committee any enforcement of each such board or bodyany waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Subsidiary under this Agreement or any other action by the Company’s Board of Directors under or in connection with this Agreement. The Independent Directors shall have full power solely with respect to the matters set forth in the previous sentence to be approved by the Independent Directors and in connection herewith the Independent Directors shall be authorized, on behalf of and at the expense of the Company, to retain one law firm and other advisors.

Board Representation. (a) Promptly upon the purchase by Acquisition Sub of Shares -------------------- shares of Common Stock pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Board that equals of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors equal to the product of (ia) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (iib) the percentage that the number of Shares owned shares of Common Stock purchased by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Sharesshares of Common Stock outstanding, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use of Directors and/or exercise its reasonable best efforts to secure the resignation resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors and shall cause Parent Parent's designees to be so elected; provided, that. The Company shall take, at its expense, all times action required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 6.8 and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders such information with respect to the Company and its officers and directors as is required by Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 6.8. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. (b) Following the election of designees of Parent pursuant to this Section 6.8, prior to the Effective Time, any amendment of this Agreement or the Certificate of Incorporation or Bylaws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Parent or Sub or waiver of any of the Company's rights or obligations hereunder shall require the concurrence of a majority of the directors of the Company then in office who are directors as of the date hereof or persons designated by such directors and neither were designated by Parent nor are employees of the Company ("Continuing Directors"). Prior to the Effective Time, the Company and Parent shall use all reasonable efforts to ensure that the Company's Board shall include of Directors at all times includes at least two members who are not designees of Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or bodythree Continuing Directors.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafter, Parent Acquisition shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Board that equals the product of (i) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares owned by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Shares, and the Company shall shall, upon request by ParentAcquisition, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws By- Laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such number of directors as is necessary to enable ParentAcquisition's designees to be elected to the Board and shall cause Parent Acquisition's designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by ParentAcquisition, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent Acquisition to constitute the same percentage as the number of ParentAcquisition's designees to the Board bears to the total number of directors on the Board on (i) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent Acquisition and (iii) each committee of each such board or body.

Board Representation. Promptly upon So long as the purchase by Acquisition Sub Investors beneficially own (as defined in Rule 13d-3 under the Exchange Act) (A) not less than 750,000 shares of Shares pursuant to Common Stock, the Offer and from time to time thereafter, Parent Investors shall be entitled to designate up to such number of directors, rounded up two (2) persons reasonably acceptable to the next whole number Company to serve on the Board that equals of Directors of the product Company, and (B) not less than 495,000 shares of Common Stock, the Investors shall be entitled to designate one (i1) person reasonably acceptable to the total number of directors Company to serve on the Board of Directors of the Company (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares owned by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Shares"Designated Directors"), and the Company shall upon request by Parent, subject use its best efforts (including the inclusion of such persons in the Company's proxy statement as director nominees) to cause the provisions Designated Directors to be elected as directors of Section 1.3(b), promptly either increase the Company. The Company shall immediately expand the size of its Board of Directors to seven (7) members and appoint the Board (and shall, if necessary, amend Designated Directors to fill the Company's by-laws vacancies created thereby. For so long as the Investors are entitled to permit such an increase) or use its reasonable best efforts designate directors pursuant to secure the resignation of such number of directors as is necessary to enable Parent's designees to be elected to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parentthis Section 10, the Company will, subject shall procure and maintain directors' and officers' indemnification insurance covering the Designated Directors in such amounts and with such deductibles and covering such risks as are customary for similarly situated businesses. The Company shall indemnify each Designated Director to the provisions same extent that it indemnifies its other directors pursuant to its organizational documents and applicable law. The Company shall reimburse each Designated Director for all reasonable costs and expenses incurred in connection with such Directors' attendance at meetings of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i) each Directors or any committee upon which they, or any of the Boardthem, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or bodymay serve.

Board Representation. Promptly upon (a) Beginning at the purchase by Acquisition Sub of Shares pursuant Effective Time and subject to the Offer terms of this Agreement, the Stockholders and from time the Company shall take all Necessary Action to time thereaftercause the Board to be comprised of, Parent shall be entitled to designate up to such number of initially, six directors, rounded up to and, by the next whole number on the Board that equals the product of Independence Deadline, seven directors (i) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage provided, that the number of Shares owned directors may be increased to satisfy the minimum requirements of applicable laws and the listing requirements of the New York Stock Exchange (the “NYSE”), as applicable, reasonably accounting for Independent Directors and required committee positions), one of whom shall be the Chief Executive Officer, initially two of whom, and, by Acquisition Sub and its affiliates (including any Shares purchased the Independence Deadline, three of whom shall be Independent Directors designated pursuant to the OfferSection 2(a)(ii) bears to the total number of outstanding Sharesbelow, and the Company remainder of which shall upon request by Parentbe designated pursuant to Section 2(a)(i) below. The initial Board shall consist of the persons listed on Schedule A. For purposes of this Section 2, subject to the provisions members of the ▇▇▇▇▇▇▇▇ Group shall be treated as a single “Stockholder” and their Stockholder Percentage shall be aggregated for purposes of Section 1.3(b), promptly either increase the size 2(a)(i) below. (i) For so long as each of the Board (and Stockholders holds the corresponding Stockholder Percentage set forth in the table below, the Company shall, if necessaryand the Stockholders shall take all Necessary Action to, amend include in the Company's by-laws to permit such an increase) slate of nominees recommended by the Board for election as directors at each applicable annual or use its reasonable best efforts to secure the resignation special meeting of such number of shareholders at which directors as is necessary to enable Parent's designees are to be elected to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the that aggregate number of Parent's designees Directors set forth opposite the range of its Stockholder Percentage: Equal to the Board bears to the total number of directors on the Board on (i) each committee of the Board, or greater than Less than 50 100 Majority (ii) The nomination of Independent Directors to include in the slate of nominees recommended by the Board for election as directors at each board applicable annual or special meeting of stockholders at which directors or similar governing body or bodies of each subsidiary are to be elected will be the responsibility of the Company designated by Parent and (iii) each committee of each such board or bodyfull Board.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares shares of Company Common Stock pursuant to the Offer and from time to time thereafterOffer, Parent Merger Subsidiary shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Board that equals of Directors of the Company as will give Merger Subsidiary, subject to compliance with Section 14(f) of the Exchange Act and the rules and regulations promulgated thereunder, representation on the Board of Directors of the Company equal to the product of (ia) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (iib) the percentage that the number of Shares owned shares of Common Stock purchased by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) Merger Subsidiary bears to the total number of outstanding Sharesshares of Common Stock outstanding, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b)Merger Subsidiary, promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use of Directors and/or exercise its reasonable best efforts to secure the resignation resignations of such number of directors as is necessary to enable ParentMerger Subsidiary's designees to be elected to the Board of Directors and shall cause Parent Merger Subsidiary's designees to be so elected; provided, that. The Company shall take, at its expense, all times prior action required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 6.08 and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders such information with respect to the Effective Time, Company and its officers and directors as is required by Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 6.08. Prior to the mailing of the Schedule 14D-9 to the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parentstockholders, Parent will supply to the Company willin writing and be solely responsible for any information with respect to itself and its or Merger Subsidiary's nominees, subject to the provisions of officers, directors and affiliates required by Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i14(f) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or bodyRule 14f-1.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Company Board that equals as is equal to the product of (ia) the total number of directors on the Company Board (after giving effect to the election of any additional directors designated by Parent pursuant to this Sectionsentence) and (iib) the percentage that the total votes represented by such number of Shares owned by Acquisition Sub and its affiliates (including any Shares in the election of directors of the Company so purchased pursuant to the Offer) bears to the total votes represented by the number of outstanding SharesShares outstanding. In furtherance thereof, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Company Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use and/or exercise its commercially reasonable best efforts to secure the resignation resignations of such number of its directors as is necessary to enable Parent's designees to be elected to the Company Board and shall take all actions to cause Parent Parent's designees to be so elected; provided, that, at all times prior elected to the Effective Time, the Company's Board shall include at least two members who are not designees of ParentCompany Board. Promptly upon request by ParentAt such time, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to shall also cause persons designated by Parent to constitute at least the same percentage as the number of Parent's designees (rounded up to the Board bears to the total number of directors next whole number) as is on the Company Board on of (i) each committee of the Company Board, (ii) each board of directors (or similar governing body or bodies body) of each subsidiary Subsidiary (as defined in Section 10.2 hereof) of the Company designated by Parent (each, a "COMPANY SUBSIDIARY") and (iii) each committee (or similar body) of each such board board. The Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14f-1 of the Exchange Act in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 to its stockholders such information with respect to the Company and its officers and directors as is required by such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1. The provisions of this Section 1.3 are in addition to and shall not limit any rights which Acquisition Sub, Parent or bodyany of their affiliates may have as a holder or beneficial owner of Shares as a matter of law with respect to the election of directors or otherwise. In the event that Parent's designees are elected to the Company Board, until the Effective Time (as hereinafter defined), the Company Board shall have at least two directors who are directors on the date hereof (the "INDEPENDENT DIRECTORS"); provided that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall be entitled to designate the person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Director then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Parent or Acquisition Sub and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, in the event that Parent's designees are elected to the Company Board, after the acceptance for payment of Shares pursuant to the Offer and prior to the Effective Time, the affirmative vote of a majority of the Independent Directors shall be required in addition to any other applicable requirement to (a) amend this Agreement in any material respect in a manner adverse to any stockholder of the Company or any intended third-party beneficiary of this Agreement, (b) terminate this Agreement by the Company, (c) exercise or waive any of the Company's material rights, benefits or remedies hereunder, or (d) extend the time for performance of Parent's or Acquisition Sub's respective obligations hereunder.

Board Representation. Promptly (a) Subject to applicable law and to the extent permitted by the NYSE, promptly upon the purchase by Acquisition Sub acceptance for payment of any Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Board that equals of Directors of the Company as will give Merger Subsidiary representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares beneficially owned by Acquisition Sub and its affiliates Parent and/or Merger Subsidiary (including any Shares purchased pursuant to the Offeraccepted for payment) bears to the total number of outstanding Shares, and the Shares outstanding. The Company shall upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such number of directors as is take all actions necessary to enable cause Parent's designees to be elected or appointed to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who of Directors, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (including, if necessary, to ensure that a sufficient number of independent directors are not designees serving on the Board of ParentDirectors of the Company in order to satisfy the NYSE listing requirements). Promptly upon request Subject to applicable law and to the extent permitted by Parentthe NYSE, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to shall cause persons individuals designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors is on the entire Board of Directors of the Company (after giving effect to this Section 2.03(a)) to be on (i) each committee of the Board, Board of Directors of the Company and (ii) each board Board of directors or similar governing body or bodies Directors and each committee thereof of each subsidiary Subsidiary of the Company. The Company's obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, the Company designated shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 2.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. (b) Notwithstanding the provisions of Section 2.03(a), following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the Company shall use its commercially reasonable efforts to cause its Board of Directors to have at least two directors who are directors on the date hereof and who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries (the "Independent Directors"); provided that if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that the remaining Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten Business Days, and further provided that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s), provided further that if no Independent Director then remains, the other directors shall designate two Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Parent, not to be unreasonably withheld or delayed. (c) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary and (iii) each committee any enforcement of each such board or bodyany waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Subsidiary under this Agreement or any other action by the Company's Board of Directors under or in connection with this Agreement. The Independent Directors shall have full power solely with respect to the matters set forth in the previous sentence to be approved by the Independent Directors and in connection herewith the Independent Directors shall be authorized, on behalf of and at the expense of the Company, to retain one law firm and other advisors.

Board Representation. Promptly upon So long as the purchase by Acquisition Sub Investors beneficially own (as defined in Rule 13d-3 under the Exchange Act) (A) not less than 750,000 shares of Shares pursuant to Common Stock, the Offer and from time to time thereafter, Parent Investors shall be entitled to designate up to such number of directors, rounded up two (2) persons reasonably acceptable to the next whole number Company to serve on the Board that equals of Directors of the product Company, and (B) not less than 495,000 shares of Common Stock, the Investors shall be entitled to designate one (i1) person reasonably acceptable to the total number of directors Company to serve on the Board of Directors of the Company (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares owned by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total number of outstanding Shares"Designated Directors"), and the Company shall upon request by Parent, subject use its best efforts (including the inclusion of such persons in the Company's proxy statement as director nominees) to cause the provisions Designated Directors to be elected as directors of Section 1.3(b), promptly either increase the Company. The Company shall immediately expand the size of its Board of Directors to seven (7) members and appoint the Board (and shall, if necessary, amend Designated Directors to fill the Company's by-laws vacancies created thereby. For so long as the Investors are entitled to permit such an increase) or use its reasonable best efforts designate directors pursuant to secure the resignation of such number of directors as is necessary to enable Parent's designees to be elected to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parentthis Section 10, the Company will, subject shall procure and maintain directors' and officers' indemnification insurance covering the Designated Directors in such amounts and with such deductibles and covering such risks as are customary for similarly situated businesses. The Company shall indemnify each Designated Director to the provisions same extent that it indemnifies its other directors pursuant to its organizational documents and applicable law. The Company shall reimburse each Designated Director for all reasonable costs and expenses incurred in connection with such Directors' attendance at meetings of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i) each Directors or any committee upon which they, or any of the Boardthem, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or bodymay serve.

Board Representation. Promptly upon the purchase of Shares by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Company Board that equals as is equal to the product of (ia) the total number of directors on the Company Board (after giving effect to the election of any additional directors designated by Parent pursuant to this Sectionsentence) and (iib) the percentage that the total votes represented by such number of Shares owned in the election of directors of the Company so purchased by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total votes represented by the number of outstanding SharesShares outstanding. In furtherance thereof, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Company Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use and/or exercise its reasonable best efforts to secure the resignation resignations of such number of its directors as is necessary to enable Parent's designees to be elected to the Company Board and shall take all actions to cause Parent Parent's designees to be so elected; provided, that, at all times prior elected to the Effective Time, the Company's Board shall include at least two members who are not designees of ParentCompany Board. Promptly upon request by ParentAt such time, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to shall also cause persons designated by Parent to constitute at least the same percentage as the number of Parent's designees (rounded up to the Board bears to the total number of directors next whole number) as is on the Company Board on of (i) each committee of the Company Board, (ii) each board of directors (or similar governing body or bodies body) of each subsidiary Subsidiary (as defined in Section 10.2 hereof) of the Company designated by Parent (each, a "Company Subsidiary") and (iii) each committee of each such board (or body.similar

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares -------------------- shares of Common Stock pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Board that equals of Directors of the Company as will give Parent, subject to compliance with Section 14(f) of the Exchange Act and the rule and regulations promulgated thereunder, representation on the Board of Directors equal to the product of (ia) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) Directors and (iib) the percentage that the number of Shares owned shares of Common Stock purchased by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) Parent bears to the total number of outstanding Sharesshares of Common Stock outstanding, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use of Directors and/or exercise its reasonable best efforts to secure the resignation resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors and shall cause Parent Parent's designees to be so elected; provided, that. The Company shall take, at its expense, all times prior action required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 7.9 and shall include in the Schedule 14D-9 or otherwise timely mail to ----------- its stockholders such information with respect to the Effective Time, the Company's Board shall include at least two members who are not designees of ParentCompany and its officers and directors as is required by Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 7.9. Promptly upon request by Parent, Parent will supply to the Company will, subject in ----------- writing and be solely responsible for any information with respect to the provisions of Section 1.3(b), use itself and its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of or Parent's designees to the Board bears to the total number of nominees, officers, directors on the Board on (iand affiliates required by Section 14(f) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary of the Company designated by Parent and (iii) each committee of each such board or bodyRule 14f-1.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant The Company agrees that it shall use its best efforts, subject to the Offer and from time to time thereafter, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number on the Board that equals the product of (i) the total number of directors on the Board (giving effect to the election of any additional directors pursuant to this Section) and fiduciary duties under Delaware law, (ii) the percentage applicable listing standards of Nasdaq or any other any securities exchange on which any of the Company’s securities are then traded or listed and (iii) any applicable Law, including without limitation the Delaware General Corporation Law and the Exchange Act, to cause one (1) individual designated by the Majority Carlyle Stockholders to be nominated to the Company’s Board of Directors, provided that such individual is reasonably acceptable to the number Nominating Committee of Shares owned the Company’s Board of Directors (or the Company’s Board of Directors if there is no such Nominating Committee). In the event of any vacancy on the Company’s Board of Directors occurring by Acquisition Sub and its affiliates (including any Shares purchased reason of the death, resignation, removal or other termination of the director designated by the Majority Carlyle Stockholders pursuant to the Offer) bears to the total number of outstanding Sharesthis Section 2.1, and the Company agrees that it shall upon request by Parentuse its best efforts, subject to the provisions limitations referred to in the prior sentence, to cause an individual designated by the Majority Carlyle Stockholders to be nominated to fill such vacancy. The Majority Carlyle Stockholders may waive the right contemplated by this Section 2.1 by giving written notice of such waiver to the Company’s Board of Directors. Unless waived in accordance with the previous sentence, the rights pursuant to this Section 1.3(b), promptly either increase 2.1 shall continue so long as the size Carlyle Stockholders Beneficially Own Voting Securities constituting in the aggregate at least fifteen percent (15%) of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such number of directors as is necessary to enable Parent's designees to be elected to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to cause persons designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors on the Board on (i) each committee of the Board, (ii) each board of directors or similar governing body or bodies of each subsidiary outstanding Voting Securities of the Company designated (assuming conversion of all outstanding shares of Convertible Preferred Stock). The rights provided to the Carlyle Stockholders pursuant to this Section 2.1 may be assigned by Parent and (iii) each committee the Carlyle Stockholders to any one or more of each such board or bodythe Carlyle Stockholders.

Board Representation. Promptly (a) Subject to applicable Law and to the extent permitted by Nasdaq, promptly upon the purchase by Acquisition Sub acceptance for payment of any Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Board that equals of Directors of the Company as will give Merger Sub representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this SectionSection 2.03(a)) and (ii) the percentage that the number of Shares beneficially owned by Acquisition Parent and/or Merger Sub and its affiliates (including any Shares purchased pursuant to the Offeraccepted for payment) bears to the total number of outstanding SharesShares outstanding. Subject to applicable Law, including applicable fiduciary duties, and to the extent permitted by Nasdaq, the Company shall upon request by take all actions necessary to cause Parent, subject ’s designees to be elected or appointed to the provisions Company’s Board of Section 1.3(b)Directors, promptly either increase including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (and shallincluding, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation of such ensure that a sufficient number of independent directors as is necessary are serving on the Board of Directors of the Company in order to enable Parent's designees satisfy applicable Nasdaq listing requirements). Subject to be elected applicable Law, including applicable fiduciary duties, and to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Time, the Company's Board shall include at least two members who are not designees of Parent. Promptly upon request extent permitted by ParentNasdaq, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to shall cause persons individuals designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors is on the entire Board of Directors of the Company (after giving effect to this Section 2.03(a)) to be on (i) each committee of the Board, Board of Directors of the Company and (ii) each board Board of directors or similar governing body or bodies Directors and each committee thereof of each subsidiary Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, the Company designated shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 2.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its shareholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and affiliates required by Parent Section 14(f) and Rule 14f-1 under the Exchange Act. (iiib) Notwithstanding the provisions of Section 2.03(a), following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, the Company shall cause its Board of Directors to have at all times at least two directors (and each committee of each the Board of Directors at least one member) who are directors on the date hereof and who are not employed by the Company and who are not Affiliates, shareholders or employees of Parent or any of its Subsidiaries (the “Independent Directors”); provided that, if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, shareholder or employee of Parent or any of its Subsidiaries to fill such board vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that, the remaining Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten Business Days, and further provided that, if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s), provided further that, if no Independent Director then remains, the other directors shall designate two Persons who shall not be Affiliates, shareholders or bodyemployees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Parent, not to be unreasonably withheld or delayed. (c) Following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub and any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Sub under this Agreement or any other action by the Company’s Board of Directors under or in connection with this Agreement. The Independent Directors shall have full power solely with respect to the matters set forth in the previous sentence to be approved by the Independent Directors and in connection herewith the Independent Directors shall be authorized, on behalf of and at the expense of the Company, to retain one Law firm and other advisors.

Board Representation. Promptly (a) Subject to applicable Law and to the extent permitted by the Stock Exchange, promptly upon the purchase by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafterAcceptance Date, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Board that equals of Directors of the Company as will give Merger Subsidiary representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares beneficially owned by Acquisition Sub and its affiliates Parent and/or Merger Subsidiary (including any all Shares purchased which have been and will be accepted for payment pursuant to the OfferArticle III) bears to the total number of outstanding SharesShares outstanding, and upon the request of Parent, the Company shall upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) of Directors or use its reasonable best efforts to secure the resignation resignations of such number of directors as is necessary to enable Parent's provide Parent with such level of representation (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the Stock Exchange listing requirements) (the date on which the majority of the Company’s directors are designees to be elected of Parent that have been effectively appointed to the Board and shall cause Parent designees to be so elected; provided, that, at all times prior to of Directors of the Effective TimeCompany in accordance herewith, the Company's “Board shall include at least two members who are not designees of ParentAppointment Date”). Promptly upon request by ParentSubject to applicable Law, the Company will, subject to the provisions of Section 1.3(b), shall use its reasonable best efforts to cause persons individuals designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors is on the entire Board of Directors of the Company (after giving effect to this Section 2.3(a)) to be on (i) each committee of the BoardBoard of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 2.3(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. (b) Notwithstanding the provisions of Section 2.3(a), following the election or appointment of Parent’s designees pursuant to Section 2.3(a) and until the Effective Time, the Company shall use its reasonable best efforts to cause its Board of Directors to have at least two (2) directors, who (i) were directors on the date hereof, (ii) each board of are considered to be independent directors or similar governing body or bodies of each subsidiary within the meaning of the Company designated by Parent Stock Exchange listing requirements and applicable Laws, and (iii) each committee are not Affiliates, equityholders or employees of each Parent or any of its Subsidiaries or Affiliates (the “Independent Directors”) and at least such board number of directors (including the Independent Directors) as may be required by the Stock Exchange listing requirements or bodyapplicable Laws, who are considered independent directors within the meaning of such Stock Exchange listing requirements and Laws; provided that if any Independent Directors cease to be directors for any reason whatsoever, the remaining Independent Directors (or Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall be independent within the meaning of the Stock Exchange listing requirements and applicable Laws and shall not be an Affiliate, equityholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Independent Director(s) for purposes of this Agreement; provided that the remaining Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Independent Directors are appointed in such time period, Parent shall designate such Independent Director(s), provided further that if no Independent Director then remains, the other directors shall designate two (2) Persons who shall be independent within the meaning of the Stock Exchange listing requirements and applicable Laws and shall not be Affiliates, equityholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Parent, not to be unreasonably withheld, delayed or conditioned. (c) Following the Board Appointment Date and until the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (and such authorization shall constitute the authorization of the Board of Directors and no other action on the part of the Company, including any action by any other director of the Company, shall be required to authorize) any termination of this Agreement by the Company pursuant to Section 8.1, any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Subsidiary and any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any action to seek to enforce any obligations of Parent or Merger Subsidiary under this Agreement or any other action by the Company’s Board of Directors under or in connection with this Agreement.

Board Representation. Promptly upon the purchase by Acquisition Sub of Shares pursuant Subject to applicable Law and to the Offer and from time extent permitted by the requirements of the New York Stock Exchange, if after the Acceptance Time the adoption of this Agreement by the Company’s stockholders is required by Law (including if the conditions to time thereafterthe Top-Up Option are not satisfied or the Top-Up Option is for any reason deemed to be invalid or unenforceable), Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, to serve on the Company Board that equals as will give Purchaser representation on the Company Board equal to the product of (i) the total number of directors on the Company Board (giving effect to the election or appointment of any additional directors pursuant to this SectionSection 2.1(e)) and (ii) the percentage that the number of Shares beneficially owned by Acquisition Sub and its affiliates Parent and/or Purchaser (including any all Shares purchased which have been accepted for payment pursuant to the OfferArticle III) bears to the total number of outstanding SharesShares outstanding, and upon the request of Parent, the Company shall upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Company Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use its reasonable best efforts to secure the resignation resignations of such number of directors as is necessary to enable Parent's provide Parent with such level of representation (the date on which the majority of the Company’s directors are designees to be of Parent that have been effectively elected or appointed to the Company Board and shall cause Parent designees to be so elected; provided, that, at all times prior to the Effective Timein accordance herewith, the Company's “Board shall include at least two members who are not designees of ParentAppointment Date”). Promptly upon request by ParentSubject to applicable Law, the Company will, subject to the provisions of Section 1.3(b), shall use its reasonable best efforts to cause persons individuals designated by Parent to constitute the same percentage as the number of Parent's designees to the Board bears to the total number of directors is on the entire Company Board (after giving effect to this Section 2.1(e)) to be on (i) each committee of the Board, Company Board of the Company and (ii) each board of directors or similar governing body or bodies and each committee thereof of each subsidiary Company Subsidiary. The Company’s obligations to elect or appoint designees to the Company Board shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 2.1(e) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. In the event that Parent’s designees are elected or appointed to the Company Board pursuant to this Section 2.1(e), then, until the Effective Time, the Company shall cause the Company Board to maintain at least three directors who are members of the Company designated Board on the date of this Agreement and who are independent for purposes of Rule 10A-3 under the Exchange Act and applicable requirements of the New York Stock Exchange (the “Independent Directors”); provided, however, that if the number of Independent Directors is reduced below three for any reason, the remaining Independent Director(s) shall be entitled to designate an individual or individuals to fill such vacancy who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Directors then remain, the other directors shall promptly (and in any event within ten (10) Business Days) designate three individuals to fill such vacancies who are independent for purposes of Rule 10A-3 under the Exchange Act and applicable requirements of the New York Stock Exchange, and such individuals shall be deemed to be Independent Directors for purposes of this Agreement; provided, that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s). Notwithstanding anything in this Agreement to the contrary, from and after the Board Appointment Date and prior to the Effective Time, subject to the terms hereof, any amendment or termination of this Agreement by the Company requiring action by the Company Board, any extension by the Company of the time for the performance of any of the obligations or other acts of Parent and or Purchaser or waiver of any of the Company’s rights hereunder, will, to the fullest extent permitted by Law, require the concurrence of a majority of the Independent Directors (iii) each committee or in the case where there are two or fewer Independent Directors, the concurrence of each such board or bodyone Independent Director).

Board Representation. Promptly upon the purchase of Shares by Acquisition Sub of Shares pursuant to the Offer and from time to time thereafterOffer, Parent shall be entitled to designate up to such number of directors, rounded up to the next whole number number, on the Company Board that equals as is equal to the product of (ia) the total number of directors on the Company Board (after giving effect to the election of any additional directors designated by Parent pursuant to this Sectionsentence) and (iib) the percentage that the total votes represented by such number of Shares owned in the election of directors of the Company so purchased by Acquisition Sub and its affiliates (including any Shares purchased pursuant to the Offer) bears to the total votes represented by the number of outstanding SharesShares outstanding. In furtherance thereof, and the Company shall shall, upon request by Parent, subject to the provisions of Section 1.3(b), promptly either increase the size of the Company Board (and shall, if necessary, amend the Company's by-laws to permit such an increase) or use and/or exercise its reasonable best efforts to secure the resignation resignations of such number of its directors as is necessary to enable Parent's Parent"s designees to be elected to the Company Board and shall take all actions to cause Parent Parent"s designees to be so elected; provided, that, at all times prior elected to the Effective Time, the Company's Board shall include at least two members who are not designees of ParentCompany Board. Promptly upon request by ParentAt such time, the Company will, subject to the provisions of Section 1.3(b), use its reasonable best efforts to shall also cause persons designated by Parent to constitute at least the same percentage as the number of Parent's designees (rounded up to the Board bears to the total number of directors next whole number) as is on the Company Board on of (i) each committee of the Company Board, (ii) each board of directors (or similar governing body or bodies body) of each subsidiary Subsidiary (as defined in Section 10.2 hereof) of the Company designated by Parent (each, a "Company Subsidiary") and (iii) each committee (or similar body) of each such board or body.board. The Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14f-1 of the Exchange Act in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 to its stockholders such information with respect to the Company and its officers and directors as is required by such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1. Notwithstanding the foregoing, in the event that Parent"s