Common use of Certain Other Activities Clause in Contracts

Certain Other Activities. The Vintage Group agrees that: (a) at the 2012 Meeting, and thereafter for so long as any New Appointee or any other designee of the Vintage Group serves as a director of the Company (unless otherwise approved by a majority of the entire Board), the Neutral Shares shall, at the Vintage Group’s election, solely with respect to the election of directors, ratification of auditors and say-on-pay proposals (provided that compensation for the Company’s executives included therein is consistent with practices in effect as of the date hereof), either (i) not be voted or (ii) be voted in accordance with the recommendation of the Board; and (b) for so long as any New Appointee or any designee of the Vintage Group serves as a director of the Company, the Vintage Group shall not, without the prior written approval of a majority of the Independent Directors (as hereinafter defined) then serving on the Board, seek or offer to (i) acquire, beneficially or of record, securities of the Company representing 50% or more of the voting power of the then-outstanding securities of the Company, whether by purchase, tender or exchange offer, merger, consolidation or otherwise or (ii) acquire, directly or indirectly, all or substantially all of the assets of the Company. For purposes of this Agreement, an “Independent Director” shall be a director who (i) is not a New Appointee, a designee of the Vintage Group or otherwise affiliated with the Vintage Group, (ii) does not have a conflict of interest with respect to the proposed transaction and is not in any way interested in the proposed transaction and (iii) meets the qualifications for independence under NASDAQ Rule 5605 or any successor rule.