Common use of Nomination of Directors Clause in Contracts

Nomination of Directors. (a) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.

Nomination of Directors. Notwithstanding anything herein to the contrary, following the IPO Time until such time as the AKKR Group ceases to hold, on a collective basis, more Common Stock than the Sharma Investors hold, on a collective basis, as of such time (abut excluding, for this purpose, any Restricted Shares held by the AKKR Group or the Sharma Investors) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined below)such time, the Company will cause its Board of Directors (the “BoardAppointment Right Time”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that ): (i) are marked “FOR” For so long as the election of any AES Nominee AKKR Group owns, directly or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) holdindirectly, in the aggregate, 30 percent or more at least: (1) 10% of the outstanding common stock shares of Common Stock that are not Restricted Shares, the AKKR Designation Parties shall have the right, but not the obligation, to nominate to the Board five (5) Directors, who shall initially be the following individuals: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ with two seats for AKKR Directors left vacant; and (2) 5% of the Company; outstanding shares of Common Stock that are not Restricted Shares, but less than 10% of the outstanding shares of Common Stock that are not Restricted Shares, the AKKR Designation Parties shall have the right, but not the obligation, to nominate to the Board two (2) Directors. Any such Director(s) appointed pursuant to this Section 2(a)(i) shall be the “AKKR Director” or “AKKR Directors,” as applicable. (ii) one member of For so long as (x) the Board if AESSharma Investors own, AES’s Family Members and AES’s Affiliates holddirectly or indirectly, in the aggregate, 10 percent or more but less than 30 percent at least 5% of the outstanding common stock shares of Common Stock that are not Restricted Shares or (y) Sharma is the Company’s chief executive officer, the Sharma Investors shall have the right, but not the obligation, to nominate Sharma to the Board and in such capacity Sharma shall be the “Sharma Director.” Any Directors other than AKKR Directors and the Sharma Director shall be “Independent Directors”, and the initial Independent Directors shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇ with one seat for an Independent Director left vacant. Any Independent Director shall not be deemed to be an AKKR Director or Sharma Director. From and after the Appointment Right Time, and until such time as the AKKR Group ceases to hold, on a collective basis, at least 5% of the Company (the “AES Nominees”). For purposes outstanding shares of determining the number of AES NomineesCommon Stock that are not Restricted Shares, the stock ownership of AESAKKR Designation Parties shall have the right, AES’s Family Members and AES’s Affiliates will be measured on but not the record date for the relevant meeting of the stockholders or a vacancy on obligation, to nominate to the Board existstwo (2) Directors, who shall be AKKR Directors. The Board shall consist of three (3) classes of Directors as applicablefurther specified in the Certificate of Incorporation and, until the Appointment Right Time, each class shall consist of at least one (1) seat for an Independent Director and at least one (1) seat for an AKKR Director. This Agreement will be interpreted in such a manner that AES or From and after the CompanyAppointment Right Time, so long as the case may be, will AKKR Designation Parties have the right to nominate designate two (2) AKKR Directors, each seat for an AKKR Director shall be in a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal separate class of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) aboveDirectors.

Nomination of Directors. The composition of each Board shall be determined in accordance with the following provisions: (a) Following For so long as AmBev and BAC each have the Company’s 2004 annual meeting Requisite Percentage, each of AmBev and BAC shall have the right to nominate 50% of the stockholders directors (and until the Termination Date (as defined below), their respective alternates) constituting the Company will cause its Board and, in the case of Directors (the “each Subsidiary Board”) or a committee , 50% of the Board number of directors (and their respective alternates) that BAC is entitled to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Companyunder such subsidiary's charter documents or by-laws, any existing shareholders agreement or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting.applicable law; (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board If either AmBev or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but BAC has less than 30 percent the Requisite Percentage, then each of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members AmBev and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will BAC shall have the right to nominate a director number of directors proportionate to fill any vacancy on their percentage share of the Board whether created Voting Interest, determined by multiplying their percentage share of the resignation, death, disability, or removal of any director, or Voting Interest by the increase or decrease in the number of directors on constituting the entire Board so as (or, in the case of any Subsidiary Board, the number of directors BAC is entitled to meet the numerical requirements of clauses (inominate) and rounding upward or downward to the nearest whole number. In the circumstances contemplated in this clause (iib), the number of directors constituting each entire Board shall be fixed at such number, subject to the limitations contained in the charter documents or by-laws of the Company or the applicable subsidiary, as will result in AmBev's and BAC's representation on each Board being as close to proportional as possible; and (c) aboveNotwithstanding the foregoing, upon the occurrence of the Second Stage Closing Date, all rights of BAC to nominate directors shall terminate immediately, the directors nominated by BAC shall resign effective upon the Second Stage Closing Date and, as promptly as practicable thereafter, including by means of calling a shareholders' meeting, each Board shall be reconstituted to include only directors nominated or approved by AmBev, subject to the rights of any other shareholders under any subsidiary's charter or By-laws or any existing shareholders agreement to nominate directors.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date Each Eligible Investor (as defined below), the Company will cause other than Reuters or its Board of Directors (the “Board”transferees) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will shall have the right to nominatenominate for election to the Board of Directors that number of directors (each, a "Designated Director") determined in accordance with the following formula: (i) the total number of members of the Board equal of Directors (which, as of the date of this Agreement is eight (8)) multiplied by the percentage of the total voting power of all outstanding Savvis Voting Stock represented by the Savvis Voting Stock owned by such Eligible Investor, rounded down to one fewer the nearest whole number; provided that, in the event that WCAS and its Affiliates collectively own of record Savvis Voting Stock representing more than 50% of the voting power represented by the then validly issued and outstanding Savvis Voting Stock, the number of Designated Directors such Investors shall be able to appoint shall not be less than a majority number that is at least half of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board; and provided further that each such Eligible Investor will be entitled to nominate at least one director for election to the Board in accordance with this Section 6(a) so long as such Eligible Investor (and, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, solely in the aggregatecase of WCAS, 30 together with its Affiliates) owns of record Savvis Voting Stock representing at least five percent (5%) of the total voting power of all outstanding Savvis Voting Stock. (b) In the event that any Investor ceases to be such an Eligible Investor or otherwise ceases to own a sufficient number of shares of Savvis Voting Stock to entitle it to nominate the number of directors it then has on the Board of Directors, such Investor shall use its best efforts promptly to cause the resignation of one or more of its Designated Director(s) from the outstanding common stock Board of Directors and, if such resignation is not obtained, to vote its shares of Savvis Voting Stock in favor of the Company; removal of one or more of its Designated Director(s) from the Board of Directors, in each case so that the number of Designated Directors, if any, of such Investor shall be consistent with such Investor's rights under Section 6(a). (iic) one member The Investors and Savvis hereby further agree that in the event a Designated Director shall cease to serve as a director of Savvis, the vacancy resulting therefrom (including a vacancy on any committee of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates Directors) will be measured on filled promptly by the record date for the relevant meeting of Board or the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Companyof Savvis, as the case may be, will have in each case as provided in the right Bylaws of the Company, with a substitute Designated Director nominated pursuant to nominate Section 6(d) below. (d) The selection of a director substitute Designated Director to fill any a vacancy on the Board whether of Directors shall be made as follows: (1) in the event the vacancy has been created by the resignation, death, disability, resignation or removal of any directorthe Designated Director of an Eligible Investor pursuant to Section 6(b), or the substitute Designated Director shall be selected by the increase remaining members of the Board of Directors, or, if another Eligible Investor has replaced the Eligible Investor whose Designated Director has resigned or decrease been removed, then such other Eligible Investor shall select the substitute Designated Director. (2) in the number event the vacancy has been created other than by reason of directors on the Board so as resignation or removal of the Designated Director of an Eligible Investor pursuant to meet Section 6(b), the numerical requirements substitute Designated Director shall be selected by the Eligible Investor who nominated the director whose position is to be filled. (e) Savvis agrees subject to fiduciary obligations to take all actions necessary to cause the terms of clauses Section 6(a) to be affected in accordance with their terms. (f) The provisions of this Section 6 shall continue in force and effect until the earlier to occur of (i) the date on which no shares of Preferred Stock are outstanding and (ii) abovethe date on which there are no Eligible Investors.

Nomination of Directors. From and after the date hereof, Trive Capital shall have the right to nominate for election to the Board that number of directors such that, if elected, will result in Trive having the following number of directors serving on the Board: (a) Following the Company’s 2004 annual meeting no fewer than that number of directors that would constitute a majority of the stockholders and until the Termination Date (as defined below), number of directors that the Company will cause its Board of Directors (would have if there were no vacancies on the “Board”) or a committee , so long as Trive Capital and Trive collectively beneficially own at least 40% of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders then outstanding capital stock of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting.; (b) Following the Company’s 2004 annual meeting no fewer than that number of the stockholders and until the Termination Date, AES will have the right to nominate: (i) directors that would constitute 40% of the number of members of directors that the Board equal to one fewer than a majority Company would have if there were no vacancies on the Board, so long as Trive Capital and Trive collectively beneficially own at least 30% of the then current number of members outstanding capital stock of the Board if there is an odd number of members of the Board or two fewer Company but less than a majority 40% of the then current members outstanding capital stock of the Board Company; (c) no fewer than that number of directors that would constitute 30% of the number of directors that the Company would have if there is an even number of members of were no vacancies on the Board, in either case if AES, AES’s Family Members (so long as defined below) Trive Capital and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more Trive collectively beneficially own at least 20% of the then outstanding common capital stock of the Company but less than 30% of the then outstanding capital stock of the Company; (d) no fewer than that number of directors that would constitute 20% of the number of directors that the Company would have if there were no vacancies on the Board, so long as Trive Capital and Trive collectively beneficially own at least 10% of the then outstanding capital stock of the Company but less than 20% of the then outstanding capital stock of the Company; or and (iie) one member no fewer than that number of directors that would constitute 10% of the Board number of directors that the Company would have if AESthere were no vacancies on the Board, AES’s Family Members so long as Trive Capital and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent Trive collectively beneficially own at least 5% of the then outstanding common capital stock of the Company (but less than 10% of the “AES Nominees”)then outstanding capital stock of the Company. For With respect to the directors that Holdings is entitled to nominate pursuant to the immediately preceding sentence, for purposes of determining calculating the number of AES Nomineessuch directors, any fractional amounts shall automatically be rounded up to the stock ownership of AESnearest whole number, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board existse.g., as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right 1.25 directors shall equate to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above2 directors.

Nomination of Directors. (a) Following On or before the Company’s 2004 annual meeting Closing date, effective upon the consummation of the stockholders and until the Termination Date (as defined below)transaction contemplated hereunder, the Company will cause shall have (i) adopted an amendment to its Bylaws setting the number of directors on its Board of Directors at seven (the “Board”7) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion appointed two (2) new directors to management its Board of Directors, each of whom shall have been nominated by the Purchaser at least three (3) business days prior to be voted “FOR” the election of any AES Nominee eligible for election at Closing Date, provided that such meeting. (b) Following individuals are reasonably acceptable to the Company’s 2004 annual meeting of . Provided that the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to Purchaser and/or one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock persons listed on EXHIBIT F continues to hold greater than 25% of the Company; or (ii) one member of the Board if AES, AES’s Family Members issued and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes as of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant mailing of proxy materials to shareholders in connection with the Company's annual meeting of shareholders, the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted Company shall recommend in such a manner proxy materials that AES shareholders at each such meeting elect two (2) individuals to its Board of Directors who were nominated by the Purchaser (or the holders of a majority of the Conversion Stock if the Purchaser has been dissolved) and the Company shall at each such meeting cause its designated proxyholder to vote proxies received from shareholders in favor of such nominees, provided that such nominees are reasonably acceptable to the Company. Provided that the Purchaser and/or one or more of the persons listed on EXHIBIT F continues to hold greater than 15% but less than or equal to 25% of the issued and outstanding stock of the Company as of the record date for the mailing of proxy materials to shareholders in connection with the Company's annual meeting of shareholders, as the case may beCompany shall recommend in such proxy materials that shareholders at each such meeting elect one (1) individual to its Board of Directors who was nominated by the Purchaser (or the holders of a majority of the Conversion Stock if the Purchaser has been dissolved) and the Company shall at each such meeting cause its designated proxyholder to vote proxies received from shareholders in favor of such nominee, will have provided that such nominee is reasonably acceptable to the right Company. In the event the Company increases its Board size above seven (7) directors prior to the next annual meeting of shareholders, the Company shall not be required to nominate a director or recommend election of additional Purchaser candidates to fill any vacancy on the Company's Board whether created by the resignationof Directors other than as set forth above in this Section 5.1, death, disability, or removal of any director, or by the increase or decrease in provided that the number of directors on who are officers, employees, or paid full-time consultants of the Company is not greater than two (2). The Compensation Committee of the Board so as of Directors shall be comprised of three (3) directors and shall include one (1) director who was nominated to meet the numerical requirements of clauses (i) and (ii) aboveBoard by the Purchaser.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting As of the stockholders date hereof and until for so long as the Termination Date KKR Investors beneficially own, on a collective basis: (as defined below)i) at least 40% of the outstanding shares of Common Stock, KKR shall have the Company will cause its right, but not the obligation, to nominate to the Board a number of Directors (rounded up to the “Board”nearest whole number) or a committee equal to the authorized number of Directors of the Board at such time multiplied by 50.1%; and (ii) at least 10%, but less than 40%, of the outstanding shares of Common Stock, KKR shall have the right, but not the obligation, to nominate all to the Board a number of Directors (rounded up to the AES Nominees (as defined belownearest whole number) for membership on equal to the authorized number of Directors of the Board at each annual such time multiplied by such percentage of the outstanding shares of Common Stock beneficially owned collectively by the KKR Investors. The Corporation agrees, to the fullest extent permitted by applicable law and the listing standards of the stock exchange on which the Class A Common Stock is then listed (the “Applicable Exchange Listing Standards”), to take all necessary and desirable actions to (1) include in the slate of nominees recommended by the Board for election at any meeting of stockholders called for the stockholders purpose of electing Directors the Company, or at any other meeting individuals designated pursuant to this Section 2(a) (to the extent that Directors of the stockholders at which members of the Board such nominee’s class are to be electedelected at such meeting for so long as the Board is classified), (2) nominate and recommend each such individual to be elected as a Director as provided herein, and at every adjournment (3) solicit proxies or postponement consents in favor thereof. The Corporation is entitled, solely for the purposes set forth in this Section 2(a), to identify each such individual as a KKR Director pursuant to this Agreement. In the event that KKR has nominated fewer than the total number of any such meetingdesignees KKR is entitled to nominate pursuant to this Section 2(a), butKKR shall have the right, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meetingtime, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To additional designees to which it is entitled, in which case the Corporation and the Directors shall take all necessary corporate action, to the fullest extent permitted by law applicable law, to (x) enable KKR to nominate and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” effect the election or appointment of any AES Nominee or such additional individuals, and (iiy) grant voting discretion to management to be voted “FOR” effect the election or appointment of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right additional individuals nominated by KKR to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board fill such newly-created directorships or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on other existing vacancies. Any such Director(s) nominated pursuant to this Section 2(a) shall be the Board whether created by the resignation, death, disability, “KKR Director” or removal of any director, or by the increase or decrease in the number of directors on the Board so “KKR Directors,” as to meet the numerical requirements of clauses (i) and (ii) aboveapplicable.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting Effective as of the stockholders Original Issue Date, the Corporation shall elect to the board of directors three directors designated by the holders of such stock (such directors, together with their replacements as provided below, the "Designated Directors"), one of whom shall be a Class I director, one of whom shall be a Class II director, and until one of whom shall be a Class III director. The holders of a majority of the Termination Date Series B Cumulative Convertible Preferred Stock shall designate the classes of such initial Designated Directors. (as defined belowi) In the event that any Designated Director shall resign, be unable to serve, or be removed (a "Replaced Designated Director"), the Company will cause its Board holders of Directors (the “Board”) or a committee majority of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will Series B Cumulative Convertible Preferred Stock shall have the right to nominate: (i) designate a replacement to serve as Designated Director until the number next meeting of members shareholders at which directors of the Board equal to one fewer than same class as the Replaced Designated Director are elected. Any Designated Director may be removed from the Board, with or without cause, by the holders of a majority of the then current number Series B Cumulative Convertible Preferred Stock. (ii) Except as provided below, at any time when the term of members a Designated Director shall have ended and there shall be a meeting of shareholders of the Board if there Corporation to elect directors, the Corporation shall nominate for election to the board of directors, as a successor to any Designated Director serving pursuant to Section 13(a) or clause (i) of such provision, such person as is an odd number designated to be a Designated Director by the holders of members of the Board or two fewer than a majority of the then current members Series B Cumulative Convertible Preferred Stock. (iii) In the event that the holders of the Board if there is an even number Series B Cumulative Convertible Preferred Stock dispose of members of the Board, in either case if AES, AES’s Family Members such stock or Conversion Shares (as defined below) representing more than sixty-six and AES’s Affiliates two-thirds percent (as defined below66-2/3%) hold, in the aggregate, 30 and less than or equal to eighty percent or more (80%) of the outstanding common voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to two. If there are then more than two Designated Directors serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director. (iv) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than eighty percent (80%) and less than or equal ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to one. If there is then more than one Designated Director serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove all but one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director(s). (v) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), there shall be no Designated Directors and any Designated Directors then serving on the board shall be removed, and their terms in office shall immediately expire, without any further action of the holders of such stock. (vi) The right to nominate directors pursuant to this provision is in addition to, and not in limitation of, any other rights and powers of the Series B Cumulative Convertible Preferred Stock. Directors nominated by the holders of the Series B Cumulative Convertible Preferred Stock in their capacity as holders of capital stock of the Company; Corporation and not pursuant to clause (i), (ii), or (iiiii) one member above are not Designated Directors for purposes of this Certificate of Vote. (vii) The vote of the Board if AES, AES’s Family Members and AES’s Affiliates hold, holders of Series B Cumulative Convertible Preferred Stock referred to in this Section may be exercised at a meeting of such holders or by written consent of holders with the aggregate, 10 percent or more but less than 30 percent requisite percentage of the outstanding common stock voting power outstanding. (viii) Upon the reasonable request of the Company Corporation, the holders of the Series B Cumulative Convertible Preferred Stock shall certify in writing to the Corporation their holding of Conversion Shares. (the “AES Nominees”). ix) For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.this Section:

Nomination of Directors. (a) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined belowSubject to Section 5.05(b), the Company will cause its Fund shall not itself, nor shall it initiate, suggest or otherwise encourage the Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be electedPerson to, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” nominate any individual as a candidate for election to the election Board of any AES Nominee Directors, or (ii) grant voting discretion to management to be voted “FOR” the election of appoint any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director individual to fill any vacancy on the Board whether created of Directors. The Fund shall not support, endorse or otherwise encourage the election of any candidate for election to the Board of Directors other than a candidate or candidates nominated by the resignation, death, disability, or removal Board of any director, or by the increase or decrease Directors except as set forth in the number of directors on the Board so as to meet the numerical requirements of clauses Section 5.05(b). (i) Notwithstanding the foregoing, for so long as the Fund Beneficially owns 5% or more of the issued and outstanding Capital Stock, but in no event for a period of time longer than five (5) years from the date hereof, the Fund will have the right to propose a slate of three (3) individuals from which the Board of Directors will nominate one (1) such individual to serve as a member of the Board of Directors (the "Designated Member"). If none of such proposed individuals (or any additional proposed individuals) are reasonably acceptable to the Board of Directors for election to the Board of Directors, the Board of Directors will promptly notify the Fund of such determination and the Fund will propose one or more additional individuals from which the Board of Directors will choose. Each of the individuals proposed by the Fund must (i) qualify as an Independent Director, (ii) abovenot hold an elective or appointive full- time governmental office or be an employee of any governmental body or agency or have held such office in New York State or have been so employed in New York State for the prior three (3) years and (iii) acknowledge in writing that notwithstanding his or her designation by the Fund, he or she owes fiduciary duties to all stockholders to the same extent as the other members of the Board of Directors. For so long as the Fund has the rights set forth in the first sentence of this Section 5.05 (b)(i), the Designated Member shall be submitted to the stockholders of the Company for election in the manner by which a Qualified Candidate (as defined in the By-laws of the Company) is submitted to the stockholders for election by the Independent Board Majority. The Designated Member shall be a Class III director whose term shall expire in 2005. For so long as the Fund has the rights set forth in the first sentence of this Section 5.05(b)(i), in the event the Designated Member resigns before the end of his or her term and at the end of the Designated Member's term, the Fund shall be entitled to propose a new Designated Member in accordance with the procedures established by this Section 5.05(b)(i). (i) So long as the Fund Beneficially Owns twenty percent (20%) or more of the outstanding Capital Stock of the Company, and subject to the provisions of this Section 5.05(b)(ii), the Company acknowledges and agrees that the Designated Member may, from time to time on a quarterly basis, meet with the members of the board of the Fund to discuss matters involving the Company and relevant to the Fund's investment in the Company. Any such communications between the Designated Member and the members of the board of the Fund will be conducted on a confidential basis (and not in any meeting of the members of the board of the Fund that may be open to the public) in compliance with the confidentiality agreement in the form agreed to by the parties (as it may be amended from time to time) (the "Confidentiality Agreement"). The provisions of this Section 5.05(b)(ii) shall automatically terminate and be of no force and effect from and at the time that the Fund Beneficially Owns less than twenty percent (20%) of the outstanding Capital Stock of the Company. (ii) At the expiration of the current terms of the Class I directors in 2003, the Company will cause two (2) members of such class who are not Independent Directors not to stand for re-election, and in lieu thereof to nominate for election to the Board of Directors two (2) other individuals who, if elected, would qualify as Independent Directors.

Nomination of Directors. (a) Following Only persons who are nominated in accordance with the Company’s 2004 annual procedures set forth in these bylaws shall be eligible for election as directors. Nominations of persons for election to the board of the corporation may be made at a meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders shareholders at which members of the Board directors are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that elected only (i) are marked “FOR” on behalf of the election board of any AES Nominee directors, by the Governance Committee of the board of directors in accordance with Article V of these bylaws and subject to paragraph (b) of Article VII of the amended and restated articles of incorporation or (ii) grant voting discretion by any shareholder of the corporation entitled to management to be voted “FOR” vote for the election of any AES Nominee eligible for election directors at such meeting. (b) Following the Company’s 2004 annual meeting who complies with the notice procedures set forth in this Section 11. Such nominations, other than those made by or at the direction of the stockholders and until the Termination Date, AES will have the right to nominate: board as described in clause (i) above, shall be made by timely notice in writing to the number of members corporate secretary. To be timely, a shareholder's notice shall be delivered or mailed to and received at the principal executive office of the Board equal corporation not less than 60 days prior to one fewer than a majority the date of the then current number of members meeting, provided, however, that in the event that less than 70 days’ notice or prior disclosure of the Board if there date of this meeting is an odd number given or made to shareholders, notice by the shareholders to be timely must be so received not later than the close of members business on the 10th day following the date on which such notice of the Board or two fewer than a majority date of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AESmeeting was mailed or such public disclosure was made. Such shareholder’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses notice shall set forth (i) as to each person whom such shareholder proposes to nominate for election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), and (ii) aboveas to the shareholder giving the notice (a) the name and address, as they appear on the corporation’s share register, of such shareholder and (b) the class and number of shares of the corporation’s capital stock that are beneficially owned by such shareholder, and shall be accompanied by the written consent of each such person to serve as a director of the corporation, if elected. At the request of the board acting through the Governance Committee, any person nominated at the direction of the board by such committee for election as a director shall furnish to the corporate secretary that information required to be set forth in a shareholder’s notice of nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the provisions of this Section 11. The officer of the corporation or other person presiding at the meeting shall, if the facts so warrant, determine and declare to the meeting that a nomination was not made in accordance with such provisions and, if he shall so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

Nomination of Directors. (a) Following For so long as Cap I and Cap II own an aggregate of twenty percent (20%) or more of the outstanding Common Stock as of the relevant Qualification Date, the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined below), the Company will cause acting through its Board of Directors (Directors, shall, subject to the “Board”) or a committee other provisions of this Agreement, be obligated to nominate for election to the Board of Directors, as members of the slate of nominees for election to the Board to nominate all of Directors proposed by the management of the AES Nominees (as defined below) for membership on the Board Company in its proxy statement at each annual meeting of the stockholders of the Company, Company (or at any other special meeting of the stockholders in lieu thereof) at which members of the Board Class III Directors are to be elected, one Qualified Nominee designated by Cap I and at every adjournment or postponement of any such meetingone Qualified Nominee designated by Cap II, but, if at any such meeting there is already each as a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meetingClass III Director. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) If the number of members Class III Directors is increased to more than two (2), the Company shall only be obligated to nominate the two Qualified Nominees so designated by Cap I and Cap II for such class. (c) Upon the occurrence of a vacancy in the Board equal to one fewer than of Directors that results from the removal or resignation of a majority designee of the then current number of members of the Board if there is an odd number of members of the Board either Cap I or two fewer than a majority of the then current members of the Board if there is an even number of members of the BoardCap II, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; , acting through its Board of Directors, shall be obligated to elect a Qualified Nominee designated by Cap I or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the CompanyCap II, as the case may be, will have the right to nominate a director to fill such vacancy. (d) If Cap I or Cap II shall not continue to own of record at least five percent (5%) of the outstanding Common Stock on any vacancy on Qualification Date, the rights of such limited partnership under Section 3(a) shall be exercised by the limited partnership that continues to own more than five percent (5%) of the outstanding Common Stock. (e) Cap I and Cap II shall notify the Company in writing of their designees to the Board whether created by of Directors no later than thirty (30) days after the resignation, death, disability, or removal of any director, or by the increase or decrease Qualification Date in the number case of directors on Section 3 (a) above and no later than ten (10) days after the Board so as to meet occurrence of a vacancy in the numerical requirements case of clauses (i) and (iiSection 3(c) above. (f) The Company, upon receipt of the notice of the designees of Cap I and Cap II pursuant to Section 3(a), shall use all reasonable efforts to solicit proxies from its stockholders in favor of the election of such designees. (g) The Company shall not be obligated to nominate, or solicit proxies from its stockholders in favor of the election of, any individual that is not a Qualified Nominee.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined belowSubject to Section 5.05(b), the Company will cause its Fund shall not itself, nor shall it initiate, suggest or otherwise encourage the Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be electedPerson to, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” nominate any individual as a candidate for election to the election Board of any AES Nominee Directors, or (ii) grant voting discretion to management to be voted “FOR” the election of appoint any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director individual to fill any vacancy on the Board whether created of Directors. The Fund shall not support, endorse or otherwise encourage the election of any candidate for election to the Board of Directors other than a candidate or candidates nominated by the resignationBoard of Directors except as set forth in Section 5.05(b). (b) Notwithstanding the foregoing, deathfor so long as the Fund Beneficially owns 5% or more of the issued and outstanding Capital Stock, disabilitybut in no event for a period of time longer than five (5) years from the date hereof, the Fund will have the right to propose a slate of three (3) individuals from which the Board of Directors will nominate one (1) such individual to serve as a member of the Board of Directors (the "Designated Member"). If none of such proposed individuals (or removal any additional proposed individuals) are reasonably acceptable to the Board of any directorDirectors for election to the Board of Directors, the Board of Directors will promptly notify the Fund of such determination and the Fund will propose one or more additional individuals from which the Board of Directors will choose. Each of the individuals proposed by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses Fund must (i) and qualify as an Independent Director, (ii) abovenot hold an elective or appointive full-time governmental office or be an employee of any governmental body or agency or have held such office in New York State or have been so employed in New York State for the prior three (3) years and (iii) acknowledge in writing that notwithstanding his or her designation by the Fund, he or she owes fiduciary duties to all stockholders to the same extent as the other members of the Board of Directors. For so long as the Fund has the rights set forth in the first sentence of this Section 5.05(b)(i), the Designated Member shall be submitted to the stockholders of the Company for election in the manner by which a Qualified Candidate (as defined in the By-laws of the Company) is submitted to the stockholders for election by the Independent Board Majority. The Designated Member shall be a Class III director whose term shall expire in 2005. For so long as the Fund has the rights set forth in the first sentence of this Section 5.05(b)(i), in the event the Designated Member resigns before the end of his or her term and at the end of the Designated Member's term, the Fund shall be entitled to propose a new Designated Member in accordance with the procedures established by this Section 5.05(b)(i).

Nomination of Directors. (a) Following The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall have the Company’s 2004 annual meeting right to designate nominees for one-half of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are for so long as the total number of shares of Common Stock owned by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders constitutes at least fifty percent (50%) of the outstanding Common Stock of the Company. If such percentage ownership falls below 50%, the number of nominees for director that the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall have the right to designate will be elected, and at every adjournment or postponement reduced to the number of any such meeting, but, if at any such meeting there is already directors which constitutes a full slate of AES Nominees percentage representation on the Board whose terms do not expire equal to the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders' aggregate percentage ownership of the outstanding Common Stock; PROVIDED that so long as the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders own at such meetingleast five percent (5%) of the outstanding Common Stock, the Company will ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall have no obligation the right to nominate any AES Nominees under this Agreement designate at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible least one nominee for election at such meetingdirector. (b) Following In the Company’s 2004 annual event that the Board is classified such that directors serve staggered terms, then at any meeting of at which directors are elected, the stockholders and until the Termination Date, AES will ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall have the right to nominate: (i) designate nominees for election at such meeting such that the number of members of nominees so designated, together with incumbent directors who had previously been nominated by the Board equal to one fewer than a majority of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders, does not exceed the then current maximum number of members nominees for director that the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders may designate pursuant to Section 4.01(a) (c) In the event of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, deathrenewal or death of a director nominated by the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders, disability, or removal the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall have the right to designate the nominee for election to fill such vacancy. (d) To the extent the Company's proxy statement for any annual meeting includes a recommendation regarding the election of any directorother nominees to the Board, or by the increase or decrease Company agrees to include a recommendation that the Company's stockholders vote in favor of the number nominees of directors on the Board ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders. (e) The parties to this Agreement agree to take all actions necessary so as to meet that, notwithstanding any other provision of this Agreement, at no time persons who are nominees of the numerical requirements ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Stockholders shall constitute more than one half of clauses (i) and (ii) abovethe members of the Board.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date Each Eligible Investor (as defined below), the Company will cause other than Reuters or its Board of Directors (the “Board”transferees) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will shall have the right to nominatenominate for election to the Board of Directors that number of directors (each, a "DESIGNATED DIRECTOR") determined in accordance with the following formula: (i) the total number of members of the Board equal of Directors (which, as of the date of this Agreement is eight (8)) multiplied by the percentage of the total voting power of all outstanding Savvis Voting Stock represented by the Savvis Voting Stock owned by such Eligible Investor, rounded down to one fewer the nearest whole number; provided that, in the event that WCAS and its Affiliates collectively own of record Savvis Voting Stock representing more than 50% of the voting power represented by the then validly issued and outstanding Savvis Voting Stock, the number of Designated Directors such Investors shall be able to appoint shall not be less than a majority number that is at least half of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board; and provided further that each such Eligible Investor will be entitled to nominate at least one director for election to the Board in accordance with this Section 6(a) so long as such Eligible Investor (and, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, solely in the aggregatecase of WCAS, 30 together with its Affiliates) owns of record Savvis Voting Stock representing at least five percent (5%) of the total voting power of all outstanding Savvis Voting Stock. (b) In the event that any Investor ceases to be such an Eligible Investor or otherwise ceases to own a sufficient number of shares of Savvis Voting Stock to entitle it to nominate the number of directors it then has on the Board of Directors, such Investor shall use its best efforts promptly to cause the resignation of one or more of its Designated Director(s) from the outstanding common stock Board of Directors and, if such resignation is not obtained, to vote its shares of Savvis Voting Stock in favor of the Company; removal of one or more of its Designated Director(s) from the Board of Directors, in each case so that the number of Designated Directors, if any, of such Investor shall be consistent with such Investor's rights under Section 6(a). (iic) one member The Investors and Savvis hereby further agree that in the event a Designated Director shall cease to serve as a director of Savvis, the vacancy resulting therefrom (including a vacancy on any committee of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates Directors) will be measured on filled promptly by the record date for the relevant meeting of Board or the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Companyof Savvis, as the case may be, will have in each case as provided in the right Bylaws of the Company, with a substitute Designated Director nominated pursuant to nominate Section 6(d) below. (d) The selection of a director substitute Designated Director to fill any a vacancy on the Board whether of Directors shall be made as follows: (1) in the event the vacancy has been created by the resignation, death, disability, resignation or removal of any directorthe Designated Director of an Eligible Investor pursuant to Section 6(b), or the substitute Designated Director shall be selected by the increase remaining members of the Board of Directors, or, if another Eligible Investor has replaced the Eligible Investor whose Designated Director has resigned or decrease been removed, then such other Eligible Investor shall select the substitute Designated Director. (2) in the number event the vacancy has been created other than by reason of directors on the Board so as resignation or removal of the Designated Director of an Eligible Investor pursuant to meet Section 6(b), the numerical requirements substitute Designated Director shall be selected by the Eligible Investor who nominated the director whose position is to be filled. (e) Savvis agrees subject to fiduciary obligations to take all actions necessary to cause the terms of clauses Section 6(a) to be affected in accordance with their terms. (f) The provisions of this Section 6 shall continue in force and effect until the earlier to occur of (i) the date on which no shares of Preferred Stock are outstanding and (ii) abovethe date on which there are no Eligible Investors.

Nomination of Directors. (a) Following the Company’s 2004 annual meeting Effective as of the stockholders Original Issue ----------------------- Date, the Corporation shall elect to the board of directors three directors designated by the holders of such stock (such directors, together with their replacements as provided below, the "Designated Directors"), one of whom shall be a Class I director, one of whom shall be a Class II director, and until one of whom shall be a Class III director. The holders of a majority of the Termination Date Series B Cumulative Convertible Preferred Stock shall designate the classes of such initial Designated Directors. (as defined belowi) In the event that any Designated Director shall resign, be unable to serve, or be removed (a "Replaced Designated Director"), the Company will cause its Board holders of Directors (the “Board”) or a committee majority of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will Series B Cumulative Convertible Preferred Stock shall have the right to nominate: (i) designate a replacement to serve as Designated Director until the number next meeting of members shareholders at which directors of the Board equal to one fewer than same class as the Replaced Designated Director are elected. Any Designated Director may be removed from the Board, with or without cause, by the holders of a majority of the then current number Series B Cumulative Convertible Preferred Stock. (ii) Except as provided below, at any time when the term of members a Designated Director shall have ended and there shall be a meeting of shareholders of the Board if there Corporation to elect directors, the Corporation shall nominate for election to the board of directors, as a successor to any Designated Director serving pursuant to Section 13(a) or clause (i) of such provision, such person as is an odd number designated to be a Designated Director by the holders of members of the Board or two fewer than a majority of the then current members Series B Cumulative Convertible Preferred Stock. (iii) In the event that the holders of the Board if there is an even number Series B Cumulative Convertible Preferred Stock dispose of members of the Board, in either case if AES, AES’s Family Members such stock or Conversion Shares (as defined below) representing more than sixty-six and AES’s Affiliates two-thirds percent (as defined below66-2/3%) hold, in the aggregate, 30 and less than or equal to eighty percent or more (80%) of the outstanding common voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to two. If there are then more than two Designated Directors serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director. (iv) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than eighty percent (80%) and less than or equal ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), the number of Designated Directors shall be reduced to one. If there is then more than one Designated Director serving on the board, the holders of a majority of the Series B Cumulative Convertible Preferred Stock shall remove all but one such Designated Director and the holders of such stock shall not have any right, pursuant to clause (ii) or otherwise, to cause the Corporation to nominate a designated successor to such removed director(s). (v) In the event that the holders of the Series B Cumulative Convertible Preferred Stock dispose of such stock or Conversion Shares representing more than ninety percent (90%) of the voting power of the Series B Cumulative Convertible Preferred Stock issued on the Original Issue Date (plus any payment-in-kind dividends paid thereon), there shall be no Designated Directors and any Designated Directors then serving on the board shall be removed, and their terms in office shall immediately expire, without any further action of the holders of such stock. (vi) The right to nominate directors pursuant to this provision is in addition to, and not in limitation of, any other rights and powers of the Series B Cumulative Convertible Preferred Stock. Directors nominated by the holders of the Series B Cumulative Convertible Preferred Stock in their capacity as holders of capital stock of the Company; Corporation and not pursuant to clause (i), (ii), or (iiiii) one member above are not Designated Directors for purposes of this Certificate of Vote. (vii) The vote of the Board if AES, AES’s Family Members and AES’s Affiliates hold, holders of Series B Cumulative Convertible Preferred Stock referred to in this Section may be exercised at a meeting of such holders or by written consent of holders with the aggregate, 10 percent or more but less than 30 percent requisite percentage of the outstanding common stock voting power outstanding. (viii) Upon the reasonable request of the Company Corporation, the holders of the Series B Cumulative Convertible Preferred Stock shall certify in writing to the Corporation their holding of Conversion Shares. (the “AES Nominees”). ix) For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.this Section:

Nomination of Directors. (a) Following Until such time that the Group holds less than one-half of the number of shares of Common Stock held by it in the aggregate on February 14, 1997(as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company’s 2004 ), the Group shall have the right to nominate for election (i) two (2) individuals as members of the Board of Directors of the Company, and upon such nomination by the Group such nominees shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, however, that at least one (1) of such nominees shall be Silver or ▇▇▇▇▇▇▇▇, and (ii) all other directors of the Company other than the individuals nominated pursuant to Section 2.1(a)(i) above and the individual, if any, to be nominated by MS Equity pursuant to the letter agreement dated of even date herewith between MS Equity and the Company, and upon such nomination by the Group such additional nominees shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation. (b) From and after the time that the Group holds less than one-half of the number of shares of Common Stock held by it on February 14, 1997 (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company) and until such time that the Group beneficially owns less than five percent (5%) of the outstanding Common Stock (determined in accordance with Rule 13d-3 of the General Rules and Regulations promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement), the Group shall have the right to nominate for election a total of one (1) individual as a member of the Board of Directors of the Company, and upon such nomination by the Group such nominee shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, however, that such nominee shall be Silver or ▇▇▇▇▇▇▇▇. (c) In the event that (i) either Silver or ▇▇▇▇▇▇▇▇ (not including any of their Affiliates, Family Transferees or Estates) notifies the Board of Directors of the Company that the Group cannot agree on an individual for any of the nominees for election to the Company's Board of Directors pursuant to Section 2.1(a) or 2.1(b) above or (ii) at least 45 days prior to any annual meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or the Group fails to nominate for election at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate the requisite number of AES Nominees on individuals to stand for election to the Company's Board whose terms do not expire of Directors at such meeting, then the Company will Board of Directors shall have no obligation the right in lieu of the Group to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and for election to the Company’s bylaws, 's Board of Directors in accordance with the Company will cause all proxies received by the Company Company's certificate of incorporation such number of individuals that Silver and ▇▇▇▇▇▇▇▇ could not agree on as nominees as contemplated in clause (i) are marked “FOR” of this paragraph (c) or that the election of any AES Nominee or Group so failed to nominate as contemplated in clause (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meetingthis paragraph (c). (b) Following the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.

Nomination of Directors. (a) Following Only persons who are nominated in accordance with the Company’s 2004 annual procedures set forth in these bylaws shall be eligible for election as directors. Nominations of persons for election to the board of the corporation may be made at a meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders shareholders at which members of the Board directors are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that elected only (i) are marked “FOR” on behalf of the election board of any AES Nominee directors, by the Governance Committee of the board of directors in accordance with Article V of these bylaws and subject to paragraph (b) of Article VII of the amended and restated articles of incorporation or (ii) grant voting discretion by any shareholder of the corporation entitled to management to be voted “FOR” vote for the election of any AES Nominee eligible for election directors at such meeting. (b) Following the Company’s 2004 annual meeting who complies with the notice procedures set forth in this Section 11. Such nominations, other than those made by or at the direction of the stockholders and until the Termination Date, AES will have the right to nominate: board as described in clause (i) above, shall be made by timely notice in writing to the number of members corporate secretary. To be timely, a shareholder's notice shall be delivered or mailed to and received at the principal executive office of the Board equal corporation not less than 60 days prior to one fewer than a majority the date of the then current number of members meeting, provided, however, that in the event that less than 70 days' notice or prior disclosure of the Board if there date of this meeting is an odd number given or made to shareholders, notice by the shareholders to be timely must be so received not later than the close of members business on the 10th day following the date on which such notice of the Board or two fewer than a majority date of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent meeting was mailed or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”)such public disclosure was made. For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses Such shareholder's notice shall set forth (i) as to each person whom such shareholder proposes to nominate for election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected), and (ii) aboveas to the shareholder giving the notice (a) the name and address, as they appear on the corporation's share register, of such shareholder and (b) the class and number of shares of the corporation's capital stock that are beneficially owned by such shareholder, and shall be accompanied by the written consent of each such person to serve as a director of the corporation, if elected. At the request of the board acting through the Governance Committee, any person nominated at the direction of the board by such committee for election as a director shall furnish to the corporate secretary that information required to be set forth in a shareholder's notice of nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the provisions of this Section 11. The officer of the corporation or other person presiding at the meeting shall, if the facts so warrant, determine and declare to the meeting that a nomination was not made in accordance with such provisions and, if he shall so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

Nomination of Directors. (a) Following Upon the Company’s 2004 annual meeting effectiveness of the stockholders and until the Termination Date (as defined below)Share Purchase Agreement, the Company will cause its size of the Board of Directors shall be increased to ten (10), with the “Board”) or a committee right of the Board of Directors to nominate all further increase the size of the AES Nominees Board of Directors to twelve (12) in connection with the Initial Public Offering. For so long as defined belowthe Purchaser owns at least fifteen percent (15%) for membership of the Company's outstanding Common Stock (determined on a fully diluted basis), upon the Board request of the Purchaser, Nevasa shall vote, at each annual any regular or special meeting of the stockholders of the Company at which Directors will be elected or in any written consent executed in lieu of such a meeting of stockholders, all of its shares of Common Stock in favor of (and shall cause all of its Directors on the Board of Directors to vote in favor of), two persons nominated by the Purchaser to be Directors of the Company. For so long as the Purchaser owns less than fifteen percent (15%), or but at least five percent (5%), of the Company's outstanding Common Stock (determined on a fully diluted basis), upon the request of the Purchaser, Nevasa shall vote, at any other regular or special meeting of the stockholders of the Company at which members Directors will be elected or in any written consent executed in lieu of the Board are to be electedsuch a meeting of stockholders, all of its shares of Common Stock in favor of (and at every adjournment or postponement shall cause all of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees its Directors on the Board whose terms do not expire at such meetingof Directors to vote in favor of), one person nominated by the Company will have no obligation Purchaser to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and be a Director of the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following For so long as Nevasa votes its shares of Common Stock in favor of such nominees as Purchaser may nominate pursuant to Section 5.1(a) above, the Purchaser and all of its Affiliates shall vote their shares of Common Stock in favor of (and shall cause all of their Directors on the Board of Directors to vote in favor of) all of the persons that Nevasa may nominate to be Directors of the Company’s 2004 annual , at any regular or special meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates at which Directors will be measured on the record date for the relevant elected or in any written consent executed in lieu of such a meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) abovestockholders.

Nomination of Directors. (1) Subject to the Business Corporations Act , if and for so long as the Company is a Public Company, only persons who are nominated in accordance with the procedures set out in this Article 14.12 shall be eligible for election as directors to the board of directors. Nominations of persons for election to the board at any annual meeting of shareholders, or at any special meeting of shareholders if one of the purposes for which the special meeting was called was the election of directors, may be made: (a) Following by or at the Companydirection of the board, including pursuant to a notice of meeting; (b) by or at the direction or request of one or more shareholders pursuant to a “proposal” made in accordance with Division 7 of the Business Corporations Act or a requisition of shareholders made in accordance with the provisions of the Business Corporations Act; or (c) by any person entitled to vote at such a meeting (a “Nominating Shareholder”) (A) who is, at the close of business on the date of giving notice provided for below in this Article 14.12, and on the record date for notice of the meeting, either entered in the securities register of the Company as a holder of one or more shares carrying the right to vote at the meeting or who beneficially owns shares that are entitled to be voted at the meeting; and (B) who complies with the notice procedures set forth below in this Article 14.12. (2) In addition to any other applicable requirement, for a nomination to be validly made by a Nominating Shareholder, the Nominating Shareholder must deliver notice (“Notice”) thereof that is both timely (in accordance with subparagraph (3) below) and in proper written form (in accordance with subparagraph (4) below) to the corporate secretary of the Company at the principal executive offices of the Company in accordance with subparagraph (6) below. (3) To be timely under this Article 14.12, the Nominating Shareholder’s 2004 Notice to the corporate secretary of the Company must be made: (a) in the case of an annual meeting of shareholders (including an annual and special meeting), not less than 30 nor more than 65 days prior to the stockholders date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is called for a date that is less than 50 days after the date (the “Notice Date”) on which the first public announcement (as defined below) of the date of the annual meeting was made, notice by the Nominating Shareholder may be made not later than the close of business on the 10th day following the Notice Date; and (b) in the case of a special meeting (which is not also an annual meeting) of shareholders called for any purpose which includes the election of directors to the board, not later than the close of business on the 15th day following the day on which the first public announcement of the date of the special meeting is made by the Company. (4) To be in proper written form, the Notice must set forth: (a) as to each person whom the Nominating Shareholder proposes to nominate for election as a director: the name, age, business, and until residential address of the Termination Date person; the principal occupation, business or employment for the preceding five years of the person; the class or series and number of shares of the Company which are controlled or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of the Notice; (v) confirmation that the person meets the qualifications of directors set out in the Business Corporations Act; and (vi) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting.; and (b) Following as to the Company’s 2004 annual meeting of Nominating Shareholder giving the stockholders and until the Termination DateNotice, AES will have the right to nominate: (i) the class or series and number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock shares of the Company (which are controlled or which are owned beneficially or of record by the “AES Nominees”). For purposes Nominating Shareholder as of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of shareholders (if such date has been made publicly available and shall have occurred) and as of the stockholders date of such Notice; (ii) full particulars regarding any proxy, contract, agreement, arrangement or understanding pursuant to which such Nominating Shareholder has a vacancy on right to vote or direct the Board existsvoting of any shares of the Company; and (iii) any other information relating to the Nominating Shareholder that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below). (5) The Company may require any proposed nominee to furnish such other information as may reasonably be required by the Company to determine the eligibility of such proposed nominee to serve as an independent director of the Company or that could be material to a reasonable shareholder’s understanding of the independence, or lack thereof, of the proposed nominee. (6) Notwithstanding any other provision of these Articles, any notice, or other document or information required to be given to the corporate secretary pursuant to this Article 14.12 may only be given by personal delivery, facsimile transmission or by email (at such email address as applicable. This Agreement will may be interpreted in such a manner that AES or stipulated from time to time by the corporate secretary for purposes of this Article 14.12), and shall be deemed to have been received and made only at the time it is served by personal delivery to the corporate secretary at the address of the principal executive offices of the Company, email (at the address as aforesaid) or sent by facsimile transmission (provided that receipt of confirmation of the case may betransmission has been received); provided that if such delivery or electronic communication is made on a day which is a not a business day or later than 5:00 p.m. (Vancouver time) on a day which is a business day, will then such delivery or electronic communication shall be deemed to have been made on the next following day that is a business day. (7) No person shall be eligible for election as a director of the Company unless nominated in accordance with the provisions of this Article 14.12: provided, however, that nothing herein shall be deemed to preclude discussions by a shareholder (as distinct from nominating directors) at a meeting of shareholders of any matter in respect of which it would have been entitled to submit a proposal pursuant to the provisions of the Business Corporations Act. The chairman of the meeting shall have the right power and duty to nominate determine whether a director to fill any vacancy on nomination was made in accordance with the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease procedures set forth in the number foregoing provisions and, if any proposed nomination is not in compliance with such foregoing provisions, to declare that such defective nomination shall be disregarded. (8) For purposes of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.this Article 14.12:

Nomination of Directors. (a) Following It is the intention of the parties that ----------------------- Saratoga remain in a majority position with respect to stock ownership and board representation. The following procedures shall govern the nomination of directors of the Company’s 2004 annual meeting : (i) Two directors of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”"Saratoga Directors") or shall be nominated by Saratoga; provided, however, that Saratoga shall be entitled to nominate a committee majority of the directors to the Board of Directors so long as it and any of its Permitted Transferees (as hereinafter defined);(a) continue to nominate all hold a majority of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the CompanyVoting Shares or, or at any other meeting of the stockholders at which members of the Board are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following the Company’s 2004 annual meeting if Saratoga does not alienate any of the stockholders its stock and until the Termination Date, AES will becomes diluted below 50% Saratoga shall continue to have the right to nominate: (i) the number of members of the Board equal to one fewer than elect a majority of the then current number Board of members Directors, or (c) if Saratoga does alienate a portion of its stock, and as a result of such alienation its shareholdings are not less than 52%, and Saratoga subsequently becomes diluted below 50%, Saratoga shall continue to have the Board if there is an odd number of members of the Board or two fewer than right to elect a majority of the Board of Directors. During any period when Saratoga owns less than 52 percent (52%) it cannot redeem any shares. If at any time Saratoga no longer holds a majority of the Voting Shares, other than as a result of a sale of Voting Shares to a third party, Saratoga shall have the option to purchase such number of additional Preferred Shares as is necessary to increase its shareholding to 52 percent (52%) of the Voting Shares. Any purchase pursuant to this Section 2.1(b)(i) shall be at the then current members Fair Value. (ii) Two directors of the Board if there is an even number of members Directors (the "Management Directors") shall be nominated by the Representatives of the Board, in either case if AES, AES’s Family Members Management Investors (as defined belowhereinafter defined). (iii) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member One director of the Board if AES, AES’s Family Members of Directors shall be nominated by mutual agreement of Saratoga and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent Representatives of the outstanding common stock Management Investors, which director shall not be an employee of the Company (the “AES Nominees”"Independent Director"). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting . (iv) Any other director of the stockholders or Board of Directors (a vacancy on "Non- Designated Director") may be nominated by mutual agreement of Saratoga and the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) aboveManagement Investors.

Nomination of Directors. (a) Following Until such time that the Group holds less than one-half of the number of shares of Common Stock held by it in the aggregate on February 14, 1997(as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the capital stock of the Company’s 2004 annual meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Group shall have the right to nominate for election (i) two (2) individuals as members of the Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, and upon such nomination by the Group such nominees shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, however, that at least one (1) of such nominees shall -------- ------- be Silver or at any ▇▇▇▇▇▇▇▇, and (ii) all other meeting directors of the stockholders at which members of Company other than the Board are individuals nominated pursuant to Section 2.1(a)(i) above and the individual, if any, to be elected, and at every adjournment or postponement nominated by MS Equity pursuant to the letter agreement dated of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law even date herewith between MS Equity and the Company’s bylaws, the Company will cause all proxies received and upon such nomination by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible Group such additional nominees shall stand for election at such meetingto the Company's Board of Directors in accordance with the Company's certificate of incorporation. (b) Following From and after the Company’s 2004 annual meeting time that the Group holds less than one-half of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members shares of Common Stock held by it on February 14, 1997 (as adjusted, if necessary, to take into account any stock dividend, stock split, combination of shares, subdivision or recapitalization of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common capital stock of the Company; or (ii) one member of and until such time that the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but Group holds less than 30 five percent (5%) of the outstanding common stock Common Stock (determined in accordance with Rule 13d-3 of the Company (General Rules and Regulations promulgated under the “AES Nominees”Securities Exchange Act of 1934 as in effect on the date of this Agreement). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will Group shall have the right to nominate for election a director to fill any vacancy on total of one (1) individual as a member of the Board whether created of Directors of the Company, and upon such nomination by the resignationGroup such nominee shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, deathhowever, disability, that such nominee -------- ------- shall be Silver or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above▇▇▇▇▇▇▇▇.

Nomination of Directors. Only persons who are nominated in accordance with the procedures set forth in these Bylaws shall be eligible to serve as directors of the Company. Nominations of persons for election to the Board of Directors may be made at a meeting of stockholders (a) Following by or at the Company’s 2004 annual meeting direction of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors or (b) by any stockholder of the “Board”) Company who is a stockholder of record at the time of giving of notice provided for in this Section 2.6, who shall be entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in this Section 2.6. Such nominations, other than those made by or a committee at the direction of the Board of Directors, shall be made pursuant to nominate all timely notice in writing to the Secretary of the AES Nominees (as defined below) for membership on Company. To be timely, a stockholder's notice shall be delivered to or mailed and received at the Board at each annual meeting principal executive offices of the Company not less than 60 days nor more than 90 days prior to the meeting; provided that in the event that less than 70 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders of the Company, or at any other meeting notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the day on which such of the stockholders at which members date of the Board are meeting or such public disclosure was made. Such stockholder's notice shall set for (a) as to each person whom the stockholder proposes to nominate for election or reelection as required to be elected, and at every adjournment or postponement disclosed in solicitations of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the for election of any AES Nominee directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (iiincluding such person's written consent to being named in the proxy statement as a nominee and to serving as a director if elected) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. and (b) Following as to the Company’s 2004 annual meeting of stockholder giving the stockholders and until the Termination Date, AES will have the right to nominate: notice (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Boardname and address, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of they appear on the Company; or (ii) one member 's books, of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) stockholder and (ii) abovethe class and number of shares of the Company's capital stock which are beneficially owned by such stockholder. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a director shall furnish to the Secretary of the Company that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. The chairman of the meeting shall have the power and the duty to (a) determine whether a nomination was made in accordance with the procedures prescribed by this Section 2.6 and, (b) if any nomination was not made in compliance with this Section 2.6, to declare to the meeting that the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 2.6, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in this Section 2.6. 5. The following new Section 2.7 shall be added to Article II of the Bylaws

Nomination of Directors. Only persons who are nominated in accordance with the procedures set forth in the By-laws shall be eligible to serve as Directors. Nominations of persons for election to the Board of Directors of the corporation may be made at a meeting of stockholders (a) Following by or at the Company’s 2004 annual meeting direction of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors or (b) by any stockholder of the “Board”) corporation who is a stockholder of record at the time of giving of notice provided for in this Section 9, who shall be entitled to vote for the election of directors at the meeting and who complies with the notice procedures set forth in this Section 9. Such nominations, other than those made by or a committee at the direction of the Board of Directors, shall be made pursuant to timely notice in writing to the Secretary of the corporation. To be timely, a stockholder's notice shall be delivered to or mailed and received at the principal executive offices of the corporation not less than 90 days; provided, however, that in the event that less than 100 days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the 10th day following the day on which such notice of the date of the meeting or such public disclosure was made. Such stockholder's notice shall set forth (a) as to each person whom the stockholder proposes to nominate for election or reelection as a Director all information relating to such person that is required to be disclosed in solicitations of the AES Nominees (as defined below) proxies for membership on the Board at each annual meeting election of the stockholders of the CompanyDirectors, or at any other meeting is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such person's written consent to being named in the stockholders at which members of the Board are proxy statement as a nominee and to be serving as a Director if elected, ); and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election at such meeting. (b) Following as to the Company’s 2004 annual meeting of stockholder giving the stockholders and until the Termination Date, AES will have the right to nominate: notice (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Boardname and address, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured they appear on the record date for the relevant meeting corporation's books, of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) stockholder and (ii) abovethe class and number of shares of the corporation which are beneficially owned by such stockholder. At the request of the Board of Directors, any person nominated by the Board of Directors for election as a Director shall furnish to the Secretary of the corporation that information required to be set forth in a stockholder's notice of nomination which pertains to the nominee. No person shall be eligible to serve as a Director of the corporation unless nominated in accordance with the procedures set forth in this By-law. The Chairman of the meeting shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the procedures prescribed by the By-laws, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. Notwithstanding the foregoing provisions of this Section 9, a stockholder shall also comply with all applicable requirements of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder with respect to the matters set forth in this Section.

Nomination of Directors. (a) Following Only persons who are nominated in accordance with the Company’s 2004 annual procedures set forth in these bylaws shall be eligible for election as directors. Nominations of persons for election to the board of the corporation may be made at a meeting of the stockholders and until the Termination Date (as defined below), the Company will cause its Board of Directors (the “Board”) or a committee of the Board to nominate all of the AES Nominees (as defined below) for membership on the Board at each annual meeting of the stockholders of the Company, or at any other meeting of the stockholders shareholders at which members of the Board directors are to be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that elected only (i) are marked “FOR” on behalf of the election board of any AES Nominee directors, by the Governance Committee of the board of directors in accordance with Article V of these bylaws and subject to paragraph (b) of Article VII of the amended and restated articles of incorporation or (ii) grant voting discretion by any shareholder of the corporation entitled to management to be voted “FOR” vote for the election of any AES Nominee eligible for election directors at such meeting. (b) Following the Company’s 2004 annual meeting who complies with the notice procedures set forth in this Section 11. Such nominations, other than those made by or at the direction of the stockholders and until the Termination Date, AES will have the right to nominate: board as described in clause (i) above, shall be made by timely notice in writing to the number of members corporate secretary. To be timely, a shareholder’s notice shall be delivered or mailed to and received at the principal executive office of the Board equal corporation not less than 60 days prior to one fewer than a majority the date of the then current number of members meeting, provided, however, that in the event that less than 70 days’ notice or prior disclosure of the Board if there date of this meeting is an odd number given or made to shareholders, notice by the shareholders to be timely must be so received not later than the close of members business on the 10th day following the date on which such notice of the Board or two fewer than a majority date of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AESmeeting was mailed or such public disclosure was made. Such shareholder’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses notice shall set forth (i) as to each person whom such shareholder proposes to nominate for election as a director, all information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including such person’s written consent to being named in the proxy statement as a nominee and to serving as a director if elected), and (ii) aboveas to the shareholder giving the notice (a) the name and address, as they appear on the corporation’s share register, of such shareholder and (b) the class and number of shares of the corporation’s capital stock that are beneficially owned by such shareholder, and shall be accompanied by the written consent of each such person to serve as a director of the corporation, if elected. At the request of the board acting through the Governance Committee, any person nominated at the direction of the board by such committee for election as a director shall furnish to the corporate secretary that information required to be set forth in a shareholder’s notice of nomination which pertains to the nominee. No person shall be eligible for election as a director of the corporation unless nominated in accordance with the provisions of this Section 11. The officer of the corporation or other person presiding at the meeting shall, if the facts so warrant, determine and declare to the meeting that a nomination was not made in accordance with such provisions and, if he shall so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.

Nomination of Directors. (a) Following Subject to the Company’s 2004 provisions of the Business Corporations Act and the articles of the Corporation, only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation. Nominations of persons for election to the board may be made at any annual meeting of shareholders, or at any special meeting of shareholders if one of the stockholders purposes for which the special meeting was called was the election of directors: (i) by or at the direction of the board or an authorized officer of the Corporation, including pursuant to a notice of meeting; (ii) by or at the direction or request of one or more shareholders pursuant to a proposal made in accordance with the provisions of the Business Corporations Act or a requisition of the shareholders made in accordance with the provisions of the Business Corporations Act; or (iii) by any person (a “Nominating Shareholder”): (i) who, at the close of business on the date of the giving by the Nominating Shareholder of the notice provided for below in this paragraph 29 and until at the Termination Date close of business on the record date for notice of such meeting, is entered in the securities register as a holder of one or more shares carrying the right to vote at such meeting or who beneficially owns shares that are entitled to be voted at such meeting; and (ii) who complies with the notice procedures set forth below in this paragraph 29. (b) In addition to any other applicable requirements, for a nomination to be made only by a Nominating Shareholder, the Nominating Shareholder must have given timely notice thereof in proper written form to the secretary of the Corporation at the principal executive offices of the Corporation in accordance with this paragraph 29. (c) To be timely, a Nominating Shareholder’s notice to the secretary of the Corporation must be made: (i) in the case of an annual meeting of shareholders, not less than 30 nor more than 65 days prior to the date of the annual meeting of shareholders; provided, however, that in the event that the annual meeting of shareholders is called for a date that is less than 50 days after the date (the “Notice Date”) on which the first public announcement of the date of the annual meeting was made, notice by the Nominating Shareholder may be made not later than the close of business on the tenth day following the Notice Date; and (ii) in the case of a special meeting (which is not also an annual meeting) of shareholders called for the purpose of electing directors (whether or not called for other purposes), not later than the close of business on the 15th day following the day on which the first public announcement of the date of the special meeting of shareholders was made. Notwithstanding the foregoing, the board may, in its sole discretion, waive any requirement in this paragraph. In no event shall any adjournment or postponement of a meeting of shareholders or the announcement thereof commence a new time period for the giving of a Nominating Shareholder’s notice as described above. (d) To be in proper written form, a Nominating Shareholder’s notice to the secretary of the Corporation must set forth: (i) as to each person whom the Nominating Shareholder proposes to nominate for election as a director: (i) the name, age, business address and residence address of the person; (ii) the principal occupation or employment of the person; (iii) the citizenship of such person; (iv) the class or series and number of shares in the capital of the Corporation which are controlled or which are owned beneficially or of record by the person as of the record date for the meeting of shareholders (if such date shall then have been made publicly available and shall have occurred) and as of the date of such notice; and (v) any other information relating to the person that would be required to be disclosed in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the Business Corporations Act and Applicable Securities Laws (as defined below); and (ii) as to the Nominating Shareholder giving the notice, full particulars of any proxy, contract, arrangement, agreement, understanding or relationship pursuant to which such Nominating Shareholder has a right to vote or direct the Company will cause its Board voting of Directors (the “Board”) or a committee any shares of the Board Corporation and any other information relating to nominate all such Nominating Shareholder that would be required to be made in a dissident’s proxy circular in connection with solicitations of proxies for election of directors pursuant to the AES Nominees Act and Applicable Securities Laws (as defined below). (e) for membership on The Corporation may require any proposed nominee to furnish such other information, including a written consent to act, as may reasonably be required by the Board at each annual meeting Corporation to determine the eligibility of such proposed nominee to serve as an independent director of the stockholders Corporation or that could be material to a reasonable shareholder’s understanding of the Companyindependence, or at any other meeting lack thereof, of the stockholders at which members of the Board are to such proposed nominee. (f) No person shall be elected, and at every adjournment or postponement of any such meeting, but, if at any such meeting there is already a full slate of AES Nominees on the Board whose terms do not expire at such meeting, the Company will have no obligation to nominate any AES Nominees under this Agreement at such meeting. To the extent permitted by law and the Company’s bylaws, the Company will cause all proxies received by the Company that (i) are marked “FOR” the election of any AES Nominee or (ii) grant voting discretion to management to be voted “FOR” the election of any AES Nominee eligible for election as a director of the Corporation unless nominated in accordance with the provisions of this paragraph 29; provided, however, that nothing in this paragraph 29 shall be deemed to preclude discussion by a shareholder (as distinct from nominating directors) at a meeting of shareholders of any matter in respect of which it would have been entitled to submit a proposal pursuant to the provisions of the Act. The chairperson of the meeting shall have the power and duty to determine whether a nomination was made in accordance with the procedures set forth in the foregoing provisions and, if any proposed nomination is not in compliance with such meetingforegoing provisions, to declare that such defective nomination shall be disregarded. (bg) Following For the Company’s 2004 annual meeting of the stockholders and until the Termination Date, AES will have the right to nominate: (i) the number of members of the Board equal to one fewer than a majority of the then current number of members of the Board if there is an odd number of members of the Board or two fewer than a majority of the then current members of the Board if there is an even number of members of the Board, in either case if AES, AES’s Family Members (as defined below) and AES’s Affiliates (as defined below) hold, in the aggregate, 30 percent or more of the outstanding common stock of the Company; or (ii) one member of the Board if AES, AES’s Family Members and AES’s Affiliates hold, in the aggregate, 10 percent or more but less than 30 percent of the outstanding common stock of the Company (the “AES Nominees”). For purposes of determining the number of AES Nominees, the stock ownership of AES, AES’s Family Members and AES’s Affiliates will be measured on the record date for the relevant meeting of the stockholders or a vacancy on the Board exists, as applicable. This Agreement will be interpreted in such a manner that AES or the Company, as the case may be, will have the right to nominate a director to fill any vacancy on the Board whether created by the resignation, death, disability, or removal of any director, or by the increase or decrease in the number of directors on the Board so as to meet the numerical requirements of clauses (i) and (ii) above.this paragraph 29: