Common use of Other Agreements and Representations Clause in Contracts

Other Agreements and Representations. (a) During the Standstill Period, the Company shall not publicly disparage any member of the Ardsley Group or any Affiliate thereof; provided, however, that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure. (b) During the Standstill Period, no member of the Ardsley Group shall, nor shall any member of the Ardsley Group permit any Affiliate of such member to, publicly disparage the Company or any director, officer, employee, Affiliate or Associate of the Company; provided, however, that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure. (c) At a meeting of the Board held on the date hereof, the Board has reviewed, considered and approved an amendment to the Company’s existing non-employee director compensation plan providing for, among other things, a $35,000 annual retainer, payable to each non-employee director of the Company in the form of restricted Common Stock. Unless not required by Nasdaq regulations, such shares shall be issued under the Company’s existing shareholder-approved equity incentive plans. At a meeting of the Board held on the date hereof, the Board has resolved to establish not later than the 20th day after the date hereof a committee of the Board to be constituted with three Company directors and to be titled the “Strategic Alternatives Committee” of the Board. The Strategic Alternatives Committee shall have the directive and be authorized to engage and work with management and the Company’s professional advisors to review the Company’s sales, marketing, channel development and business development strategies and methods, and to review and identify potential financial and strategic alternatives to enhance revenue and Company value. The Strategic Alternatives Committee will formally report its findings and recommendations to the full Board for its consideration within 120 days after the Strategic Alternatives Committee is established. The Chairman of the Strategic Alternatives Committee will be elected by such committee in accordance with the procedures set forth in the charter for such committee. The Strategic Alternatives Committee will not constitute an executive committee of the Board and will not have decision-making authority in the name or on behalf of the Company and shall have no authority to enter into, undertake, make or pursue (in the name or on behalf of the Company) any agreement, arrangement, plan, commitment, understanding, public announcement or transaction, and will only be conferred with the authority to conduct the analyses and review aforementioned and to make one or recommendations to the Board for its consideration. The Board shall appoint one of the Designee Directors to the Strategic Alternatives Committee as one of the committee’s initial members. In making such appointment, the Board shall take into account input from the Designee Directors regarding which of the Designee Directors should be appointed to the Strategic Alternatives Committee. (d) The Board shall, at the first meeting of the CGN Committee following the date hereof, appoint one of the Designee Directors thereto, and at such meeting the CGN Committee shall elect a chairperson thereof in accordance with the charter for such committee. Effective as of the first meeting of the Board following the date hereof, the Board shall choose, taking into account input from the Designee Directors regarding their preferences for committee appointments, one Designee Director to be a member of any new committee of the Board created after the date hereof and prior to the 2015 Annual Meeting. (A) In the event any of the Designee Directors resign from the Board, or die or become permanently disabled or incapacitated prior to the end of their term as directors, the Ardsley Group shall have the right to designate a replacement director, who shall not be an Affiliate, Associate, partner, employee, principal, member or representative of the Ardsley group or any member of the Ardsley Group, to serve in the relevant Class of such director, provided that such replacement director is reasonably acceptable to the Company and shall qualify as an “independent director” under the Nasdaq Rule. (B) If the Class II Designee Director does not both (i) continue to be “independent” for the purposes of the Nasdaq Rule and not be an Affiliate or Associate of the Ardsley Group, and (ii) remain qualified to serve as a director of the Company (as determined in good faith by the CGN Committee of the Board), in each case, as of the time for nomination of directors for the 2014 Annual Meeting (or at any time thereafter but prior to the 2014 Annual Meeting), then the Board shall not be required to comply with Section 4(b) hereof with respect thereto, but instead, the Ardsley Group shall be entitled to designate a replacement nominee for election at the 2014 Annual Meeting who shall meet the qualifications of each of clause (i) and (ii) above and who shall be reasonably acceptable to the CGN Committee and a majority of the Board (not including the disqualified director). Any such replacement director appointed pursuant to this Section 12(e) shall be deemed either a Class II Director Designee or a Class III Director Designee, as applicable, for purposes of this Agreement. (f) Each member of the Ardsley Group shall promptly report any changes in its ownership of Common Stock to the Company and make all applicable filings (under the Securities Act and the Exchange Act) with respect thereto on a timely basis. (g) Each member of the Ardsley Group hereby agrees that it shall cause Ardsley and each of its Controlled Affiliates, current and future, to comply with the terms of this Agreement. (h) Following the date hereof and not later than the date of the 2014 Annual Meeting, the Board will adopt a “best practices” stockholder communications and disclosure policy as advised by counsel to replace any existing stockholder communications and disclosure policy that the Company currently has in place. (i) Anything to the contrary express or implied in this Agreement notwithstanding, the parties hereby agree that this Agreement and the rights and obligations of the parties hereunder shall terminate and be of no further force or effect from and after such time, if any, that the Common Stock no longer is registered pursuant to and the Company no longer is subject to the reporting requirements of any of Sections 12, 13 or 15(d) of the Exchange Act.

Other Agreements and Representations. (a) During Employee acknowledges and reaffirms Employee’s continuing obligations under the Standstill Period, the Company shall not publicly disparage any member terms of the Ardsley Group or any Affiliate thereof; providedEmployment Agreement, howeverincluding without limitation, that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation clauses 13 and are subject to contractual provisions providing for confidential disclosure. (b) During the Standstill Period, no member 14 of the Ardsley Group shall, nor shall any member of the Ardsley Group permit any Affiliate of such member to, publicly disparage the Company or any director, officer, employee, Affiliate or Associate of the Company; provided, however, that this provision shall not apply to compelled testimony, either by legal process, subpoena or otherwise, or to communications that are required by an applicable legal obligation and are subject to contractual provisions providing for confidential disclosure. Employment Agreement (c) At a meeting of the Board held on the date hereof, the Board has reviewed, considered and approved an amendment to the Company’s existing non-employee director compensation plan providing for, among other things, a $35,000 annual retainer, payable to each non-employee director of the Company in the form of restricted Common Stock. Unless not required by Nasdaq regulations, such shares shall be issued under the Company’s existing shareholder-approved equity incentive plans. At a meeting of the Board held on the date hereof, the Board has resolved to establish not later than the 20th day after the date hereof a committee of the Board to be constituted with three Company directors and to be titled the “Strategic Alternatives Committee” Continuing Obligations”). For the avoidance of the Board. The Strategic Alternatives Committee shall have the directive and be authorized to engage and work with management and the Company’s professional advisors to review the Company’s sales, marketing, channel development and business development strategies and methodsdoubt, and without prejudice to review and identify potential financial and strategic alternatives to enhance revenue and Company value. The Strategic Alternatives Committee will formally report its findings and recommendations to the full Board for its consideration within 120 days after the Strategic Alternatives Committee is established. The Chairman of the Strategic Alternatives Committee will be elected by such committee Section 1.6, in accordance with the procedures set forth Employment Agreement’s definition of “Restricted Period,” the Restricted Period shall end on the 12-month anniversary of the Garden Leave Start Date. Employee will at all times cooperate with the Company and its affiliates in its or their investigation, defense or prosecution of any potential or actual claim, charge, suit or investigation by or against the charter Company or its affiliates. As used herein, the term “cooperate” means being reasonably available from time to time for such committeemeetings with counsel for the Company or its affiliates and providing truthful information to counsel, not communicating with private parties known to be adverse to the Company or its affiliates except by way of deposition or trial testimony, being reasonably available for deposition and trial testimony upon request of counsel for the Company or relevant affiliate and without the necessity of a subpoena, and executing those documents and truthful affidavits requested from time to time by counsel to the Company or relevant affiliate. The Strategic Alternatives Committee Company will reimburse Employee for reasonable out of pocket expenses Employee incurs in cooperating with the Company or relevant affiliate provided that Employee obtains prior written approval from the Company. Additionally, Employee will immediately notify the Company’s Chief Legal Officer if Employee receives any written or oral request for information from any persons, or their counsel, who are asserting or investigating matters, claims or litigation asserted against, or otherwise adverse to, the EUROPE-LEGAL-301516574/1 168111-0003 Company or the Releasees (as defined in Exhibit A), unless legally required not constitute an executive committee to disclose such request for information. Notwithstanding the foregoing, nothing herein shall restrict Employee from responding to a valid subpoena, nor shall Employee be prohibited from communicating with any government agency, including Employee’s right to communicate directly with the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, or similar agency, or to cooperate with or participate in any investigation conducted by such agency or to make any other disclosures that are protected under the Board and will whistleblower provisions of applicable law. For the avoidance of doubt, Employee does not have decision-making authority in need to notify or obtain the name or on behalf prior authorization of the Company and shall have no authority to enter into, undertake, make or pursue (in the name or on behalf of the Company) any agreement, arrangement, plan, commitment, understanding, public announcement or transaction, and will only be conferred with the authority to conduct the analyses and review aforementioned and to make one or recommendations to the Board for its consideration. The Board shall appoint one of the Designee Directors to the Strategic Alternatives Committee as one of the committee’s initial members. In making such appointment, the Board shall take into account input from the Designee Directors regarding which of the Designee Directors should be appointed to the Strategic Alternatives Committee. (d) The Board shall, at the first meeting of the CGN Committee following the date hereof, appoint one of the Designee Directors thereto, and at such meeting the CGN Committee shall elect a chairperson thereof in accordance with the charter for such committee. Effective as of the first meeting of the Board following the date hereof, the Board shall choose, taking into account input from the Designee Directors regarding their preferences for committee appointments, one Designee Director to be a member of any new committee of the Board created after the date hereof and prior to the 2015 Annual Meeting. (A) In the event exercise any of the Designee Directors resign from the Boardforegoing rights. Further, or die or become permanently disabled or incapacitated prior to the end of their term as directors, the Ardsley Group shall have the right to designate a replacement director, who shall not be an Affiliate, Associate, partner, employee, principal, member or representative of the Ardsley group or any member of the Ardsley Group, to serve in the relevant Class of such director, provided that such replacement director is reasonably acceptable to the Company and shall qualify as an “independent director” under the Nasdaq Rule. (B) If the Class II Designee Director does not both Employee understands that: (i) continue to Employee will not be “independent” held criminally or civilly liable under any federal or state trade secret law for the purposes disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the Nasdaq Rule and not be an Affiliate purpose of reporting or Associate investigating a suspected violation of the Ardsley Group, and law; (ii) remain qualified Employee will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (iii) if Employee files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Employee may disclose trade secrets to serve as a director Employee’s attorney and use the trade secret information in the court proceeding if Employee: (x) files any document containing the trade secret under seal; and (y) does not disclose the trade secret, except pursuant to court order. In addition, nothing in this Agreement, including the Release, prevents Employee from exercising any protected rights, including under Section 7 of the Company (National Labor Relations Act, or discussing or disclosing information about unlawful acts in the workplace, such as determined in good faith by the CGN Committee of the Board), in each case, as of the time for nomination of directors for the 2014 Annual Meeting (harassment or at discrimination or any time thereafter but prior other conduct that Employee has reason to the 2014 Annual Meeting), then the Board shall not be required to comply with Section 4(b) hereof with respect thereto, but instead, the Ardsley Group shall be entitled to designate a replacement nominee for election at the 2014 Annual Meeting who shall meet the qualifications of each of clause (i) and (ii) above and who shall be reasonably acceptable to the CGN Committee and a majority of the Board (not including the disqualified director). Any such replacement director appointed pursuant to this Section 12(e) shall be deemed either a Class II Director Designee or a Class III Director Designee, as applicable, for purposes of this Agreementbelieve is unlawful. (f) Each member of the Ardsley Group shall promptly report any changes in its ownership of Common Stock to the Company and make all applicable filings (under the Securities Act and the Exchange Act) with respect thereto on a timely basis. (g) Each member of the Ardsley Group hereby agrees that it shall cause Ardsley and each of its Controlled Affiliates, current and future, to comply with the terms of this Agreement. (h) Following the date hereof and not later than the date of the 2014 Annual Meeting, the Board will adopt a “best practices” stockholder communications and disclosure policy as advised by counsel to replace any existing stockholder communications and disclosure policy that the Company currently has in place. (i) Anything to the contrary express or implied in this Agreement notwithstanding, the parties hereby agree that this Agreement and the rights and obligations of the parties hereunder shall terminate and be of no further force or effect from and after such time, if any, that the Common Stock no longer is registered pursuant to and the Company no longer is subject to the reporting requirements of any of Sections 12, 13 or 15(d) of the Exchange Act.