Common use of The Group Clause in Contracts

The Group. (a) From the date hereof through until the earlier of (x) the date that is 15 business days before the deadline for the submission of stockholder nominations for the Company’s 2017 Annual Meeting of Stockholders or (y) sixty (60) days prior to the Company’s 2017 Annual Meeting of Stockholders pursuant to the By-Laws (the “Standstill Period”), the Group will abide by the standstill provisions set forth in Section 5. (b) During the Standstill Period, the Group agrees to appear in person or by proxy and vote all shares of Class A common stock of the Company (the “Common Stock”) beneficially owned or controlled by any of the members therein: (i) in favor of the slate of nominees for director submitted to stockholders by the Board for election (so long as each of Rhine and O’Brien are included therein); (ii) to ratify the appointment of the Company’s independent registered public accounting firm; (iii) in accordance with the Board’s recommendation with respect to the Company’s “say-on-pay” proposal; and (iv) to approve or delegate authority in connection with any reverse stock split recommended by the Board. (c) Notwithstanding any implication to the contrary contained in this Agreement, the Group may elect at any time after the date hereof to terminate the Group Agreement and otherwise discontinue acting as a “group” for purposes of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). (d) Within two (2) business days of the date hereof, surrender the shares of Common Stock constituting Excess Securities, as defined in Section 4.4.3 of the Company’s Fourth Amended and Restated Certificate of Incorporation, as amended to date (the “Charter”), for disposition and distribution of the proceeds, in accordance with Section 4.4.3 of the Charter, as previously demanded by the Company by letter dated June 23, 2015, and otherwise henceforth strictly observe and comply with the provisions of Article Fourth of the Charter. The Company shall instruct the Agent (as defined in the Charter) to use its reasonable efforts to mitigate or eliminate loss to Chez on the sale of the Excess Securities; provided, however, that the Agent shall be under no obligation to take any action that could potentially impair the Company’s ability to take the position that Chez was not the owner of the Excess Securities for the purposes of Section 382 of the Internal Revenue Code of 1986, as amended.