The Company hereby represents and warrants to the MHR Entities that, contingent upon the execution and delivery of this Agreement by the MHR Entities, the Board has taken all action necessary to render inapplicable the restrictions on “business combinations” set forth in DGCL 203 solely in connection with the MHR Entities and their respective affiliates and associates becoming, whether in a single transaction or multiple transactions from time to time until the end of the Standstill Period, the owner of up to an aggregate of 19.99% of the voting power of the then issued and outstanding shares of Voting Stock of the Company (the “Waiver”). However, in the event that the MHR Entities and their respective affiliates and associates become the owner of an aggregate of 20% or more of the voting power of the then issued and outstanding shares of Voting Stock of the Company during the Standstill Period, then from and after that date (the “Excess Date”), notwithstanding the Waiver, DGCL 203 shall apply as described in Section 2.b. hereof as if the MHR Entities owned 15% or more of the voting power of the then issued and outstanding shares of Voting Stock of the Company commencing on the Excess Date and there were no Waiver in effect from and after the Excess Date. Notwithstanding the foregoing, any transactions or other events, if any, that occurred during the period when the Waiver was in effect shall not be deemed to have violated or triggered the applicability of DGCL 203 prior to the Excess Date.

Each of the MHR Entities agree that if at any time during the Standstill Period any MHR Entity or any of its affiliates and associates becomes the owner of shares of voting stock of the Company such that the MHR Entities would, together with their affiliates and associates, in the aggregate own 20% or more of the voting power of the issued and outstanding shares of voting stock of the Company under circumstances in which the restrictions on “business combinations” would, but for the Waiver, be applicable to the Company and the MHR Entities (any event causing the MHR Entities and their affiliates and associates to own in the aggregate 20% or more of the voting power of the then issued and outstanding shares of voting stock of the Company, an “Additional Acquisition”), then, notwithstanding the Waiver referred to in Section 1 of this Agreement, from and after the Excess Date # the restrictions under DGCL 203 applicable to a “business combination” with an “interested stockholder” shall apply as a matter of contract pursuant to this Agreement (except as modified herein) to the MHR Entities and their respective affiliates and associates as if such Waiver had not been granted and as if the Additional Acquisition had caused each MHR Entity and its affiliates and associates to become an “interested stockholder” for purposes of DGCL 203 (except that, for all purposes of this Agreement, references to “15%” in DGCL 203 shall be deemed to be replaced with “20%”); and # the MHR Entities and their affiliates and associates will not engage in any “business combination” with the Company for a period of 3 years following the Excess Date, unless: