The [[MHR Entities:Organization]] shall be entitled to designate the Observer to serve as an observer of the Committee. Following the execution of this Agreement by each of the parties hereto, the Company shall cause the Initial Observer to appointed as an observer of the Committee.

Use and Disclosure of Proprietary Information. Observer shall hold in confidence and shall not disclose to any person, other than the Company’s directors, officers, employees, agents or representatives, any Proprietary Information. Observer shall not use such Proprietary Information other than for the purpose of monitoring his ownership in the Company and providing certain strategic advice to the Company’s Board of Directors, and Observer shall not use or exploit such Proprietary Information for his own benefit or the benefit of another without the prior written consent of the Company. Observer shall adhere to procedures which are reasonably calculated to protect the confidentiality of Proprietary Information and Observer shall be responsible to the Company for any disclosure or misuse of Proprietary Information which results from a failure to comply with this provision. Observer will promptly report to the Company any actual or suspected violation of the terms of this Agreement and will take all reasonable further steps requested by the Company to prevent, control or remedy any such violation.

The Observer and each of the [[MHR Entities:Organization]] acknowledge and agree that the rights of the Observer, in his or her capacity as such, shall be limited to the rights expressly provided herein and that the Observer shall not have any rights as a director or member of any committee of the Board (including the Committee). For the avoidance of doubt, the Observer and each of the [[MHR Entities:Organization]] acknowledge and agree that the Observer shall # not be counted for purposes of determining whether a quorum is present at any meeting of the Committee, # not have the right to vote on any matter brought before the Committee or to participate in any action by unanimous written consent in lieu of a meeting of the Committee (and no vote or consent of the Observer shall be required for purposes of determining whether any matter has been approved by the Committee), and # not be entitled to any other rights or powers of directors under the certificate of incorporation or bylaws of the Company, the General Corporation Law of the State of Delaware, applicable law or any other agreement to which the Company is a party. The Observer acknowledges and agrees that he or she shall not be entitled to compensation for his or her service as an observer of the Committee.

Transaction Documents. The Purchaser shall have executed and delivered to the Parent and the Company the A&R LPA (as a new limited partner thereunder), the Warrant Agreement, the Registration Rights Agreement, and the Board Observer Agreement.

becomes known to Observer through disclosure by sources other than the Company having the legal right to Observer’s knowledge, to disclose such Proprietary Information;

Transaction Documents. The Parent and the Company shall have executed and delivered to the Purchaser each of the Certificate of Designations, the Warrant Agreement, the Registration Rights Agreement, and the Board Observer Agreement, and such agreements shall each be in full force and effect.

“Board” or “Board of Directors” means the Board of Directors of the Plan Sponsor.

Board Discretion. Except as otherwise provided by the Plan, each Award may be made alone or in addition or in relation to any other Award. The terms of each Award need not be identical, and the Board need not treat Participants uniformly.

Board Report. The Arranger shall have been informed of the conclusions of the report of the causes of the restatement of the Borrower’s earnings commissioned by the Borrower’s Board of Directors, and the Arranger shall be satisfied, in its sole discretion, with the conclusions of such report.

The Company shall reimburse the directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors. At the request of a majority of the Preferred Directors (as defined in the Company’s Certificate of Incorporation), the Company shall cause to be established, as soon as practicable after such request, and will maintain an audit and/or compensation committee, as applicable, each of which shall consist solely of non-management directors. Each non-employee director shall be entitled in such person’s discretion to be a member of any Board committee, except with respect to any committee of the Board of Directors formed for the purpose of acting as the administrator of the Company’s 2010 Special Stock Incentive Plan, and each committee of the Board of Directors, if any, shall include at least one of the Preferred Directors.