definiens: asdefined by Rule 5605(a)(2 ) of the Nasdaq Marketplace Rules and eligible to serve on the Company ’s audit committee underthe Exchange Act and Nasdaq rules and, at least one of whom shall be an as defined inItem 407(d)(5 ) of Regulation S - K and the instructions thereto ( the ) ; provided, however, that if anyContinuing Director is unable to serve due to death, disability or resignation, the Company shall take all necessary action(including creating a committee of the Company Board ) so that the remaining Continuing Director or Continuing Directorsshall be entitled to elect or designate another Person that satisfies the foregoing independence requirements to fill suchvacancy, and such Person shall be deemed to be a Continuing Director for purposes of this Agreement . After Parent’sdesignees are elected or designated to, and constitute a majority of, the Company Board pursuant to Section 1.3(a ), and priorto the Effective Time, in addition to any approvals of the Company Board or the stockholders of the Company as may berequired by the Company Certificate, the Company Bylaws or applicable Law, subject to the terms hereof, the affirmative voteof a majority of the Continuing Directors shall be required ( i ) for the Company to terminate this Agreement or amend thisAgreement, ( ii ) for the Company to exercise or waive any of the Company ’s rights, benefits or remedies under this Agreement,(iii ) except as otherwise contemplated by this Agreement, to amend the Company Certificate or the Company Bylaws or ( iv ) totake any other action of the Company Board under or in connection with this Agreement, in each case, if such termination, amendment, exercise, waiver or other action would reasonably be expected to adversely affect in any material respect theholders of Shares ( other than Parent or the Purchaser ) ; provided, however, that if there shall be no Continuing Directors as aresult of such Persons ’ deaths, disabilities or resignations, then such actions may be effected by majority vote of the entireCompany Board