definiens: as defined by Rule 5605(a)(2 ) of the NASDAQ Marketplace Rules andeligible to serve on the Company ’s audit committee under the Exchange Act and NASDAQ Marketplace Rules, and atleast one of whom shall be an as defined in Items 407(d)(5)(ii ) and ( iii ) of RegulationS - K ( the ) ; provided, however, that if any Continuing Director is unable to serve due to death, disability or resignation, the Company shall take all necessary action ( including creating a committee of the Board ofDirectors of the Company ) so that the Continuing Director(s ) shall be entitled to elect or designate another Person ( orPersons ) to fill such vacancy, and such Person ( or Persons ) shall be deemed to be a Continuing Director for purposesof this Agreement . If no Continuing Director then remains, the other directors shall designate three ( 3 ) Persons whoare not officers, directors or employees of Parent, Purchaser, or any of their Affiliates, and who do not otherwise haveany material financial or other material interest in or material relationship with Parent, Purchaser or any of theirAffiliates, to fill such vacancies and such Persons shall be deemed Continuing Directors for all purposes of thisAgreement . Notwithstanding anything in this Agreement to the contrary, if Purchaser ’s designees constitute a majorityof the Board of Directors of the Company after the Offer Acceptance Time and prior to the Effective Time, then theaffirmative vote of a majority of the Continuing Directors shall ( in addition to the approval rights of the Board ofDirectors of the Company or the stockholders of the Company as may be required by the Company CharterDocuments or applicable Legal Requirements ) be required ( i ) for the Company to amend or terminate this Agreement,(ii ) to exercise or waive any of the Company ’s rights, benefits or remedies hereunder, if such action would adverselyaffect, or would reasonably be expected to adversely affect, the holders of Shares ( other than Parent or 8Purchaser ), ( iii ) to amend the Company Charter Documents if such action would adversely affect the holders ofShares ( other than Parent or Purchaser ), or ( iv ) to take any other action of the Board of Directors of the Companyunder or in connection with this Agreement if such action would materially and adversely affect, or would reasonablybe expected to materially and adversely affect, the holders of Shares ( other than Parent or Purchaser ) . TheContinuing Directors shall have, and Parent shall cause the Continuing Directors to have, the authority to retain suchcounsel ( which may include counsel to the Company or the Board of Directors of the Company as of the date of thisAgreement ) in reasonable circumstances and other advisors at the expense of the Company as determined by theContinuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of thisAgreement