definiens: as defined by Rule 4200(a)(15 ) of the Nasdaq Marketplace Rules and eligible to serve onthe Company ’s audit committee under the Exchange Act and Nasdaq rules and, at least one of whom shall be an as defined in Item 401(h ) of Regulation S - K and the instructions thereto ( the ) ; provided, however, that any director designated or nominated to the Company Board pursuant to the CompanyStockholder Agreement shall not be eligible to serve as a Continuing Director ; and provided, further that if any ContinuingDirector is unable to serve due to death, disability or resignation, the Company shall take all necessary action ( includingwithout limitation creating a committee of the Company Board ) so that the remaining Continuing Director shall be entitled toelect or designate another Person that satisfies the foregoing independence requirements to fill such vacancy, and such Personshall be deemed to be a Continuing Director for purposes of this Agreement . After Parent ’s designees are elected or designatedto, and constitute a majority of, the Company Board pursuant to Section 1.3(a ), and prior to the Effective Time, subject to theterms hereof any ( i ) amendment or modification of this Agreement, ( ii ) termination of this Agreement by the Company,(iii ) extension of time for performance of any of the obligations of the Parent or the Purchaser hereunder, ( iv ) waiver of anycondition to the Company ’s obligation hereunder, ( v ) exercise or waiver of the Company ’s rights or remedies hereunder,(vi ) amendment to the Company ’s certificate of incorporation or bylaws, ( vii ) authorization of any agreement between theCompany and any of its Subsidiaries, on the one hand, and the Parent, the Purchaser or any of their Affiliates on the otherhand, or ( viii ) taking of any other action by the Company in connection with this Agreement, or the transactionscontemplated hereby required to be taken by the Company Board may be effected only if there are in office one or moreContinuing Directors and such action is approved by a majority of the Continuing Directors then in office ; provided, however, that the Company shall designate, prior to the Acceptance Time, two alternate Continuing Directors that the Board shallappoint in the event of the death, disability or resignation of the Continuing Directors, each of whom shall, following suchappointment to the Company Board, be deemed to be a Continuing Director for purposes of this Agreement . The ContinuingDirectors shall have, and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel ( whichmay include current counsel to the Company ) 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