TERM EXPIRING AT THE 2019 ANNUAL MEETING OF
SHAREHOLDERS.
THE BOARD HAS ALSO TAKEN ALL ACTION NECESSARY TO APPOINT EDWARD
R. HIRSHFIELD TO SERVE ON THE COMPENSATION COMMITTEE OF THE BOARD AND MATTHEW E.
LIPMAN TO SERVE ON THE AUDIT COMMITTEE AND GOVERNANCE AND NOMINATING COMMITTEE
OF THE BOARD, EFFECTIVE CONCURRENTLY WITH THE CLOSING.
NOTWITHSTANDING ANYTHING
IN THIS SECTION 3(MM) OR THE CERTIFICATE OF INCORPORATION TO THE CONTRARY, THE
TERM OF ANY DIRECTOR DESIGNEE, THE APPOINTMENT OF ANY DIRECTOR DESIGNEE AS
CONTEMPLATED BY THIS AGREEMENT AND THE COMPANY'S AND BOARD'S OBLIGATIONS WITH
REGARD TO THE PROMOTION OF THE RE-ELECTION OF ANY DIRECTOR DESIGNEE IS SUBJECT
TO THE LIMITATIONS AND QUALIFICATIONS SET FORTH IN SECTION 4(L).
ALL DIRECTOR
DESIGNEES SHALL, NOTWITHSTANDING ANY APPOINTMENT TO A PARTICULAR CLASS OF
DIRECTORS WITH A SPECIFIED TERM AND ANY TERMS OR PROVISIONS OF THE CERTIFICATE
OF INCORPORATION, STAND FOR ELECTION TO THE BOARD BY THE SHAREHOLDERS OF THE
COMPANY AT THE 2017 ANNUAL MEETING OF SHAREHOLDERS AS REQUIRED BY SECTION 705(C)
OF THE NEW YORK BUSINESS CORPORATION LAW.
4.
COVENANTS.
(A)
BEST EFFORTS. EACH PARTY SHALL USE ITS BEST EFFORTS TIMELY TO
SATISFY EACH OF THE COVENANTS AND THE CONDITIONS TO BE SATISFIED BY IT AS
PROVIDED IN SECTIONS 6 AND 7.
(B)
FORM D AND BLUE SKY. THE COMPANY AGREES TO FILE A FORM D WITH
RESPECT TO THE COMMON SHARES AS REQUIRED UNDER REGULATION D AND TO PROVIDE A
COPY THEREOF TO THE BUYER PROMPTLY AFTER SUCH FILING. THE COMPANY SHALL, ON OR
BEFORE THE CLOSING DATE, TAKE SUCH ACTION AS THE COMPANY SHALL REASONABLY
DETERMINE IS NECESSARY IN ORDER TO OBTAIN AN EXEMPTION FOR OR TO QUALIFY THE
COMMON SHARES FOR SALE TO THE BUYER AT THE CLOSING PURSUANT TO THIS AGREEMENT
UNDER APPLICABLE SECURITIES OR "BLUE SKY" LAWS OF THE STATE OF NEW YORK (OR TO
OBTAIN AN EXEMPTION FROM SUCH QUALIFICATION), AND SHALL PROVIDE EVIDENCE OF ANY
SUCH ACTION SO TAKEN TO THE BUYER ON OR PRIOR TO THE CLOSING DATE.
19
(C)
REPORTING STATUS. UNTIL THE EARLIER OF (I) THE DATE ON WHICH
THE HOLDERS (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) "BENEFICIALLY OWN"
(AS SET FORTH IN RULE 13D-3 AND RULE 13D-5(B)(L) OF THE 1934 ACT) AN AGGREGATE
OF TEN PERCENT (10%) OR LESS OF THE SHARES OF COMMON STOCK THEN OUTSTANDING (THE
"REPORTING PERIOD"), (II) THE TERMINATION OF THE REGISTRATION RIGHTS AGREEMENT,
(III) THE DATE WHEN THE HOLDERS MAY SELL ALL OF THE COMMON SHARES UNDER RULE 144
WITHOUT VOLUME LIMITATIONS AND/OR WITHOUT THE REQUIREMENT FOR CURRENT PUBLIC
INFORMATION, AND (IV) THE DATE THE BUYER OR ITS AFFILIATES WAIVE THIS SECTION
4(C), THE COMPANY (A) SHALL TIMELY FILE ALL REPORTS REQUIRED TO BE FILED WITH
THE SEC ON FORM 8-K, FORM 10-K AND FORM 10-Q, PROVIDED, THAT ANY FILING MADE
PURSUANT TO AN EXTENSION IN COMPLIANCE WITH RULE 12B-25 PROMULGATED UNDER THE
EXCHANGE ACT SHALL NOT BE CONSIDERED UNTIMELY, (B) SHALL NOT VOLUNTARILY
TERMINATE ITS STATUS AS AN ISSUER REQUIRED TO FILE REPORTS UNDER THE 1934