AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT

EXHIBIT 10.2

EXECUTION COPY

AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT

by and among

THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC.,

STOCKHOLDERS,

and

YUCAIPA AMERICAN ALLIANCE FUND II, LLC, AS STOCKHOLDER
REPRESENTATIVE

Dated as of August 4, 2009

Table of Contents

     AMENDED AND RESTATED YUCAIPA STOCKHOLDER AGREEMENT dated as of August 4, 2009 (this “ Agreement ”), among THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., a Maryland corporation (the “ Company ”), YUCAIPA CORPORATE INITIATIVES FUND I, LP, YUCAIPA AMERICAN ALLIANCE FUND I, LP, YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND I, LP, YUCAIPA AMERICAN ALLIANCE FUND II, LP, and YUCAIPA AMERICAN ALLIANCE (PARALLEL) FUND II, LP (collectively, “ Stockholder ”) and YUCAIPA AMERICAN ALLIANCE FUND II, LLC, as the representative of Stockholder (the “ Stockholder Representative ”) (which is a party to this Agreement solely with respect to Section 2.06 hereof).

          WHEREAS, the Company, Sand Merger Corp., a Delaware corporation and a wholly owned Subsidiary of the Company, and Pathmark Stores, Inc., a Delaware corporation (“ Pathmark ”), entered into a Merger Agreement, dated as of March 4, 2007, pursuant to which the Company acquired Pathmark (the “ Merger ”);

          WHEREAS, pursuant to the Merger, Yucaipa Corporate Initiatives Fund I, LP, Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP (the “ Existing Stockholders ”) were issued shares of Company Common Stock and granted Series B Warrants (capitalized terms used in this Agreement shall have the meanings given to such terms in Article I) exercisable for shares of Company Common Stock;

          WHEREAS, the Series A Warrants issued to the Existing Stockholders by the Company as part of the Merger were exercised on May 7, 2008 and are no longer outstanding;

          WHEREAS, in connection with the Merger, the Existing Stockholders entered into that certain Yucaipa Stockholder Agreement dated as of March 4, 2007 (the “ Existing Agreement ”), to establish certain terms and conditions concerning the ownership, acquisition and disposition of Equity Securities of the Company and certain other matters;

          WHEREAS, the Company and Stockholder have entered into an investment agreement dated as of July 23, 2009 (the “ Investment Agreement ”), pursuant to which the Yucaipa American Alliance Fund II, LP and Yucaipa American Alliance (Parallel) Fund II, LP (the “ New Stockholders ”) are purchasing from the Company, and the Company is issuing and selling to the New Stockholders (the “ Transaction ”), subject to the terms and conditions set forth therein, an aggregate of 115,000 shares of the Convertible Preferred Stock (together with any shares of the Convertible Preferred Stock issued to the New Stockholders pursuant to the Convertible Preferred Stock PIK Dividend Provision, the “ Stockholder Convertible Preferred Stock ”);

          WHEREAS, the Company and Erivan Karl Haub, Christian Wilhelm Erich Haub, Karl-Erivan Warder Haub and Georg Rudolf Otto Haub (collectively, the “ Tengelmann Partners ”) entered into an investment agreement dated as of July 23, 2009, pursuant to which the Tengelmann Partners are purchasing from the Company, and the Company is issuing and selling to the Tengelmann Partners, subject to the terms and conditions set forth therein, an aggregate of 60,000 shares of Convertible Preferred Stock (the “ Tengelmann Shares ”), and immediately following such purchase, the Tengelmann Partners shall contribute the Tengelmann Shares to Tengelmann; and

          WHEREAS, it is a condition to the closing under the Investment Agreement that the parties hereto amend and restate in its entirety the Existing Agreement as provided herein.

          NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I

Definitions

          SECTION 1.01. Definitions. (a) As used in this Agreement, the following terms will have the following meanings:

          “ 13D Group ” means any group of Persons formed for the purpose of acquiring, holding, voting or disposing of Voting Stock of the Company that would be required under Section 13(d) of the Exchange Act (as in effect on, and based on legal interpretations thereof existing on, the date hereof) to file a statement on Schedule 13D with the SEC as a “person” within the meaning of Section 13(d)(3) of the Exchange Act if such group beneficially owned Voting Stock of the Company representing more than 5% of any class of Voting Stock of the Company (whether or not registered pursuant to Section 12 of the Exchange Act) then outstanding.

          “ 2000 Warrants ” means the warrants issued by Pathmark pursuant to the Warrant Agreement dated as of September 19, 2000, between Pathmark and ChaseMellon Shareholder Services, LLC.

          “ 2011 Convertible Notes ” means the Company’s 5.125% Convertible Senior Notes due June 15, 2011.

          “ 2012 Convertible Notes ” means the Company’s 6.75% Convertible Senior Notes due December 15, 2012.

          “ ABL Credit Agreement ” means the Company’s five-year amended and restated asset-based senior secured revolving credit agreement, dated as of December 27, 2007, among the Company, the other borrowers party thereto and the lenders party thereto, Bank of America, N.A., as administrative agent and collateral agent, and Banc of

America Securities LLC, as lead arranger (as amended thereafter in accordance with the terms hereof, if applicable).

          “ Acquisition ” means (i) any direct or indirect acquisition or purchase, in a single transaction or a series of transactions, of (A) 50% or more (based on the Fair Market Value thereof) of the assets (including capital stock of the Subsidiaries of the Company) of the Company and its Subsidiaries, taken as a whole, or (B) 50% or more of the outstanding shares of Company Common Stock by a Third Party or 13D Group except a transaction pursuant to which the stockholders of the Company prior to such transaction would continue to own, directly or indirectly, 50% or more of the Voting Power of the Voting Stock of any direct or indirect parent of the Company; (ii) any tender offer or exchange offer that, if consummated, would result in any Third Party or 13D Group owning, directly or indirectly, 50% or more of the outstanding shares of Company Common Stock; or (iii) any merger, consolidation, Business Combination, recapitalization, liquidation, dissolution, binding share exchange or similar transaction involving the Company or its stockholders pursuant to which any Third Party or 13D Group (or the stockholders or other equity owners of any Third Party or members of a 13D Group) would own, directly or indirectly, 50% or more of any class of Equity Securities (other than debt securities) of the Company or of the surviving entity in a merger or the resulting direct or indirect parent of the Company or such surviving entity.

          “ Acquisition Proposal ” means any inquiry, proposal or offer relating to an Acquisition.

          An “ Affiliate ” of any Person means another Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such first Person. The Company and its Subsidiaries shall not be deemed Affiliates of Stockholder for any reason under this Agreement.

          “ Amended and Restated Tengelmann Stockholder Agreement ” means the Amended and Restated Tengelmann Stockholder Agreement, dated as of the date hereof, between the Company and Tengelmann.

          “ Audit and Finance Committee ” means the Audit and Finance Committee of the Board of Directors or any successor committee thereto.

          “ Authorized Capital Stock Charter Amendment ” means an amendment to the Charter increasing the number of authorized shares of Company Common Stock by up to 100,000,000 shares.

          “ Automatic Shelf Registration Statement ” means an “automatic shelf registration statement” as defined in Rule 405 promulgated under the Securities Act.

          “ beneficial owner ” and words of similar import have the meaning assigned to such terms in Rule 13d-3 promulgated under the Exchange Act as in effect on the date of this Agreement, but without reference to whether or not an Equity Security is exercisable or convertible for Voting Stock in less than 60 days. The term “beneficially own” has a meaning correlative to the foregoing.

          “ Board ” or “ Board of Directors ” means the board of directors of the Company.

          “ Business Combination ” with respect to any Person means any of the following: (i) the sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation) of all or substantially all of the assets of such Person and its Subsidiaries, taken as a whole, to any other Person or (ii) any transaction (including any merger or consolidation) the consummation of which would result in any other Person (or, in the case of a merger or consolidation, the shareholders of such other Person) becoming, directly or indirectly, the beneficial owner of more than 50% of the Voting Stock or Equity Securities (other than debt securities) of such Person (measured in the case of Voting Stock by Voting Power rather than number of shares).

          “ Business Day ” means any day on which banks are not required or authorized by law to close in New York, New York.

          “ By-Laws ” means the By-Laws of the Company, as in effect from time to time.

          “ Charter ” means the Articles of Amendment and Restatement of the Articles of Incorporation of the Company, as in effect from time to time.

          “ Charter Amendment Stockholder Approval ” means the approval of the Authorized Capital Stock Charter Amendment, by the affirmative vote of holders entitled to cast two-thirds of the votes entitled to be cast on the matter.

          “ Closing ” means the closing of the Transaction.

          “ Closing Date ” means the date of the Closing.

          “ Company Common Stock ” means the common stock of the Company, par value $1.00 per share, and any other common stock of the Company that may be issued from time to time.

          “ Conversion Date ” means any date on which shares of Convertible Preferred Stock are converted into shares of Company Common Stock subject to the terms and conditions of the Convertible Preferred Articles Supplementary.

          “ Conversion Stockholder Approval ” means the approval, as required pursuant to NYSE Rule 312, of (x) the shares of Convertible Preferred Stock when voting together with the Common Stock becoming entitled to cast the full number of votes on an as-converted basis and (y) the issuance of the full amount of Company Common Stock upon the exercise of conversion rights of the Convertible Preferred Stock, in each case, by the affirmative vote of holders of a majority of the votes present and entitled to vote at the stockholders’ meeting duly called, noticed and convened for such purpose, at which the total votes cast represent over 50% in interest of all Voting Stock entitled to vote on such proposal.

          “ Convertible Notes ” means the 2011 Convertible Notes and the 2012 Convertible Notes.

          “ Convertible Preferred Articles Supplementary ” means the articles supplementary filed with the Maryland State Department of Assessments and Taxation on August 3, 2009, which govern the designation, voting powers, preferences, conversions and other rights, qualifications, limitations as to dividends, terms and conditions of redemption and restrictions of the Convertible Preferred Stock.

          “ Convertible Preferred Stock ” means the shares of the Company’s 8.00% Convertible Preferred Stock redeemable August 1, 2016, designated in four separate series as “8% Cumulative Convertible Preferred Stock, Series A-T”, “8% Cumulative Convertible Preferred Stock, Series A-Y”, “8% Cumulative Convertible Preferred Stock, Series B-T” and “8% Cumulative Convertible Preferred Stock, Series B-Y”.

          “ Convertible Preferred Stock PIK Dividend Provision ” means the Company’s ability to issue Convertible Preferred Stock as dividends pursuant to the Convertible Preferred Articles Supplementary.

          “ Convertible Underlying Securities ” means the shares of Company Common Stock issuable upon the conversion of any Convertible Preferred Stock.

          “ Director ” means a member of the Board of Directors.

          “ Discriminatory Transaction ” means any corporate action (other than those taken pursuant to the express terms of this Agreement) that would (i) impose material limitations on the legal rights of Stockholder as a holder of a class of Voting Stock of the Company (including any action that would impose material restrictions without lawful exemption on Stockholder that are based upon the size of security holding, the business in which a security holder is engaged or other considerations applicable to Stockholder and not to holders of the same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Stockholder), which limitations are disproportionately ( i.e. , other than in a proportionate manner consistent with Stockholder’s pro rata ownership of such class of Voting Stock) borne by Stockholder as opposed to other holders of such class of Voting Stock, or (ii) deny any material benefit to Stockholder proportionately as a holder of any class of Voting Stock of the Company that is made available to other holders of that same class of Voting Stock of the Company generally, but excluding any such action which is expressly required by applicable Law without any provision to exclude Stockholder.

          “ Encumbrance ” means any security interest, pledge, mortgage, lien, or other material encumbrance, except for any restrictions arising under any applicable securities Laws.

          “ Equity Security ” means (i) any common stock or other Voting Stock, (ii) any securities convertible into or exchangeable for common stock or other Voting

Stock, including the Series B Warrants or (iii) any options, rights or warrants (or any similar securities) to acquire common stock or other Voting Stock.

          “ Exchange Act ” means the Securities Exchange Act of 1934 and the rules and regulations promulgated thereunder.

          “ Executive Committee ” means the Executive Committee of the Board of Directors or any successor committee thereto.

          “ Exempt Transfer ” means (i) a Transfer to a Permitted Transferee, (ii) any exercise of tag-along rights pursuant to Section 6.05, (iii) any Transfer of Registrable Securities pursuant to a Registration Statement pursuant to Article III, (iv) any Acquisition, Business Combination or similar transaction approved by the Board of Directors, or (v) any Transfer of Equity Securities that were held by Stockholder prior to the date hereof.

          “ Existing Registrable Securities ” means all shares of Company Common Stock beneficially owned by Stockholder immediately prior to the Closing or purchased by Stockholder upon exercise of the Series B Warrants and beneficially owned at any time by Stockholder.

          “ Fair Market Value ” means (i) with respect to cash or cash equivalents, the amount of such cash or cash equivalents, (ii) with respect to any security listed on a national securities exchange or otherwise traded on any national securities exchange or other trading system, the average of the closing prices of such security as reported on such exchange or trading system for each of the five Trading Days prior to the date of determination and (iii) with respect to property other than cash or securities of the type described in clauses (i) and (ii), the cash price at which a willing seller would sell and a willing buyer would buy such property in an arm’s-length negotiated transaction without time constraints as determined in good faith by the Board.

          “ GAAP ” means U.S. generally accepted accounting principles, as in effect at the time such term is relevant.

          “ General Partner ” means, with respect to a specified Person, the general partner or managing member, as applicable, of such Person.

          “ Governance Committee ” means the Governance Committee of the Board of Directors or any successor committee thereto.

          “ Governmental Entity ” means any transnational, Federal, state, local or foreign government, or any court of competent jurisdiction, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, or any national securities exchange or national quotation system on which securities issued by the Company or any of its Subsidiaries are listed or quoted.

          “ Grocery Retailer ” means (i) any Person (including such Person’s direct and indirect Subsidiaries, taken as a whole) that received at least 25% of its consolidated

revenues for the most recently completed fiscal year of such Person from retailing grocery products, (ii) any Person that owns, directly or indirectly, at least 20% of the equity or Voting Power of any Person identified in the preceding clause (i), or (iii) any Subsidiary of any Person identified in the preceding clause (ii).

          “ Human Resources and Compensation Committee ” means the Human Resources and Compensation Committee of the Board of Directors or any successor committee thereto.

          “ Indebtedness ” means, with respect to any Person, without duplication: (i) (A) indebtedness for borrowed money, (B) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (C) all obligations of such Person under interest rate or currency hedging transactions (valued at the termination value thereof), (D) all letters of credit issued for the account of such Person and (E) obligations of such Person to pay rent or other amounts under any lease of real property or personal property, which obligations are required to be classified as capital leases in accordance with GAAP; (ii) indebtedness for borrowed money of any other Person guaranteed, directly or indirectly, in any manner by such Person; and (iii) indebtedness of the type described in clause (i) above secured by any Encumbrance upon property owned by such Person, even though such Person has not in any manner become liable for the payment of such indebtedness; provided , however , that Indebtedness shall not be deemed to include (i) any accounts payable or trade payables incurred in the ordinary course of business of such Person, or (ii) any intercompany indebtedness between any Person and any wholly owned Subsidiary of such Person or between any wholly owned Subsidiaries of such Person.

          “ Independent Director ” means a Director of the Company who qualifies as an “independent director” of the Company under (a) NYSE Rule 303A.02 (or any successor provision thereto) or (b) if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted.

          “ Issuer FWP ” has the meaning assigned to “issuer free writing prospectus” in Rule 433 under the Securities Act.

          “ Labor Term ” means the period from the date hereof until the earlier of (i) the third anniversary of the date hereof and (ii) the first date on which the Stockholder Percentage Interest is less than 10%; provided , however , that in each case, the Term shall be extended until the latest maturity, expiration or other termination date of any written contract in which the Labor Consultant was substantially involved in the negotiation related thereto during the course of the Term, without giving effect to the proviso herein.

          “ Law ” means any law, treaty, statute, ordinance, code, rule, regulation, judgment, decree, order, writ, award, injunction, authorization or determination enacted, entered, promulgated, enforced or issued by any Governmental Entity.

          “ Lenders ” means those lenders party to the ABL Credit Agreement.

          “ Maturity Date ” means August 1, 2016.

          “ MGCL ” means the Maryland General Corporation Law, codified in Md. Code Ann., Corps. & Ass’ns, Titles 1-3, as may be in effect from time to time.

          “ NYSE ” means the New York Stock Exchange.

          “ Other Directors ” means any Director who is not a Stockholder Director.

          “ Other Investors ” means any holder of Convertible Preferred Stock with which the Company has or enters into a stockholder agreement (other than Stockholder and its Affiliates).

          “ Partner ” means any partner of such Person.

          “ Permitted Transferee ” means, with respect to a specified Person, any controlled Affiliate of such Person or any Partner of such Person and with respect to each Stockholder, any controlled Affiliate of either Ronald W. Burkle or The Yucaipa Companies, LLC.

          “ Person ” means any individual, firm, corporation, partnership, limited partnership, company, limited liability company, trust, joint venture, association, Governmental Entity, unincorporated organization, syndicate or other entity, foreign or domestic.

          “ Piggyback Percentage ” of Tengelmann or Stockholder, as applicable, means the result of dividing (i) the product of the number of shares requested to be registered by such Person (including, in the case of Stockholder, shares issuable under the Series B Warrants) and the number of shares beneficially owned by such Person as of the date of any notice given pursuant to Section 3.02 or, if not practicably obtainable as of such date, as of the most recent date practicably obtainable (excluding, in the case of Stockholder, shares issuable under the Series B Warrants to the extent not requested to be registered) (in the case of Tengelmann, the “ Tengelmann Amount ” and, in the case of Stockholder, the “ Stockholder Amount ”), by (ii) the sum of the Tengelmann Amount and the Stockholder Amount.

          “ Public Director ” means a Director who is not a Stockholder Director or a Tengelmann Director.

          “ Public Equity Holders ” means holders of Equity Securities of the Company, other than (i) Tengelmann and its Affiliates and any Person included in any 13D Group with Tengelmann or any of its Affiliates and (ii) Yucaipa and its Affiliates and any Person included in any 13D Group with Yucaipa or any of its Affiliates.

          “ Registrable Securities ” means (i) all shares of Company Common Stock beneficially owned by Stockholder on the date hereof or purchased by Stockholder upon exercise of the Series B Warrants and beneficially owned at any time by Stockholder, (ii) any Convertible Underlying Securities beneficially owned by Stockholder and (iii) any securities issued or issuable with respect to any such shares of Company Common Stock by way of a stock dividend or other similar distribution or stock split, or in connection

with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise; provided that such securities shall cease to be Registrable Securities when (A) Stockholder Transfers such securities to any Person other than an Affiliate of Stockholder or a Registration Rights Transferee or (B) Stockholder or Registration Rights Transferee, as applicable, has beneficial ownership (including Company Common Stock issuable upon exercise of the Series B Warrants) of less than 1% of the outstanding Company Common Stock.

          “ Registration Statement ” means any registration statement of the Company that covers Registrable Securities pursuant to the provisions of this Agreement, including the prospectus, amendments and supplements to such registration statement, including pre- and post-effective amendments, and all exhibits and all material incorporated by reference in such registration statement.

          “ Rule 144 ” means Rule 144 promulgated under the Security Act or any similar rule or regulation hereafter adopted by the SEC as a replacement thereto having substantially the same effect as such Rule.

          “ SEC ” means the U.S. Securities and Exchange Commission.

          “ Securities Act ” means the Securities Act of 1933, and the rules and regulations promulgated thereunder.

          “ Series B Warrants ” means the Series B warrants issued as part of the Merger by the Company to the Existing Stockholders, which entitled the Existing Stockholders to purchase 6,965,858 shares of common stock of the Company at an exercise price of $32.40 per share which will expire on June 9, 2015, as such share amount and exercise price may be adjusted from time to time in accordance with the terms of such warrants in effect on the date hereof.

          “ Standing Committee ” means each of the following committees: the Audit and Finance Committee; the Human Resources and Compensation Committee; the Governance Committee; and the Executive Committee.

          “ Standstill Expiration Date ” means the earliest of (i) the five year anniversary of the date hereof; (ii) such date as the Board of Directors publicly announces its intention to solicit an Acquisition Proposal, or publicly approves, accepts, authorizes or recommends to the Company stockholders the approval of an Acquisition Proposal; (iii) such date as the Company or any Affiliate thereof (other than the parties hereto or any of their Affiliates) has entered into a binding letter of intent, binding agreement in principle or definitive agreement with any party agreeing to an Acquisition Proposal; (iv) such date that the Stockholder Percentage Interest is less than 10%; (v) such date that any Third Party or 13D Group has acquired beneficial ownership of outstanding Equity Securities of the Company (other than debt securities) in an amount that exceeds Tengelmann’s beneficial ownership of Equity Securities (other than debt securities) of the Company; (vi) such date that Tengelmann and its Affiliates beneficially own, in the

aggregate, less than 20% of the Voting Power of Equity Securities of the Company; or (vii) such earlier date that this Agreement is terminated pursuant to Section 8.15.

          “ Stockholder Approvals ” means the Conversion Stockholder Approval and the Charter Amendment Stockholder Approval.

          “ Stockholder Director ” means a Director either (i) elected by Stockholder in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Stockholder and actually elected or appointed pursuant to the provisions of Section 2.01.

          “ Stockholder Percentage Interest ” means, as of any date of determination, the percentage of Voting Power in the Company (determined on the basis of the number of votes entitled to be cast by all outstanding shares of Voting Stock of the Company, as set forth in the most recent SEC filing of the Company prior to such date that contained such information) that is beneficially owned by Stockholder and its controlled Affiliates as of such date (including any Equity Securities owned prior to the date of this Agreement); provided , however , that for purposes of this calculation (x) all determinations shall be made as if the Conversion Stockholder Approval has been obtained and (y) notwithstanding the definition of “beneficial ownership” or Voting Power, all determinations shall be made as if Stockholder beneficially owns any and all Voting Stock or Equity Securities subject to any swap, hedge, forward contract, credit default swap or any other agreement that hedges the economic consequences of ownership of any Voting Stock or Equity Securities.

          “ Subsidiary ” of any Person means another Person (i) in which such first Person’s ownership of Voting Stock, other voting ownership or voting partnership interests is in an amount sufficient to elect at least a majority of its board of directors or other governing body (or, if there are no such voting interests, 50% or more of the equity interests of which are beneficially owned directly or indirectly by such first Person) or (ii) which is required to be consolidated with such Person under GAAP.

          “ Tengelmann ” means Tengelmann Warenhandelsgesellschaft KG, a partnership organized under the laws of the Federal Republic of Germany.

          “ Tengelmann Director ” means a Director either (i) elected by Tengelmann in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary or (ii) designated for nomination by Tengelmann and actually elected or appointed pursuant to Section 2.01 of the Amended and Restated Tengelmann Stockholder Agreement.

          “ Third Party ” means any Person other than the Company, Stockholder, Tengelmann or any of their respective controlled Affiliates.

          “ Trading Day ” means (i) for so long as Company Common Stock is listed or admitted for trading on the NYSE or another national securities exchange, a day on which the NYSE or such other national securities exchange is open for business and trading in Company Common Stock is not suspended or restricted or (ii) if Company Common Stock ceases to be so listed, any day other than a Saturday or Sunday or a day

on which banking institutions in the State of New York are authorized or obligated by Law or executive order to close.

          “ Transfer ” means, with respect to any security, any sale, assignment, transfer or distribution, whether voluntarily or by operation of Law, whether in a single transaction or a series of related transactions and whether to a single Person or a 13D Group. The terms “Transferred”, “Transferring”, “Transferor”, “Transferee” and “Transferable” have meanings correlative to the foregoing.

          “ Underwriter ” means, with respect to any Underwritten Offering, a securities dealer who purchases any Registrable Securities as a principal in connection with a distribution of such Registrable Securities and not as part of such dealer’s market-making activities.

          “ Underwritten Offering ” means a public offering of securities registered under the Securities Act in which an Underwriter, placement agent or other intermediary participates in the distribution of such securities.

          “ Voting Power ” means the ability to vote or to control, directly or indirectly, by proxy or otherwise, the vote of any Voting Stock at the time such determination is made; provided that a Person will not be deemed to have Voting Power as a result of an agreement, arrangement or understanding to vote such Voting Stock if such agreement, arrangement or understanding (i) arises solely from a revocable proxy or consent given in response to a public proxy or consent solicitation made pursuant to the applicable rules and regulations under the Exchange Act and (ii) is not also then reportable by such Person on Schedule 13D under the Exchange Act (or any comparable or successor report). For purposes of determining the percentage of Voting Power of any class or series (or classes or series) beneficially owned by Stockholder, any Voting Stock not outstanding which is issuable pursuant to conversion, exchange or other rights, warrants, options or similar securities will not be deemed to be outstanding for the purpose of computing the Voting Power of any Person.

          “ Voting Stock ” of any Person means securities having the right to vote generally in any election of directors or comparable governing Persons of such Person.

          (b) As used in this Agreement, the terms set forth below will have the meanings assigned in the corresponding Section listed below:

ARTICLE II

Corporate Governance; Information Rights and Stockholder Representative

          SECTION 2.01. Composition of the Board of Directors. The composition of the Board of Directors will be as follows:

          (a) Immediately after the Closing Date, (i) the By-Laws shall be amended to provide that the authorized number of directors comprising the Board of Directors shall be eleven Directors and (ii) Frederic F. Brace and Terry J. Wallock shall be elected to the Board of Directors. As of the date of this Agreement, the Company represents and warrants that the Board of Directors has determined that both Frederic F. Brace and Terry J. Wallock qualify as Independent Directors.

          (b) Immediately after the Closing Date, the Board of Directors shall be composed of eleven Directors, and, subject to any additional requirements provided for in the Charter or the By-Laws, the number of such Directors may not be (i) increased without the consent of Stockholder (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary) and that number of directors that is at least 66.67% of the total number of directorships (including vacancies) or (ii) decreased without the approval of that number of directors that is at least 66.67% of the total number of directorships (including vacancies); provided , however , that any decrease in the number of directorships that has the effect of reducing the number of Directors that Stockholder is entitled to nominate hereunder shall require the consent of Stockholder.

          (c) From and after the Closing Date (without duplication of Stockholder’s rights to elect a Stockholder Director pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary), so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, then the manner of selecting members of the Board of Directors will be as follows:

     (i) Stockholder will have the right to designate for nomination (it being understood that such nomination will include any nomination of any incumbent Stockholder Director for reelection to the Board of Directors) to the Board of Directors (A) two Directors (at least one of whom would qualify as an Independent Director) at any time the Stockholder Percentage Interest is and has

been continuously since the Closing Date, at least 20% or (B) one Director (who would qualify as an Independent Director) at any time the Stockholder Percentage Interest is less than 20% and has been continuously since the Closing Date at least 10% (each such designee, a “ Stockholder Nominee ”). Each Stockholder Nominee will be nominated and recommended for election to the Board of Directors by the Governance Committee and will stand for election at any stockholders’ meeting at which Directors are elected and each subsequent meeting for so long as the conditions specified in clause (A) or (B) above, as applicable, are satisfied and the Governance Committee is notified of each such Stockholder Nominee no later than the date that is 30 days prior to the date the Company’s annual proxy statement is scheduled to be mailed to stockholders with respect to such meeting; provided , however , that if Stockholder fails to give such notice in a timely manner, then Stockholder shall be deemed to have nominated the incumbent Stockholder Directors or Stockholder Directors, as applicable, in a timely manner. In the event that (x) the Stockholder Percentage Interest is at any time less than 20% but clause (B) of the second preceding sentence is satisfied, Stockholder shall not have the right to designate more than one Director, and, at the request of a majority of the Other Directors then in office, shall cause one of the two Stockholder Directors then in office to resign immediately upon such events and (y) the Stockholder Percentage Interest is at any time less than 10%, Stockholder shall not have any right to designate any Directors, and, at the request of a majority of the Other Directors then in office, shall cause any Stockholder Directors then in office to resign immediately upon such event.

     (ii) Subject to Section 2.01(c)(iii), the Company and the Board of Directors, including the Governance Committee, shall cause each Stockholder Nominee to be included in management’s slate of nominees for such stockholders’ meeting at which Directors are elected and shall recommend such Person for election to the Board of Directors.

     (iii) Notwithstanding anything to the contrary in this Section 2.01, neither the Governance Committee, the Company nor the Board of Directors shall be under any obligation to nominate and recommend a Stockholder Nominee to the extent it determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to Stockholder), that such recommendation would reasonably be expected to violate their duties under MGCL § 2-405.1(a) because (A) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Company’s Common Stock is listed or quoted or (B) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted, in which case the Company shall provide Stockholder with a reasonable opportunity (but in any event not less than 30 days) to designate an alternate Stockholder Nominee.

     (iv) Without limiting the generality of Section 2.01(c), if the number of Stockholder Directors is less than the number that the Stockholder has the right (and wishes) to designate pursuant to this Section 2.01, at the request of the Stockholder, the Secretary of the Company shall call a special meeting of the stockholders of the Company for the purpose of removing Public Directors to create such vacancies as are necessary to permit Stockholder to designate the full number of Stockholder Directors that it is entitled (and wishes) to designate pursuant to this Section 2.01. Upon the creation of any vacancy pursuant to the preceding sentence, Stockholder shall designate the Person to fill such vacancy in accordance with this Section 2.01 and, subject to Section 2.01(c)(iii), the Board of Directors shall appoint each Person so designated.

          (d) Until the third anniversary of the date of this Agreement, in any election of Directors at a meeting of the stockholders of the Company, if (x) Stockholder has elected the applicable number of Stockholder Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Company has nominated and recommended the Stockholder Nominees (to the extent required by Section 2.01(c)) that Stockholder wished to nominate (subject to Section 2.01(c)(iii) above), then Stockholder (i) agrees (A) to cause all Voting Stock held by Stockholder to be present at such meeting either in person or by proxy and (B) to vote such Voting Stock beneficially owned by it for all nominees (other than the Stockholder Nominees) included in management’s slate, in a manner identical (on a proportionate basis) to the manner in which the Public Equity Holders vote their shares of Voting Stock in such elections (the “ Stockholder Mirror Vote ”) and (ii) shall be entitled to vote all Voting Stock held by Stockholder for any Stockholder Nominee in its sole discretion. For purposes of allocating the Stockholder Mirror Vote, abstentions and broker non-votes shall be disregarded. As promptly as practicable following the nomination and recommendation of the Stockholder Nominees in accordance with Section 2.01(c) above, Stockholder shall, and shall cause its Affiliates to, provide the Company a proxy (which will be subject to Section 2.01(k)) for purposes of effecting the first sentence of this Section 2.01(d). Notwithstanding the foregoing, this Section 2.01(d) shall not apply with respect to any election of Directors in connection with which any Person (other than (x) Stockholder or any Affiliate of Stockholder, (y) any member of any 13D Group that includes Stockholder or any Affiliate of Stockholder or (z) any other Person with whom Stockholder is acting in concert) (i) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes in favor of one or more nominees for election to the Board of Directors that are different from the nominees to the Board of Directors in management’s slate, (ii) has initiated (and is continuing) a “proxy contest” or other solicitation of proxies, consents or votes against one or more of the nominees to the Board of Directors in management’s slate, or (iii) has included one or more stockholder nominated director candidates in the Company’s proxy materials using the direct proxy access procedures under the Exchange Act or otherwise. This Section 2.01(d) shall automatically terminate upon the third anniversary of the date of this Agreement.

          (e) In any matter submitted to a vote of stockholders not subject to Section 2.01(d) or 7.02, Stockholder may vote any or all of its Voting Stock in its sole discretion, subject to applicable Law.

          (f) Until the third anniversary of the date of this Agreement, for so long as (x) Stockholder has elected the applicable number of Stockholder Directors in accordance with Section 15(b) of the Convertible Preferred Articles Supplementary, or (y) the Board of Directors or Governance Committee nominates and recommends (subject to Section 2.01(c)(iii) above) the number of Stockholder Nominees contemplated by Section 2.01(c) that Stockholder wishes to nominate and so long as the Company has complied with Section 2.01(c)(iv), Stockholder agrees not to take, without the consent of a majority of the Other Directors, any action to remove or oppose any Other Director or to seek to change the size of the Board of Directors or otherwise seek to expand Stockholder’s representation on the Board of Directors in a manner inconsistent with Section 2.01(d) (except in accordance with Section 15(d) of the Convertible Preferred Articles Supplementary). This Section 2.01(f) shall automatically terminate upon the third anniversary of the date of this Agreement.

          (g) No Stockholder Nominee or Stockholder Director shall be qualified to be a Director unless at all times during his or her term, he or she remains acceptable to Stockholder.

          (h) Upon the death, resignation, retirement, incapacity, disqualification or removal from office for any other reason of any Stockholder Director, Stockholder will have the right to designate the replacement for such Stockholder Director and the Board of Directors will, subject to Section 2.01(c)(iii), elect each such Person so designated in accordance with this Section 2.01(h). Upon the death, resignation, incapacity, disqualification or removal of any Public Director, a majority of the Public Directors will have the exclusive right to designate the replacement for such Public Director and elect same.

          (i) For the avoidance of doubt, Stockholder Directors shall be entitled to compensation and expense reimbursement in accordance with the Company’s policies and practices applicable to Directors generally. The Company will also provide and hereby agrees to enter into indemnification agreements with the Stockholder Directors on terms not less favorable to the Stockholder Directors than any indemnification agreement entered into with any Other Director.

          (j) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Article II and in the event of any such inconsistency, shall negotiate in good faith to revise this Article II to achieve the parties’ intention set forth herein to the greatest extent possible.

          (k) Notwithstanding anything to the contrary in this Section 2.01, Stockholder shall be under no obligation to vote in favor of an Other Director nominee who has been nominated by a Person other than the Governance Committee or the Board of Directors to the extent Stockholder determines, in good faith and after consideration of specific written advice of outside counsel (a copy of which will be provided to the Company and the Board of Directors), that the hypothetical nomination or

recommendation of such nominee by the Board of Directors would have been reasonably expected to violate the Directors’ duties under MGCL §2-405.1(a) because (i) such nominee is unfit to serve as a director of a company listed or quoted on the primary stock exchange or quotation system on which the Company’s Common Stock is listed or quoted or (ii) service by such nominee as a Director would reasonably be expected to violate applicable Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted; provided that Stockholder shall make such determination as soon as practicable and, if applicable, provide written notice thereof to the Company and Board of Directors as soon as practicable thereafter.

          (l) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, Stockholder shall be entitled to designate (and to remove and replace from time to time) a representative (the “ Stockholder Observer ”) who shall (i) have the right to receive due notice of and to attend and participate in discussions (but not vote on any matters on which the directors are entitled to vote) at all meetings of the entire Board of Directors and, if permitted by any committee of the Board of Directors (as determined by such committee), meetings of such committee of the Board of Directors, (ii) have the right to receive copies of all documents and other information, including minutes, consents, business plans, presentation materials, budgets and financial information furnished to all members of the Board of Directors and any committees thereof (to the extent the Stockholder Observer has received permission to participate in the meeting of such committee), in each case, substantially concurrently with the provision of such documents or information to the members of the Board of Directors or the committee, as applicable; provided that the observation is not prohibited by applicable Law, the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted and shall not require the Company to jeopardize the attorney-client privilege of the Company and (iii) be entitled to be indemnified by the Company to the same extent mutatis mutandis as if the Stockholder Observer was a director.

          SECTION 2.02. Information Rights. For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 10% or more, each Stockholder shall be entitled to receive the financial and other information (the “ Lender Information ”) provided to all of the Lenders (at the same time such information is made available to the Lenders) by the Company in the form and same manner in which it is delivered to such Lenders. The Lender Information shall be subject to the confidentiality provisions set forth in Section 8.16.

          SECTION 2.03. Committees. Stockholder Directors shall have the right (at Stockholder’s election) to serve on each Standing Committee of the Board of Directors and the number of Stockholder Directors on a Standing Committee of the Board of Directors shall be not less than (x) the number of Stockholder Directors at such time divided by (y) the total number of seats on the Board of Directors at such time multiplied by (z) the number of Directors serving on such Standing Committee (rounded

to the nearest whole number). Stockholder shall have the right to select the Stockholder Directors that will serve on each Standing Committee of the Board of Directors; provided that, so long as there are any Stockholder Directors serving on the Board of Directors, at least one Stockholder Director shall have the right to serve on each Standing Committee of the Board of Directors. Notwithstanding the foregoing, a Stockholder Director shall not serve on any Standing Committee if such service would violate any Law, the NYSE Listed Company Manual or, if the Company is not listed on the NYSE, any comparable rule or regulation of the primary stock exchange or quotation system on which the Company Common Stock is listed or quoted. Upon written request by the Stockholder Representative, as soon as reasonably practicable, one Stockholder Director shall be appointed to the board of directors (or similar governing body) of each Subsidiary of the Company requested by such Stockholder Representative and each committee of each such Subsidiary.

          SECTION 2.04. Solicitation of Shares. The Company will use its reasonable best efforts to solicit proxies in favor of the Stockholder Nominees selected in accordance with Section 2.01 from its stockholders eligible to vote for the election of Directors.

          SECTION 2.05. Approval Required for Certain Actions. (a) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of Stockholder will be required for the Company to do (or authorize or permit any of its Subsidiaries to do) any of the following actions (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):

     (i) any Business Combination by the Company, except for any Business Combination involving consideration with a Fair Market Value not exceeding $50,000,000 to be paid by or to the Company or its stockholders, as the case may be;

     (ii) the issuance of any Equity Security of the Company, the creation of any right to acquire such Equity Security or any amendment to the terms of any such Equity Security, to the extent such issuance, creation or amendment requires stockholder approval; provided , however , that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable upon conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any amendment to the Charter or the By-Laws (other than amendments contemplated by (A) this Agreement, (B) the Investment Agreement or (C) the Authorized Capital Stock Charter Amendment);

     (iv) any amendment to the charter of any committee of the Board of Directors or to any corporate governance guideline relating to any matter addressed by this Agreement that would reasonably be expected to circumvent in any manner any of Stockholder’s rights hereunder or the exercise thereof;

     (v) any Discriminatory Transaction;

     (vi) a change of the Company’s policies concerning the need for Board approval intended or reasonably likely to circumvent any of Stockholder’s rights hereunder or the exercise thereof;

     (vii) prior to the Maturity Date, any amendment or refinancing of the ABL Credit Agreement, except for changes that could not reasonably be expected to adversely affect Stockholder in its capacity as a holder of the Convertible Preferred Stock or adversely affect ay rights, privileges or preferences of the Convertible Preferred Stock;

     (viii) any action by the Company or any of its Subsidiaries (including borrowings) that could cause the ABL Credit Facility to limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of Independent Directors of the Board; or

     (ix) any action by the Company or any of its Subsidiaries, including entering into any contract or other agreement, that could limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary.

          (b) For so long as the Stockholder Percentage Interest has been continuously since the Closing Date 17.8% or more, the approval of at least one of the Stockholder Directors will be required for the Board of Directors to approve or authorize, and for the Company to do (or authorize or permit any of its Subsidiaries to do), any of the following (in addition to any other Board of Directors or stockholder approval required by any Law, the Charter or By-Laws):

     (i) any acquisition or disposition (in one transaction or a series of related transactions) of any assets (including any Equity Securities of any Subsidiary of the Company), business operations or securities (other than Equity Securities of the Company), with a Fair Market Value of more than $50,000,000, but excluding any disposition to, or acquisition from or of, a wholly owned Subsidiary of the Company or any disposition that (A) occurs in connection with creating or granting any Encumbrances to a Third Party that is not a Subsidiary or Affiliate of the Company in connection with a bona fide financing or (B) arises as a matter of Law or occurs pursuant to a court order;

     (ii) the issuance of any Equity Security or any other stock or equity interests (voting, non-voting, preferred or common) of the Company or any of its Subsidiaries (other than to the Company or any wholly owned Subsidiary of the Company), the creation of any obligation to acquire such Equity Security or any amendment to the terms of any such Equity Security; provided , however , that this clause (ii) shall not include any issuance (A) pursuant to any employee compensation plan or other benefit plan, including stock option, restricted stock or other equity-based compensation plans, (B) of any Equity Security issued or issuable under rights existing as of the Closing Date, including the Series B Warrants or (C) of any Equity Security issued or issuable under conversion of any Convertible Preferred Stock or pursuant to the Convertible Preferred Stock PIK Dividend Provision or pursuant to the conversion of any of the Convertible Notes outstanding on the date hereof;

     (iii) any repurchase of Equity Securities of the Company or any of its Subsidiaries (other than wholly owned Subsidiaries) pursuant to a self-tender offer, stock repurchase program, open market transaction or otherwise other than (A) a repurchase of Equity Securities of the Company from employees or former employees subject to the terms and conditions of employee stock plans or a purchase of Equity Securities of the Company from Stockholder pursuant to this Agreement, (B) the settlement of all or any portion of any exercised Series B Warrants in cash pursuant to the terms of the Series B Warrants or (C) a repurchase by the Company of the Convertible Notes;

     (iv) any incurrence, assumption, or issuance of Indebtedness in one or a series of related transactions in an aggregate principal amount of more than $50,000,000 (other than any borrowing under the ABL Credit Agreement that do not limit, restrict, prohibit or prevent the Company from paying dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, except to the extent approved in advance by a majority of the Independent Directors of the Board); provided , however , that the foregoing shall not apply to any refinancing of Indebtedness existing on the Closing Date (except any refinancing of the ABL Credit Agreement shall be subject to Section 2.05(a)(vii)); provided further , however , that such refinancing does not (1) increase the principal amount of such Indebtedness (other than as may be necessary for the payment of fees, discounts, expenses and premiums), (2) shorten the maturity thereof, (3) limit, restrict, prohibit or prevent the Company’s ability to pay dividends in full in cash on the Convertible Preferred Stock in the amounts contemplated by the Convertible Preferred Articles Supplementary, and (4) is otherwise on then market terms (as determined by the Board of Directors), and which refinancing may apply to a refinancing of commitments (whether drawn or undrawn) under any revolving credit agreement; or

     (v) the declaration of any dividends or other distributions (whether in cash or property) on shares of Company Common Stock.

          (c) Any transaction between the Company or any of its Subsidiaries, on the one hand, and Stockholder, or any Subsidiary or Affiliate of Stockholder, on the other hand (other than the compensation of Directors and officers in the ordinary course of business), will require the approval of a majority of the Other Directors (in addition to any other Board of Directors’ or stockholders’ approval required by any Law, the Charter or By-Laws).

          (d) The Company will cause its generally applicable policies regarding matters that required approval of the Board of Directors to reflect the requirements of this Section 2.05.

          (e) Notwithstanding the foregoing, Stockholder shall not have any approval rights with respect to any refinancing of (i) the 2011 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes or (ii) the 2012 Convertible Notes, if at the time of such contemplated refinancing, Stockholder, together with its Affiliates own more than 25% of the aggregate principal amount of such notes.

          SECTION 2.06. Stockholder Representative. The parties hereto acknowledge and agree that Yucaipa American Alliance Fund II, LLC shall be the designated representative of Stockholder, or the Stockholder Representative, with the authority to make all decisions and determinations and to take all actions (including giving consents and waivers or agreeing to any amendments to this Agreement or to the termination hereof) required or permitted hereunder on behalf of Stockholder, and any such action, decision or determination so made or taken shall be deemed the action, decision or determination of Stockholder, any notice, document, certificate or information required to be given, whether in writing or otherwise, to any Investor shall be deemed so given if given to Stockholder Representative and the Company shall be fully protected against liability in relying on the actions of the Stockholder Representative as being authorized by the Stockholder.

          SECTION 2.07. VCOC Information Rights/Management Rights. (a) The Company shall provide each Stockholder and any Permitted Transferee with the following information to the extent otherwise prepared by the Company: (1) unaudited monthly financial statements in the form prepared by management consistent with past practice (if so prepared, as soon as available), (2) unaudited quarterly financial statements (as soon as available) and (3) annual financial statements audited by a nationally recognized accounting firm (as soon as available) prepared in all material respects in accordance with GAAP, which audited annual statements shall include: (A) the consolidated balance sheets of the Company and its Subsidiaries and the related consolidated statements of income, shareholders’ equity and cash flows; (B) a comparison to the corresponding data for the corresponding periods of the previous fiscal year and from the Company’s financial plan; and (C) a reasonably detailed narrative descriptive report of the operations of the Company and its Subsidiaries in the form prepared for presentation to the senior management of the Company for the applicable period and for the period from the beginning of the then current fiscal year to the end of such period; provided , however , that to the extent the Company is required by Law or

pursuant to the terms of any outstanding Indebtedness of the Company to prepare any of the foregoing reports or other annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act and such reports are actually prepared by the Company those reports shall be delivered as soon as available ( provided further however , that any such reports shall be deemed to have been delivered when such reports are publicly available via EDGAR, IDEA or any successor system of the SEC).

          (b) In addition, (x) upon reasonable prior notice, and subject to applicable Law relating to the confidentiality of information, the Company shall permit any authorized representatives designated by Stockholder reasonable access at reasonable times upon not less than 5 Business Days prior notice to visit and inspect any of the properties of the Company or any of its Subsidiaries, including its and their books of account, and to discuss its and their affairs, finances and accounts with its and their officers, all at such times as Stockholder may reasonably request and may be mutually agreed upon, and (y) Stockholder shall have the right to consult with and advise the management of the Company and its Subsidiaries, upon reasonable prior written notice at reasonable times from time to time, on all matters relating to the operation of the Company and its Subsidiaries. The Company shall not be required to take any actions contemplated by this Section where such action would jeopardize the attorney-client privilege of the Company or contravene any applicable Law or binding agreement. All information and materials provided pursuant to this Section shall be subject to the confidentiality provisions set forth in Section 8.16.

          (c) The parties hereby acknowledge, agree and reaffirm that Stockholder has the right to elect or nominate, as applicable, up to two members of the Board of Directors pursuant to Section 15(b) of the Convertible Preferred Articles Supplementary and Section 2.01 of this Agreement. Yucaipa American Alliance (Parallel) Fund II, LP (“ YAAF Parallel II ”) shall be entitled to designate one of the members of the Board of Directors, and Yucaipa American Alliance Fund II, LP (“ YAAF II ”) shall be entitled to designate the other member of the Board of Directors, if any; provided , however , that this shall not be deemed to modify the terms of Section 15(b) of the Convetible Preferred Articles Supplementary or Section 2.01 of this Agreement. In the event that YAAF II is not entitled to designate a member of the Board of Directors, then YAAF II shall be entitled to select the Stockholder Observer pursuant to Section 2.01(l).

          (d) The provisions of this Section 2.07 are intended to permit the investments by certain Persons comprising Stockholder, including YAAF Parallel II and YAAF II, in the Company to qualify as “venture capital investments” for purposes of Department of Labor Regulation section 2510.3-101, and the Company agrees to permit any reasonable modifications or additions to this Section 2.07 proposed by such Persons or Stockholder in order to ensure that such Persons continue to have “management rights” with respect to the Company for purposes thereof.

          SECTION 2.08. Labor Consultant . Stockholder shall designate in writing by notice to the Board within 30 days after the date hereof and subject to the Company and the Labor Consultant entering into an appropriate and mutually agreed upon confidentiality and consultant agreement, a consultant (the “ Labor Consultant ”), who

shall be authorized during the Term to attend and participate in all meetings of the Company on any labor-related matters, including with respect to collective bargaining agreements, labor unions or other labor organizations, any strikes, disputes, slowdowns of employees of the Company and any other matter concerning labor relations. The consultant agreement for the Labor Consultant shall obligate the Company to pay the reasonable consulting fees and expenses of the Labor Consultant and will contain confidentiality covenants similar to the terms set forth in Section 8.16.

          SECTION 2.09. Charter and By-Laws . (a) Immediately after the Closing, any Director will have the right to call a meeting of the Board of Directors.

          (b) The Company represents and warrants to Stockholder that it has adopted resolutions providing that automatically upon the Closing and without any further act of any Person, the By-Laws will be amended substantially on the terms set forth in Exhibit A. The Company will not amend, rescind or cause to be superseded such resolution prior to the effectiveness of such amendments.

          (c) The Board of Directors will use reasonable best efforts to ensure, to the extent lawful, at all times that the Charter, By-Laws and corporate governance policies and guidelines of the Company are not at any time inconsistent in any material respect with the provisions of this Agreement.

          SECTION 2.10. Change in Law . Without limiting the obligations of the Board of Directors under Section 2.09(c), in the event any Charter provision, By-Law provision or any Law exists or hereafter comes into force or effect (including by amendment) which conflicts with the terms and conditions of this Agreement, the parties will negotiate in good faith to revise this Agreement to achieve the parties’ intention set forth herein to the greatest extent possible.

ARTICLE III

Registration Rights

          SECTION 3.01. Registration. (a) Prior to the six-month anniversary of the date hereof (the “ Filing Date ”), the Company shall prepare and file with the SEC a Registration Statement providing for the direct primary sales for cash by Stockholder of the Registrable Securities not already covered by an existing and effective Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415. Thereafter, the Company shall use its commercially reasonable efforts to cause the Registration Statement to be declared effective or otherwise to become effective under the Securities Act within 365 days after the date hereof (the “ Effectiveness Date ”), and subject to the other provisions of this Article III, shall use its commercially reasonable efforts to keep the Registration Statement continuously effective under the Securities Act until the shares of Company Common Stock subject to this Article III cease to be Registrable Securities (the “ Effectiveness Period ”). The Company agrees to supplement or make amendments to the Registration Statement as may be necessary to keep such Registration Statement effective during the Effectiveness Period, including (A) to

respond to the comments of the SEC, if any, (B) as may be required by the registration form utilized by the Company for such Registration Statement or by the instructions applicable to such registration form, (C) as may be required by the Securities Act or (D) as may be reasonably requested in writing by Stockholder or any Underwriter regarding information about Stockholder or any Underwriter to be included in a prospectus.

          (b) If (i) the Registration Statement is not filed on or prior to the Filing Date, (ii) a Registration Statement is not declared effective by the SEC or does not otherwise become effective on or prior to its required Effectiveness Date, or (iii) after its Effectiveness Date, such Registration Statement ceases for any reason to be effective and available to Stockholder as to all Registrable Securities to which it is required to cover at any time prior to the expiration of the Effectiveness Period (in each case, except as specifically permitted herein) (any such failure or breach being referred to as a “ Registration Default ,” and for purposes of clauses (i) or (ii) the date on which such Registration Default occurs, and for purposes of clause (iii) the date on which the Registration Statement ceases to be effective and available, being referred to as the “ Registration Default Date ” and each period from and including the Registration Default Date during which a Registration Default has occurred and is continuing, a “ Registration Default Period ”), then, during the Registration Default Period, in addition to any other rights available to Stockholder, the Company shall pay to Stockholder (“ Liquidated Damages ”) in an amount in cash equal to the product of (x) 1.00% per annum and (y) the difference between (1) the sum of (A) $115,000,000 and (B) the Liquidation Preference (as defined in the Convertible Preferred Articles Supplementary) attributable to any Convertible Preferred Stock issued to Stockholder pursuant to the Convertible Preferred Articles Supplementary after the date hereof and (2) the Liquidation Preference attributable to Registrable Securities (determined based on the amount attributable to them prior to their becoming Registrable Securities) Transferred prior to the beginning of the applicable Registration Default Period to a Third Party that does not receive registration rights pursuant to Section 3.14. Liquidated Damages shall accrue from the applicable Registration Default Date until all Registration Defaults have been cured, and shall be payable quarterly in arrears on each March 15, June 15, September 15 and December 15 following the applicable Registration Default Date to the record holder of the applicable security on the date that is 15 days prior to such payment date, until paid in full. Following the cure of any Registration Default, Liquidated Damages will cease to accrue with respect to such Registration Default. Liquidated Damages payable in respect of any Registration Default Period shall be computed on the basis of a 360-day year consisting of twelve 30-day months. Liquidated Damages shall be payable only with respect to a single Registration Default at any given time, notwithstanding the fact that multiple Registration Defaults may have occurred and be continuing.

          (c) At any time and from time to time on or after the Effective Date, upon the written request (a “ Demand Notice ”) of Stockholder requesting that the Company effect an Underwritten Offering of Registrable Securities of Stockholder (a “ Demand Offering ”), the Company shall use its commercially reasonable efforts to effect, as expeditiously as possible, an Underwritten Offering of the Registrable Securities which the Company has been so requested to register; provided , however , that (A) (x) with respect to any Registrable Securities (other than Existing Registrable Securities), the

Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in any 12-month period and (2) no more than five times in the aggregate and (y) with respect to the Existing Registrable Securities, the Company shall be obligated to effect any such Underwritten Offering pursuant to this Section 3.01: (1) no more than two times in