Common use of Appointment Right Clause in Contracts

Appointment Right. (a) From and after the earlier of (x) the 7th anniversary of the Closing Date and (y) the occurrence of a Remedy Event, so long as any Series C Shares remain outstanding and, with respect to Section 8.7(a)(y) such Remedy Event has not been cured by the Company or a Redemption Notice has not been delivered by the Company in accordance with the terms of the Series C Preferred Stock Certificate of Designation, the Requisite Purchasers shall have the right to cause the Company to retain an investment banker to identify and advise the Company regarding opportunities for a Company Sale and participate on the Company’s behalf in negotiations for, and to assist the Company in conducting, such Company Sale (the “Appointment Right”), the consummation of which shall be subject to the Requisite Purchasers’ consent. To exercise their Appointment Right, the Requisite Purchasers shall give prompt written notice to the Company (the “Appointment Notice”) of their intention to cause, to the extent consistent with Section 8.7(c), a Company Sale, which Appointment Notice shall identify three investment banks chosen by the Requisite Purchasers to conduct such Company Sale. Within thirty (30) days of the Company’s receipt of the Appointment Notice, the Company shall retain one of the investment banks (the “Investment Bank”) identified by the Requisite Purchasers in the Appointment Notice to investigate the advisability of, solicit interest in and, to the extent consistent with Section 8.7(c), negotiate for an orderly Company Sale with the objective of achieving the highest practicable value for the Company’s stockholders within a reasonable period of time. The Company shall cause its Board of Directors and officers to (i) cooperate with the Investment Bank in accordance with the procedures established by the Investment Bank and the Board of Directors of the Company, to solicit interest in an orderly Company Sale, (ii) use their reasonable efforts, consistent with their fiduciary obligations, to reach an agreement on the optimum structure and the terms and conditions for a Company Sale (including whether such Company Sale will be consummated by merger, sale of assets or sale of capital stock) and (iii) retain independent legal counsel, which shall be chosen by the Board of Directors but shall be reasonably acceptable to the Requisite Purchasers (“Company Counsel”), to advise the Company on such Company Sale. The Company shall pay all fees and expenses incurred in connection with the Company Sale, including all fees and expenses of the Investment Bank, the Company Counsel and one law firm retained by the Requisite Purchasers in connection with the investigation, documentation, negotiation and consummation of the Company Sale. Notwithstanding the foregoing, the Company shall not be required to reimburse the Purchasers for any legal fees or expenses incurred in connection with any judicial proceeding primarily arising as a result of the consummation of the Company Sale contemplated by this Section 8.7 in which the Purchasers and the Company are adversaries.

Appointment Right. (a) From and after the earlier of (x) the 7th anniversary of the Closing Date August 17, 2012 and (y) the occurrence of a Remedy Event, so long as any Series C D Shares remain outstanding andand so long as any accrued and unpaid dividends remain outstanding in respect thereof, with respect to Section 8.7(a)(y) such Remedy Event has not been cured by the Company within (i) 30 days of the occurrence of a Compliance Remedy Event and (ii) 10 days following the occurrence of a Payment Remedy Event or a Redemption Notice has not been delivered by the Company in accordance with the terms of the Series C D Preferred Stock Certificate of Designation, the Requisite Purchasers shall have the right to cause the Company to retain an investment banker to identify and advise the Company regarding opportunities for a Company Sale and participate on the Company’s behalf in negotiations for, and to assist the Company in conducting, such Company Sale (the “Appointment Right”), the consummation of which shall be subject to the Requisite Purchasers’ consent. To exercise their Appointment Right, the Requisite Purchasers shall give prompt written notice to the Company (the “Appointment Notice”) of their intention to cause, to the extent consistent with Section 8.7(c), a Company Sale, which Appointment Notice shall identify three investment banks chosen by the Requisite Purchasers to conduct such Company Sale. Within thirty (30) days of the Company’s receipt of the Appointment Notice, the Company shall retain one of the investment banks (the “Investment Bank”) identified by the Requisite Purchasers in the Appointment Notice to investigate the advisability of, solicit interest in and, to the extent consistent with Section 8.7(c), negotiate for an orderly Company Sale with the objective of achieving the highest practicable value for the Company’s stockholders within a reasonable period of time. The Company shall cause its Board of Directors and officers to (i) cooperate with the Investment Bank in accordance with the procedures established by the Investment Bank and the Board of Directors of the Company, to solicit interest in an orderly Company Sale, (ii) use their reasonable efforts, consistent with their fiduciary obligations, to reach an agreement on the optimum structure and the terms and conditions for a Company Sale (including whether such Company Sale will be consummated by merger, sale of assets or sale of capital stock) and (iii) retain independent legal counsel, which shall be chosen by the Board of Directors but shall be reasonably acceptable to the Requisite Purchasers (“Company Counsel”), to advise the Company on such Company Sale. The Company shall pay all fees and expenses incurred in connection with the Company Sale, including all fees and expenses of the Investment Bank, the Company Counsel and one law firm retained by the Requisite Purchasers in connection with the investigation, documentation, negotiation and consummation of the Company Sale. Notwithstanding the foregoing, the Company shall not be required to reimburse the Purchasers for any legal fees or expenses incurred in connection with any judicial proceeding primarily arising as a result of the consummation of the Company Sale contemplated by this Section 8.7 in which the Purchasers and the Company are adversaries.

Appointment Right. (a) From and after the earlier of (x) the 7th seventh anniversary of the Closing Date and (y) the occurrence of a Remedy EventDate, for so long as any Series C Shares remain outstanding and, with respect the 50% Beneficial Ownership Requirement continues to Section 8.7(a)(y) such Remedy Event has not been cured by the Company or a Redemption Notice has not been delivered by the Company in accordance with the terms of the Series C Preferred Stock Certificate of Designationbe satisfied, the Requisite Purchasers Investor shall have the right to cause the Company to retain an investment banker to identify and advise the Company regarding opportunities for a Company Sale and participate on the Company’s behalf in negotiations for, and to assist the Company in conducting, such Company Sale (the “Appointment Right”), the consummation of which shall be subject to the Requisite Purchasers’ Investor’s consent. To exercise their Appointment Right, the Requisite Purchasers Investor shall give prompt written notice to the Company (the “Appointment Notice”) of their intention to cause, to the extent consistent with Section 8.7(c5.11(b), a Company Sale, which Appointment Notice shall identify three investment banks chosen by the Requisite Purchasers Investor to conduct such Company Sale. Within thirty sixty (3060) days of the Company’s receipt of the Appointment Notice, the Company shall retain one of the investment banks (the “Investment Bank”) identified by the Requisite Purchasers Investor in the Appointment Notice to investigate the advisability of, solicit interest in and, to the extent consistent with Section 8.7(c5.11(b), shall use reasonable best efforts to negotiate for an orderly Company Sale with the objective of achieving the highest practicable value for the Company’s stockholders within a reasonable period of time. The Company shall cause its the Board of Directors and officers of the Company to (i) cooperate with the Investment Bank in accordance with the procedures established by the Investment Bank and the Board of Directors of the CompanyBoard, to solicit interest in an orderly Company Sale, Sale and (ii) use their reasonable efforts, consistent with their fiduciary obligations, if in the best interest of the Company and fair to the Company’s stockholders, and not otherwise in breach of the Board’s fiduciary duties, reach an agreement on the optimum structure and the terms and conditions for a Company Sale (including whether such Company Sale will be consummated by merger, sale of assets or sale of capital stock). (b) and (iii) retain independent legal counsel, which shall be chosen by The Investor acknowledges the fiduciary obligations of the Board of Directors but shall be in considering, negotiating, approving and recommending to stockholders, any transaction that would result in a Company Sale and acknowledges that such fiduciary obligations require that the Board act on an informed basis to secure the best value reasonably acceptable available to the Requisite Purchasers (“Company Counsel”), to advise Company’s stockholders under the Company on such Company Salecircumstances. The Company shall pay all fees and expenses incurred in connection with the Company Sale, including all fees and expenses of the Investment Bank, the Company Counsel and one law firm retained by the Requisite Purchasers in connection with the investigation, documentation, negotiation and consummation of the Company Sale. Notwithstanding the foregoing, the Company shall not be required to reimburse the Purchasers for any legal fees or expenses incurred in connection with any judicial proceeding primarily arising as a result of the consummation of the Company Sale contemplated by this Section 8.7 in which the Purchasers and the Company are adversaries.Investor acknowledges that,