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. (b) In furtherance of the foregoing and to the extent consistent with Section 8.7(c), the Company shall (i) take all necessary or desirable actions reasonably requested by the Requisite Purchasers or the Investment Bank in connection with the consummation of the Company Sale and (ii) make any representations, warranties, indemnities and agreements reasonably requested by the Requisite Purchasers and take such other actions as the Requisite Purchasers may reasonably request in connection with such Company Sale. (c) The Purchasers acknowledge the fiduciary obligations of the Board of Directors in considering, negotiating, approving and recommending to stockholders, any transaction that would result in a Company Sale and acknowledge that such fiduciary obligations require that the Board of Directors act on an informed basis to secure the best value reasonably available to the Company’s stockholders under the circumstances. The Purchasers acknowledge that, although the Company shall be obligated to cause its Board of Directors to retain an Investment Bank pursuant to this Section 8.7 and use its reasonable efforts to assist the Investment Bank in investigating the advisability of a Company Sale, and to solicit interest in and negotiate the terms of a Company Sale, the Board of Directors shall be under no obligation or compulsion to approve or recommend any Company Sale and may reject any or all offers with respect to any such potential Company Sale, if, in the exercise of its fiduciary obligations, the Board of Directors reasonably determines that the same is not in the best interest of, or fair to, the stockholders of the Company (a “Rejected Sale”). In the event of a Rejected Sale, the Board of Directors shall give the Purchasers prompt (and in any event within 5 days) written notice thereof, which notice shall further specify in reasonable detail each reason or reasons that formed the basis for the Board of Director’s determination that such Rejected Sale was not in the best interest of, or fair to, the stockholders of the Company. (d) Immediately upon the occurrence of any additional Remedy Event (or the continuation of any then-existing Remedy Event), and provided that the Requisite Purchasers have not delivered an Appointment Notice within 12 months prior to the delivery of the Appointment Notice for such new or then-existing Remedy Event, the Requisite Purchasers shall have the right to deliver an Appointment Notice to the Company. In the event that the Requisite Purchasers deliver an Appointment Notice that does not result in a Company Sale, and the Remedy Event that gave rise to such Appointment Event has not been cured within twelve months from the date of the original Appointment Notice, the Requisite Purchasers may deliver additional Appointment Notice(s) any time following twelve months after delivery of any prior Appointment Notice. At any time within ninety (90) days following delivery of an Appointment Notice (the “Redemption Period”), the Company may elect by delivery of a Redemption Notice (as defined in the Series C Preferred Stock Certificate of Designation) to the Purchasers, to redeem (subject to each Purchaser’s right to convert to Common Stock pursuant to Section 6 of the Series C Preferred Stock Certificate of Designation) all, but not less than all, of the shares of Series C Preferred Stock then outstanding in accordance with the terms of Section 4A of the Series C Preferred Stock Certificate of Designation and following the redemption of all such shares of Series C Preferred Stock in accordance with the Series C Preferred Stock Certificate of Designation the Company shall no longer be required to comply with the provisions of this Section 8.7. (e) Nothing in this Section 8.7, or in the definition of Remedy Event, shall limit or imply limitation of any other remedy, at law or in equity, available to the Purchasers under this Agreement or the Related Documents or otherwise, for breach of any provision of this Agreement, the Series C Preferred Stock Certificate of Designation, or any Related Document.

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(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.to (b) In furtherance of the foregoing and to the extent consistent with Section 8.7(c), the Company shall (i) take all necessary or desirable actions reasonably requested by the Requisite Purchasers or the Investment Bank in connection with the consummation of the Company Sale and (ii) make any representations, warranties, indemnities and agreements reasonably requested by the Requisite Purchasers and take such other actions as the Requisite Purchasers may reasonably request in connection with such Company Sale. (c) The Purchasers acknowledge Investor acknowledges the fiduciary obligations of the Board of Directors in considering, negotiating, approving and recommending to stockholders, any transaction that would result in a Company Sale and acknowledge acknowledges that such fiduciary obligations require that the Board of Directors act on an informed basis to secure the best value reasonably available to the Company’s stockholders under the circumstances. The Purchasers acknowledge Investor acknowledges that, although the Company shall be obligated to cause its Board of Directors to retain an Investment Bank pursuant to this Section 8.7 5.12 and use its reasonable best efforts to assist the Investment Bank in (i) investigating the advisability of a Company Sale, Sale and to solicit (ii) soliciting interest in and negotiate negotiating the terms of a Company Sale, the Board of Directors shall be under no obligation or compulsion to approve or recommend any Company Sale and may reject any or all offers with respect to any such potential Company Sale, if, in Sale if the exercise Board reasonably determines that approving such potential Company Sale would be a breach of its fiduciary obligations, the Board of Directors reasonably determines duties or that the same is it otherwise would not be in the best interest of, or fair to, to the Company’s stockholders of the Company (a “Rejected Sale”). In the event of a Rejected Sale, the Board of Directors shall give the Purchasers Investor prompt (and in any event within 5 days) written notice thereof, which notice shall further specify in reasonable detail each reason or reasons that formed the basis for the Board of DirectorBoard’s determination that approving such potential Company Sale would be a breach of its fiduciary duties or that such Rejected Sale was otherwise would not be in the best interest of, or fair to, the stockholders of the Company. (d) Immediately upon the occurrence of any additional Remedy Event (or the continuation of any then-existing Remedy Event), and provided that the Requisite Purchasers have not delivered an Appointment Notice within 12 months prior to the delivery of the Appointment Notice for such new or then-existing Remedy Event, the Requisite Purchasers shall have the right to deliver an Appointment Notice to the Company’s stockholders. In the event that the Requisite Purchasers deliver an Appointment Notice that does not result in of a Company Rejected Sale, and the Remedy Event that gave rise to such Appointment Event has not been cured within twelve months from the date of the original Appointment Notice, the Requisite Purchasers Investor may deliver additional Appointment Notice(s) any time following twelve (12) months after delivery of any the prior Appointment Notice. At any time within ninety (90) days following delivery of an Appointment Notice (the “Redemption Period”), the Company may elect by delivery of a Redemption Notice (as defined in the Series C Preferred Stock Certificate of Designation) to the Purchasers, to redeem (subject to each Purchaser’s right to convert to Common Stock pursuant to Section 6 of the Series C Preferred Stock Certificate of Designation) all, but not less than all, of the shares of Series C Preferred Stock then outstanding in accordance with the terms of Section 4A of the Series C Preferred Stock Certificate of Designation and following the redemption of all such shares of Series C Preferred Stock in accordance with the Series C Preferred Stock Certificate of Designation the Company shall no longer be required to comply with the provisions of this Section 8.7. (e) Nothing in this Section 8.7, or in the definition of Remedy Event, shall limit or imply limitation of any other remedy, at law or in equity, available to the Purchasers under this Agreement or the Related Documents or otherwise, for breach of any provision of this Agreement, the Series C Preferred Stock Certificate of Designation, or any Related Document.

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. (b) In furtherance of the foregoing and to the extent consistent with Section 8.7(c), the Company shall (i) take all necessary or desirable actions reasonably requested by the Requisite Purchasers or the Investment Bank in connection with the consummation of the Company Sale and (ii) make any representations, warranties, indemnities and agreements reasonably requested by the Requisite Purchasers and take such other actions as the Requisite Purchasers may reasonably request in connection with such Company Sale. (c) The Purchasers acknowledge the fiduciary obligations of the Board of Directors in considering, negotiating, approving and recommending to stockholders, any transaction that would result in a Company Sale and acknowledge that such fiduciary obligations require that the Board of Directors act on an informed basis to secure the best value reasonably available to the Company’s stockholders under the circumstances. The Purchasers acknowledge that, although the Company shall be obligated to cause its Board of Directors to retain an Investment Bank pursuant to this Section 8.7 and use its reasonable best efforts to assist the Investment Bank in (i) investigating the advisability of a Company Sale, Sale and to solicit (ii) soliciting interest in and negotiate negotiating the terms of a Company Sale, the Board of Directors shall be under no obligation or compulsion to approve or recommend any Company Sale and may reject any or all offers with respect to any such potential Company Sale, if, in the exercise of its fiduciary obligations, the Board of Directors reasonably determines that the same is not in the best interest of, or fair to, the stockholders of the Company (a “Rejected Sale”). In the event of a Rejected Sale, the Board of Directors shall give the Purchasers prompt (and in any event within 5 days) written notice thereof, which notice shall further specify in reasonable detail each reason or reasons that formed the basis for the Board of Director’s determination that such Rejected Sale was not in the best interest of, or fair to, the stockholders of the Company. (d) Immediately upon the occurrence of any additional Remedy Event (or the continuation of any then-existing Remedy Event), and provided that the Requisite Purchasers have not delivered an Appointment Notice within 12 months prior to the delivery of the Appointment Notice for such new or then-existing Remedy Event, the Requisite Purchasers shall have the right to deliver an Appointment Notice to the Company. In the event that the Requisite Purchasers deliver an Appointment Notice that does not result in a Company Sale, and the Remedy Event that gave rise to such Appointment Event has not been cured within twelve months from the date of the original Appointment Notice, the Requisite Purchasers may deliver additional Appointment Notice(s) any time following twelve months after delivery of any prior Appointment Notice. At any time within ninety (90) days following delivery of an Appointment Notice (the “Redemption Period”), the Company may elect by delivery of a Redemption Notice (as defined in the Series C D Preferred Stock Certificate of Designation) to the Purchasers, to redeem (subject to each Purchaser’s right to convert to Common Stock pursuant to Section 6 of the Series C D Preferred Stock Certificate of Designation) all, but not less than all, of the shares of Series C D Preferred Stock then outstanding in accordance with the terms of Section 4A of the Series C D Preferred Stock Certificate of Designation and following the redemption of all such shares of Series C D Preferred Stock in accordance with the Series C D Preferred Stock Certificate of Designation the Company shall no longer be required to comply with the provisions of this Section 8.7. (e) Nothing in this Section 8.7, or in the definition of Remedy Event, shall limit or imply limitation of any other remedy, at law or in equity, available to the Purchasers under this Agreement or the Related Documents or otherwise, for breach of any provision of this Agreement, the Series C D Preferred Stock Certificate of Designation, or any Related Document.

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) 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. (b) In furtherance of the foregoing and to the extent consistent with Section 8.7(c), the Company shall (i) take all necessary or desirable actions reasonably requested by the Requisite Purchasers or the Investment Bank in connection with the consummation of the Company Sale and (ii) make any representations, warranties, indemnities and agreements reasonably requested by the Requisite Purchasers and take such other actions as the Requisite Purchasers may reasonably request in connection with such Company Sale. (c) The Purchasers acknowledge Investor acknowledges the fiduciary obligations of the Board of Directors in considering, negotiating, approving and recommending to stockholders, any transaction that would result in a Company Sale and acknowledge acknowledges that such fiduciary obligations require that the Board of Directors act on an informed basis to secure the best value reasonably available to the Company’s stockholders under the circumstances. The Purchasers acknowledge Investor acknowledges that, although the Company shall be obligated to cause its Board of Directors to retain an Investment Bank pursuant to this Section 8.7 and use its reasonable efforts to assist the Investment Bank in investigating the advisability of a Company Sale, and to solicit interest in and negotiate the terms of a Company Sale, the Board of Directors shall be under no obligation or compulsion to approve or recommend any Company Sale and may reject any or all offers with respect to any such potential Company Sale, if, in the exercise of its fiduciary obligations, the Board of Directors reasonably determines that the same is not in the best interest of, or fair to, the stockholders of the Company (a “Rejected Sale”). In the event of a Rejected Sale, the Board of Directors shall give the Purchasers prompt (and in any event within 5 days) written notice thereof, which notice shall further specify in reasonable detail each reason or reasons that formed the basis for the Board of Director’s determination that such Rejected Sale was not in the best interest of, or fair to, the stockholders of the Company. (d) Immediately upon the occurrence of any additional Remedy Event (or the continuation of any then-existing Remedy Event), and provided that the Requisite Purchasers have not delivered an Appointment Notice within 12 months prior to the delivery of the Appointment Notice for such new or then-existing Remedy Event, the Requisite Purchasers shall have the right to deliver an Appointment Notice to the Company. In the event that the Requisite Purchasers deliver an Appointment Notice that does not result in a Company Sale, and the Remedy Event that gave rise to such Appointment Event has not been cured within twelve months from the date of the original Appointment Notice, the Requisite Purchasers may deliver additional Appointment Notice(s) any time following twelve months after delivery of any prior Appointment Notice. At any time within ninety (90) days following delivery of an Appointment Notice (the “Redemption Period”), the Company may elect by delivery of a Redemption Notice (as defined in the Series C Preferred Stock Certificate of Designation) to the Purchasers, to redeem (subject to each Purchaser’s right to convert to Common Stock pursuant to Section 6 of the Series C Preferred Stock Certificate of Designation) all, but not less than all, of the shares of Series C Preferred Stock then outstanding in accordance with the terms of Section 4A of the Series C Preferred Stock Certificate of Designation and following the redemption of all such shares of Series C Preferred Stock in accordance with the Series C Preferred Stock Certificate of Designation the Company shall no longer be required to comply with the provisions of this Section 8.7. (e) Nothing in this Section 8.7, or in the definition of Remedy Event, shall limit or imply limitation of any other remedy, at law or in equity, available to the Purchasers under this Agreement or the Related Documents or otherwise, for breach of any provision of this Agreement, the Series C Preferred Stock Certificate of Designation, or any Related Document.,