Common use of Board of Directors Matters Clause in Contracts

Board of Directors Matters. (a) On or before the Closing Date, the Company shall take such action as is necessary to cause the size of its Board of Directors to consist of seven directors, of which four shall be designees of Investor, one shall be a designee of Axess, one shall be independent of Investor and Axess and one shall be the Chief Executive Officer of the Company; each of such individuals shall be designated in writing to the Company within three business days prior to the Closing and their election to the Board of Directors to be effective as of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Threshold Amount, the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a similar function) shall recommend to the Board of Directors, and the Board of Directors will use its good faith efforts to ensure, that the slate of nominees recommended by the Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to the number of directors that would constitute a majority of such board following such election. In the event any designee of Investor hereunder shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby with a person designated by Investor. Any nominee or designee to the Board of Directors of Investor or the Company shall be reasonably satisfactory to the other party, and each party shall afford the other a reasonable opportunity to review and comment upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to the Board of Directors. During such time as Investor is entitled to have designees on the Board of Directors, the Investor shall also be entitled to have a designee serve on each committee of the Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in connection with any transaction or potential transaction involving the Company and Investor, then such designee shall not be required to be appointed to such committee. As used above, "Initial Threshold Amount" means the aggregate of the number of Investor Shares and the number of Investor Warrant Shares issuable under the Investor A Warrant (as if issued on the Closing Date).

Board of Directors Matters. (a) On or before Provided the Closing Dateaggregate Purchase Price for the Purchased Shares purchased by the Lead Buyer hereunder is at least $25 million, the Company Lead Buyer shall take such action as is necessary have the right to cause the size of its Board of Directors to consist of seven directorsdesignate, of which four shall be designees of Investorat Closing, one shall individual to be a designee of Axess, one shall be independent of Investor considered by the Nominating and Axess and one shall be Corporate Governance Committee (the Chief Executive Officer “Nominating Committee”) of the Company; each of such individuals shall be designated in writing to the Company within three business days prior to the Closing and their election to the Board of Directors to be effective as of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Threshold Amount, the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a similar function) shall recommend to the ’s Board of Directors, in accordance with the Nominating Committee’s charter and applicable rules and regulations of the SEC and the Principal Market, for nomination and election to the Company’s Board of Directors will use its good faith efforts to ensure, that promptly following the slate of nominees recommended by Closing (the “Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to the number of directors that would constitute a majority of such board following such electionDesignation Right”). In the event any designee such individual is no longer employed by or in a business relationship or affiliation with the Lead Buyer or takes another position within the Lead Buyer’s organization which makes his or her continuing representation of Investor hereunder the Lead Buyer on the Company’s Board of Directors undesirable in the view of the Lead Buyer, or if an individual so designated by the Lead Buyer pursuant to the Board Designation Right is not elected to the Company’s Board of Directors, then the Lead Buyer shall cease be permitted to serve as a director designate another individual to be so nominated and elected. The individual designated by the Lead Buyer for any reason, election to the Company’s Board of Directors shall fill be considered by the vacancy resulting thereby Nominating Committee, in accordance with a person designated by Investor. Any nominee or designee its charter and applicable rules and regulations of the SEC and the Principal Market, for nomination and re-election to the Company’s Board of Directors at the Company’s 2008 Annual Meeting of Investor or Shareholders and thereafter until otherwise decided by the Company shall be reasonably satisfactory Lead Buyer. If the Lead Buyer determines not to the other party, and each party shall afford the other a reasonable opportunity to review and comment upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to exercise the Board of Directors. During such time as Investor is entitled to have designees Designation Right, then for 30 days following the next occurring vacancy on the Board of Directors, the Investor Lead Buyer shall also have the right to designate one individual to be entitled considered by the Nominating Committee for election to have a designee serve on each committee of the Company’s Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in connection with any transaction or potential transaction involving the Company and Investor, then such designee shall not be required to be appointed to such committee. As used above, "Initial Threshold Amount" means the aggregate of the number of Investor Shares and the number of Investor Warrant Shares issuable under the Investor A Warrant (as if issued Directors on the Closing Date)terms described above.

Board of Directors Matters. (a) On KKR shall have the right to nominate, pursuant to the terms and subject to the conditions of this Section 5.5, one nominee to the Company’s Board of Directors (the “Board Designee”) for consideration by the Board of Directors (and the Nominating and Governance Committee of the Board of Directors), such consideration to include whether such nominee (i) is qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or before the Closing Date, guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements and (ii) meets the independence requirements with respect to the NYSE Listed Company Manual or any successor thereto; provided that nothing contained herein shall take such action as is necessary to cause require the size of its Board of Directors to consist appoint such Board Designee to the Board of seven directorsDirectors. As of the date hereof, KKR has designated Bxxxx Xxxxxxx as a nominee for the Board Designee, and the Company hereby acknowledges that said Board Designee meets the requirements set forth in clauses (i) and (ii) in the previous sentence of which four this Section 5.5(a). KKR will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Governance Committee may reasonably request. Provided that the Board Designee is then acceptable to the Board of Directors (including the Nominating and Governance Committee of the Board of Directors) in its good faith discretion, the Company’s Nominating and Governance Committee shall be designees consider, consistent with its charter, the nomination of Investorthe Board Designee for election or re-election, one as the case may be, as a director so long as the KKR Purchaser and its Affiliates, collectively, then Own at least $200 million principal amount of the Notes. It shall be a designee of Axess, one shall be independent of Investor and Axess and one shall be the Chief Executive Officer of the Company; each of such individuals shall be designated in writing condition to the Company within three business days nomination for election or re-election of any Board Designee that such Board Designee tender a conditional resignation letter prior to the Closing and their his or her nomination for election or re-election to the Board of Directors to be effective as providing such Board Designee’s irrevocable offer of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Threshold Amount, the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a similar function) shall recommend to the Board of Directors, and resignation from the Board of Directors will use its good faith efforts to ensure, that the slate of nominees recommended by the Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to the number of directors that would constitute a majority of such board following such election. In the event any designee of Investor hereunder shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby with a person designated by Investor. Any nominee or designee to the Board of Directors of Investor or the Company shall be reasonably satisfactory to the other party, and each party shall afford the other a reasonable opportunity to review and comment effective upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to the Board of Directors. During such time as Investor is entitled to have designees on the Board of Directors, the Investor shall also be entitled to have a designee serve on each committee of the Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in connection with any transaction or potential transaction involving the Company and Investor, then such designee shall not be required to be appointed to such committee. As used above, "Initial Threshold Amount" means the aggregate of the number of Investor Shares and the number of Investor Warrant Shares issuable under the Investor A Warrant (as if issued on the Closing Designee Termination Date).

Board of Directors Matters. (a) On or before the Closing Date, the Company shall take such action as is necessary to cause increase the size of its Board of Directors to consist of seven directors, of which four directors and shall be cause three designees of Investor, one shall be a designee of Axess, one shall be independent of Investor and Axess and one shall be the Chief Executive Officer of the Company; each of such individuals who shall be designated in writing to the Company within three business days prior to the Closing and their election Closing, to be elected to the three newly created vacancies on the Board of Directors Directors, such elections to be effective as of the Closing Date. During such time after the Closing as Investor and its affiliates shall continue to own in the aggregate not less than 50% of its and their Initial Threshold AmountCommon Holdings, the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a similar function) shall recommend to the Board of Directors, and the Board of Directors will use its good faith efforts to ensure, that the slate of nominees recommended by the Board of Directors to stockholders for election as directors at each annual meeting of stockholders of the Company, commencing with the first annual meeting of stockholders after the date of this Agreement, includes at least the number of designees of Investor equal to one less than the number of directors that would constitute a majority of such board following such election. In the event any designee of Investor hereunder shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby with a person designated by Investor. Any nominee or designee to the Board of Directors of Investor or the Company shall be reasonably satisfactory to the other party, and each party shall afford the other a reasonable opportunity to review and comment upon the qualifications of any such nominee or designee prior to recommending such nominee or designee for election to the Board of Directors. During such time as Investor is entitled to have designees on the Board of Directors, the Investor shall also be entitled to have a designee serve on each committee of the Board of Directors, including any special committee, and the Company agrees to cause such designee to be so appointed; provided, however, that if such designee would not be considered "independent" or "disinterested" or the equivalent (i) for purposes of any applicable rule of The Nasdaq Stock Market, Inc. or any provision of the U.S. federal securities laws (and the rules and regulations thereunder) or the Code or (ii) for purposes of any special committee formed in connection with any transaction or potential transaction involving the Company and Investor, then such designee shall not be required to be appointed to such committee. As used above, "Initial Threshold AmountCommon Holdings" means the aggregate of the number of Investor Shares and the number of Investor Warrant Conversion Shares issuable under the Investor A Warrant (as if issued on the Closing Date).