Common use of Board of Directors of Parent Clause in Contracts

Board of Directors of Parent. Prior to the Effective Time, Parent and the Company shall take all actions necessary (including by securing and causing to be delivered to Parent and the Company (with evidence thereof provided to Parent and the Company, as applicable) the resignations of then-serving directors of the Parent Board who are not Parent Designees and of the Company Board) to cause, in each case, effective as of the Effective Time: (i) the number of directors constituting the full board of directors of Parent (the “New Board”) to be 11 members; (ii) the New Board to be composed of: (A) six directors from among the members of the Parent Board as of the date of this Agreement designated by mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which shall include the Chief Executive Officer of Parent as of immediately prior to the Effective Time (the “Parent Designees”); and (B) five directors from among the members of the Company Board as of the date of this Agreement designated by mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which shall include the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time (the “Company Designees”); (iii) all of the Parent Designees and the Company Designees to be appointed, elected and approved as directors of the New Board by a vote of at least a majority of the Parent Board in office as of immediately prior to the Effective Time; and (iv) (x) the Chairman of the Parent Board as of immediately prior to the Effective Time shall be appointed to serve as Chairman of the New Board and (y) the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time shall be appointed to serve as Vice Chairman of the New Board. If, prior to the Effective Time, any Parent Designee is unwilling or unable to serve (or to continue to serve) as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Parent Board as of the date of this Agreement, and such replacement shall constitute a Parent Designee for all purposes under this Agreement. If, prior to the Effective Time, any Company Designee is unwilling or unable to serve as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Company Board as of the date of this Agreement and such replacement shall constitute a Company Designee for all purposes under this Agreement. At least five of the Parent Designees and at least four of the Company Designees shall meet the independence standards of the Nasdaq as may be applicable with respect to Parent as of the Effective Time.

Board of Directors of Parent. Prior At the Effective Time, the Board of Directors of Parent shall consist of such number of persons as may be determined by Parent. If the Board of Directors of Parent is to consist of 13 directors at the Effective Time, Parent and shall, except as provided otherwise in this Section 1.7, cause the four persons from the Company's Board of Directors designated in writing by the Company shall take all actions necessary (including by securing and causing no later than March 10, 2003 to be delivered appointed to the Board of Directors of Parent and at the Effective Time; provided, however, that if the Board of Directors of Parent will consist of more or less than 13 directors immediately after the Effective Time, then Parent shall cause a number of persons designated in writing by the Company (with evidence thereof provided to Parent and from the Company, 's Board of Directors as applicableexisting on the date hereof) the resignations of thenequal to four-serving directors thirteenths of the Parent Board who are not Parent Designees and total number of directors (rounded upward to the Company Boardnearest whole number) to cause, in each case, effective as be included on the Board of Directors of Parent at the Effective Time: (i) . The persons designated by the Company for inclusion on the Board of Directors of Parent pursuant to this Section 1.7 are referred to herein as the "Company Designees". Parent shall notify the Company if the number of directors constituting the full board Board of Directors at the Effective Time will be more or less than 13 directors. If the number of directors of Parent (the “New Board”) to be 11 members; (ii) the New Board to be composed of: (A) six directors from among the members of the Parent Board as of the date of this Agreement designated by mutual agreement of the individuals Company pursuant to this Section 1.7 is less than four, then Parent shall cause the Company Designees to be appointed in the order designated by the Company. If the number of directors to be designated by the Company pursuant to this Section 1.7 is greater than four directors, the Company shall provide Parent with written notice of the additional individuals designated to serve as Company Designees. The Company shall provide Parent the Chairman information concerning each Company Designee that would be required to be included in a proxy statement under Regulation 14A of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). If Parent determines in its sole discretion that any Company Designee is unacceptable to Parent, Parent and the Vice Chairman Company will agree upon a substitute Company Designee from the Company's Board of the New Board Directors as soon as practicable and in any event prior to the mailing of the Proxy Statement/Prospectus, which Prospectus (as defined in Section 5.8). The Company Designees shall include be allocated as evenly as possible among the Chief Executive Officer different classes of Parent directors, but otherwise at Parent's discretion; provided, however, that, in the event there are four or more Company Designees and except as provided in the following sentence, the term of immediately prior to one Company Designee may expire at Parent's annual meeting held in 2004 and the terms of the remaining Company Designees shall expire at Parent's annual meeting held in 2005 and 2006. If the Effective Time (the “Parent Designees”); and (B) five directors from among the members of occurs prior to Parent's annual meeting held in 2003, the Company Board as of Designee(s) who would have been appointed to a term expiring at Parent's annual meeting held in 2006 under the date of this Agreement designated by mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which immediately preceding sentence shall include the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time (the “Company Designees”); (iii) all of the Parent Designees and the Company Designees to be appointed, elected and approved as directors of the New Board by a vote of at least a majority of the Parent Board in office as of immediately prior to the Effective Time; and (iv) (x) the Chairman of the Parent Board as of immediately prior to the Effective Time shall instead be appointed to serve as Chairman of the New Board a term expiring at Parent's annual meeting held in 2003 and (y) the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time shall be appointed nominated for election at that meeting to serve as Vice Chairman of the New Board. If, prior to the Effective Time, any Parent Designee is unwilling or unable to serve (or to continue to serve) as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Parent Board as of the date of this Agreement, and such replacement shall constitute a Parent Designee for all purposes under this Agreement. If, prior to the Effective Time, any Company Designee is unwilling or unable to serve as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Company Board as of the date of this Agreement and such replacement shall constitute a Company Designee for all purposes under this Agreement. At least five of the Parent Designees and term expiring at least four of the Company Designees shall meet the independence standards of the Nasdaq as may be applicable with respect to Parent as of the Effective TimeParent's annual meeting held in 2006.

Board of Directors of Parent. At Closing, the current board of directors of Parent shall deliver duly adopted resolutions to: (a) set the size of Parent's board of directors at seven (7) members effective as of the Closing; and (b) appoint the following persons to Parent's board of directors effective as of the Closing: (i) Richard J. Lewis, George P. Xxxxxx, Xxxxx F. Xxxxxx, Xxxxx Xohxxxx, Xxxxx X. Poxxxx xxx Xxxxy Xxxxxxxxx, xxxx of wxxx xx x xxxxxxt director of the Company; and (ii) one member selected KRM Fund who shall be acceptable to Richard J. Lewis, which acxxxxxxxx xxxxx xot be unreasonably withheld ("KRM Designated Member"); and (c) accepting the resignations of the current officers and directors of Parent effective as of the Closing ("Resolutions"). At Closing, the current officers and directors of Parent shall deliver their resignations, as appropriate, as officers and directors of Parent to be effective upon the Closing (the "Resignations"). Prior to the Effective TimeClosing, Parent and the Company shall take all actions necessary (including by securing and causing deliver or cause to be delivered to Parent completed and signed director and officer questionnaires ("Questionnaires") in the Company (with evidence thereof provided to Parent English language for the new directors and the Company, as applicable) the resignations of then-serving directors of the Parent Board who are not Parent Designees and of the Company Board) to cause, in each case, effective as of the Effective Time: (i) the number of directors constituting the full board of directors of Parent (the “New Board”) to be 11 members; (ii) the New Board to be composed of: (A) six directors from among the members of the Parent Board as of the date of this Agreement designated by mutual agreement of the individuals officer to be appointed as by Parent following Closing. The foregoing designations of the Chairman new directors (and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which shall include the Chief Executive Officer of Parent as of immediately prior to the Effective Time (the “Parent Designees”); and (B) five directors from among the members of the Company Board as of the date of this Agreement designated by mutual agreement of the individuals officers to be appointed as the Chairman and the Vice Chairman by Parent following Closing) shall be subject to Parent's receipt of the New Board prior completed and signed Questionnaires ("D&O Information"). As a condition to Closing, the mailing holders of the Proxy Statement/Prospectus, which shall include the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time (the “Company Designees”); (iii) all of the Parent Designees and the Company Designees to be appointed, elected and approved as directors of the New Board by a vote of at least Company's capital stock resenting a majority of the Parent Board in office as of Company's voting power immediately prior to the Effective Time; Closing ("Majority Holders") and KRM Fund shall execute and deliver a certain voting agreement (iv"Voting Agreement") in the form attached hereto as Exhibit B which shall provide, among other things, that the Majority Holders will vote their Series A Preferred Stock (x) or in the Chairman event of conversion, the Parent Board as Common Stock issuable upon conversion) to elect the KRM Designated Member to Parent's board of immediately prior to directors for a period of one year following the Effective Time shall be appointed to serve as Chairman Closing. Within ninety days following the Closing, Parent's board of directors will satisfy the New Board independence, audit and compensation committee and other corporate governance requirements under the Sarbanes-Oxley Act of 2002 (y) xxx "XXX Xxx"), the President rules and Chief Executive Officer regulations promulgated by the SEC, and the requirements of the Company as of immediately prior to the Effective Time shall be appointed to serve as Vice Chairman of the New Board. If, prior to the Effective Time, any Parent Designee is unwilling either NASDAQ or unable to serve American Stock Exchange (or to continue to serve"AMEX") as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Parent, whether or not Parent Board as of the date of this AgreementCommon Stock is listed or quoted, and or qualifies for listing or quotation, on such replacement shall constitute a Parent Designee for all purposes under this Agreement. If, prior to the Effective Time, any Company Designee is unwilling or unable to serve as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Company Board as of the date of this Agreement and such replacement shall constitute a Company Designee for all purposes under this Agreement. At least five of the Parent Designees and at least four of the Company Designees shall meet the independence standards of the Nasdaq as may be applicable with respect to Parent as of the Effective Timenational exchanges.

Board of Directors of Parent. Prior (a) Upon and after the Effective Time, and subject to the provisions of Delaware Law, the Board of Directors of Parent shall consist of eight (8) directors established and maintained pursuant to and in accordance with the requirements of (i) this Section 5.22 and (ii) the rules and regulations of the SEC and the American Stock Exchange (“AMEX”) from time to time, and any more stringent requirements of NASDAQ or the NYSE from time to time relating to companies’ boards of directors to the extent not inconsistent therewith (collectively, the “Exchange Rules”). A majority of the directors, or such greater number as required by the Exchange Rules, shall be “independent” as defined or construed in accordance with the Exchange Rules. Parent’s nominees to the Board of Directors of Parent shall be Xxxxxx X. Xxxxxxx, M.D. Xxxx Xxxxxxx, Xxxx Xxxxxxx, and Xxxxxx X. Xxxxx (“Parent’s Board Nominees”). The Company’s nominees to the Board of Directors of Parent shall be Xxxxxxx Xxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxx, and Xxxxx Xxxxxxxx (“Company’s Board Nominees”). Parent and the Company agree to take all actions necessary and appropriate to cause the Board of Directors of Parent to be composed of Parent’s Board Nominees and the Company’s Board Nominees immediately upon and after the Effective Time until their successors have been duly appointed. If, prior to the Effective Time, Parent and the Company conclude, after reasonable inquiry, that the majority of the proposed directors are not “independent” as defined or construed in accordance with the Exchange Rules, then the Board of Directors of Parent shall take all actions necessary be expanded to consist of nine (including 9) directors immediately upon and after the Effective Time, and, subject to approval of Parent’s Board of Directors (which approval shall not be unreasonably withheld or delayed), the additional director shall be Xxxx Xxxxxxxxxx, or if such person is unable to serve or is not approved by securing Parent’s Board of Directors, such other person who shall be independent and causing to be delivered to Parent and the Company (with evidence thereof provided to jointly nominated by Parent and the Company, as applicable) the resignations of then-serving directors of the Parent Board who are not Parent Designees and of the Company Board) to cause, in each case, effective as of the Effective Time: (i) the number of directors constituting the full board of directors of Parent (the “New Board”) to be 11 members; (ii) the New Board to be composed of: (A) six directors from among the members of the Parent Board as of the date of this Agreement designated by mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which shall include the Chief Executive Officer of Parent as of immediately prior to the Effective Time (the “Parent Designees”); and (B) five directors from among the members of the Company Board as of the date of this Agreement designated by mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board prior to the mailing of the Proxy Statement/Prospectus, which shall include the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time (the “Company Designees”); (iii) all of the Parent Designees and the Company Designees to be appointed, elected and approved as directors of the New Board by a vote of at least a majority of the Parent Board in office as of immediately prior to the Effective Time; and (iv) (x) the Chairman of the Parent Board as of immediately prior to the Effective Time shall be appointed to serve as Chairman of the New Board and (y) the President and Chief Executive Officer of the Company as of immediately prior to the Effective Time shall be appointed to serve as Vice Chairman of the New Board. If, prior to after the Effective Time, any the Board of Directors of Parent Designee concludes, after reasonable inquiry, that the majority of the directors are not “independent” as defined or construed in accordance with the Exchange Rules, then such Board of Directors shall be expanded to consist of nine (9) directors, and, subject to approval of Parent’s Board of Directors (which approval shall not be unreasonably withheld or delayed), the additional director shall be Xxxx Xxxxxxxxxx, or if such person is unwilling or unable to serve (or to continue to serve) as a director on the New Board following the Effective Time as a result of illnessis not approved by Parent’s Board, death, resignation or any such other reason, then any replacement for such individual person who shall be selected independent and jointly nominated by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Parent Board as of the date of this Agreement, Nominees and such replacement shall constitute a Parent Designee for all purposes under this Agreement. If, prior to the Effective Time, any Company Designee is unwilling or unable to serve as a director on the New Board following the Effective Time as a result of illness, death, resignation or any other reason, then any replacement for such individual shall be selected by the mutual agreement of the individuals to be appointed as the Chairman and the Vice Chairman of the New Board from the individuals who are members of the Company Board as of the date of this Agreement and such replacement shall constitute a Company Designee for all purposes under this Agreement. At least five of the Parent Designees and at least four of the Company Designees shall meet the independence standards of the Nasdaq as may be applicable with respect to Parent as of the Effective TimeNominees.