Common use of Board of Directors of the Company Clause in Contracts

Board of Directors of the Company. (a) At the Effective Date, the Board of Directors shall be composed of eight members. CDP (or any representative thereof designated by CDP) shall be entitled, but not required, to nominate five members to the Board of Directors (collectively, the “CDP Designees”), and DHW (or any representative thereof designated by DHW) shall be entitled, but not required, to nominate two members to the Board of Directors (collectively, the “DHW Designees”). (b) DHW and CDP shall vote all of the Shares owned or held of record by them at all regular and special meetings of the shareholders of the Company called or held for the purpose of electing directors or filling positions on the Board of Directors, and in each written consent executed in lieu of such a meeting of shareholders, and, to the extent entitled to vote thereon, each party hereto shall take all actions otherwise necessary, including attending shareholder meetings in person or by proxy for purposes of obtaining a quorum, to ensure (to the extent within the parties’ collective control) that the CDP Designees and the DHW Designees are elected to the Board of Directors at any such meetings of the shareholders of the Company. (c) The initial CDP Designees to be elected at the 2011 annual meeting of the Company shall be Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxxx and the DHW Designees that shall continue on the Board of Directors and be nominated for election at such meeting are Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx. (d) CDP shall be entitled to nominate an individual to fill any vacancy on the Board of Directors caused by the resignation, death or removal of a CDP Designee. DHW shall be entitled to nominate an individual to fill any vacancy on the Board of Directors caused by the resignation, death or removal of a DHW Designee. Neither CDP nor DHW shall unreasonably object to the other’s designees to the Board of Directors. The full Board of Directors shall fill any vacancy on the Board of Directors caused by the resignation, death or removal or a member of the Board of Directors. (e) At the Effective Date, all currently existing committees of the Board of Directors, and any newly-created committees of the Board of Directors, shall have at least one of its members be a CDP Designee and at least one of its members be a DHW Designee. The director removal and vacancy nominating provision set forth above for the Board of Directors shall apply to any committee of the Board of Directors. Neither CDP nor DHW shall unreasonably object to the other’s designees to any committee of the Board of Directors.

Board of Directors of the Company. (ai) At The Company shall be managed by a board of directors (the Effective Date"Board of Directors") initially comprised of six (6) directors (each, a "Director") and proportionately reflecting the respective Interests. Three (3) of the initial Directors shall be nominated by GCT, one (1) of the initial Directors shall be nominated by SCS and two (2) of the initial Directors shall be nominated by Marubeni. In the event the respective Interests of the Shareholders change, including as a result of the provisions of Section 2.8(j) or 11.2(b) or of the admission of additional Shareholders as Shareholders of the Company, representation on the Board of Directors (and, if necessary, the size of the Board of Directors) shall be appropriately adjusted so that the Shareholders shall have representation on the Board of Directors approximately proportional to their respective ownership of outstanding Common Shares. Directors nominated by a Shareholder shall be referred to as such Shareholder's "Director Designees". (ii) Each of the Shareholders hereby agrees to vote in favor of, and to cause its Director Designees to vote in favor of, the Director Designees of each other Shareholder for positions on the Board of Directors. The Director Designees of GCT shall initially be: Xxxxx Xxx, Xxxxxxx Xxxxxx and Xxxx Xxxxxxx. The Director Designee of KDD-SCS shall initially be: Xxxxxxxx Xxxxx. The Director Designees of Marubeni shall initially be: Xxxxx Xxxxxx and Xxxxx Xxxxx. Each Shareholder agrees not to take, and shall cause its Director Designees not to take, any action to remove a Director Designee other than in accordance with the following sentence (or in accordance with Section 3.1(a)(i) as a result of a change in the respective Interests). As soon as practicable after receipt of a written request from a Shareholder to remove a Director Designee of such Shareholder, the other Shareholders agree to take, or cause to be taken by their Director Designees, all appropriate action to effect the removal of such Director Designee. Upon the removal, resignation or death of a Director Designee, the Shareholder nominating such Director Designee shall designate a replacement Director Designee, and the other Shareholders agree to take, or cause to be taken by their respective Director Designees, as soon as practicable after receipt of such designation, all appropriate action to effect the election of such replacement Director Designee. (iii) Each Shareholder shall vote against or withhold consent from any proposal to amend the Company's Memorandum of Association or Bye-laws to change the composition or character of the Board of Directors as set forth in this Section 3.1, except to reflect the respective proportionate Interests. (iv) Each Shareholder agrees to vote or give written consent, or to cause its Director Designees to vote or give written consent, for the election of the person designated by GCT as Chairman of the Board of Directors of the Company (the "Chairman of the Board") so long as GCT owns more Common Shares than any other Shareholder and has not been a Defaulting Shareholder. Each Shareholder agrees to vote or give written consent, or to cause its Director Designees to vote or give written consent, for the election of the person designated by Marubeni, as Deputy Chairman of the Board of Directors of the Company (the "Deputy Chairman") so long as Marubeni is the second largest Shareholder of the Company and has not been a Defaulting Shareholder. Each Shareholder agrees not to take, and shall cause its Director Designees not to take, any action to remove either such persons as Chairman or Deputy Chairman of the Board of Directors of the Company during such period. The Chairman of the Board shall preside over meetings of the Board of Directors but shall otherwise have no additional voting or other rights in his capacity as such, including in connection with any matters submitted to or voted upon by the Board of Directors. In the absence of the Director then serving as Chairman of the Board at any meeting of the Board of Directors, (A) the Chairman of the Board for such meeting shall be the Director serving as Deputy Chairman (or, in his absence, another Director nominated by the Shareholder which nominated the Director then serving as Chairman of the Board), and (B) the Board of Directors may continue to act in accordance with the terms of this Agreement. (v) Each Director shall serve for a term of the duration set forth in the Bye-Laws or, if earlier, until the date of resignation or removal of such Director or the date upon which the Shareholder that nominated such Director ceases to be a Shareholder (or reduces its interest such that it is no longer entitled to the same number of Director Designees and chooses to remove such Director Designee as a result); provided that, in the event that a Director resigns or is removed prior to the end of the scheduled term of such outgoing Director, the initial term for any Director which replaces such outgoing Director on the Board of Directors shall be composed the remaining scheduled term of eight members. CDP (or any representative thereof designated by CDP) shall be entitled, but not required, to nominate five members to the Board of Directors (collectively, the “CDP Designees”), and DHW (or any representative thereof designated by DHW) shall be entitled, but not required, to nominate two members to the Board of Directors (collectively, the “DHW Designees”)such outgoing Director. (bvi) DHW and CDP shall vote all of the Shares owned or held of record Any Director may resign by them at all regular and special meetings of the shareholders of the Company called or held for the purpose of electing directors or filling positions on the Board of Directors, and giving notice in each written consent executed in lieu of such a meeting of shareholders, and, writing to the extent entitled to vote thereon, each party hereto shall take all actions otherwise necessary, including attending shareholder meetings in person or by proxy for purposes of obtaining a quorum, to ensure (to the extent within the parties’ collective control) that the CDP Designees and the DHW Designees are elected to the Board of Directors at any such meetings of the shareholders of the Company. (c) The initial CDP Designees to be elected Secretary at the 2011 annual meeting of the Company shall be Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx and Xxxxxxx X. Xxxxxxxxx and the DHW Designees that shall continue on the Board of Directors and be nominated for election at such meeting are Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx. (d) CDP shall be entitled to nominate an individual to fill any vacancy on the Board of Directors caused by the resignation, death or removal of a CDP Designee. DHW shall be entitled to nominate an individual to fill any vacancy on the Board of Directors caused by the resignation, death or removal of a DHW Designee. Neither CDP nor DHW shall unreasonably object to the other’s designees to the Board of DirectorsRegistered Office. The full Board of Directors shall fill any vacancy on Secretary will give written notice to all the Board of Directors caused by the resignation, death or removal or a member of the Board of DirectorsShareholders. (e) At the Effective Date, all currently existing committees of the Board of Directors, and any newly-created committees of the Board of Directors, shall have at least one of its members be a CDP Designee and at least one of its members be a DHW Designee. The director removal and vacancy nominating provision set forth above for the Board of Directors shall apply to any committee of the Board of Directors. Neither CDP nor DHW shall unreasonably object to the other’s designees to any committee of the Board of Directors.

Board of Directors of the Company. (a) At such time as, and for so long as, a Purchaser meets the Effective Date, the Board of Directors shall be composed of eight members. CDP (or any representative thereof designated by CDP) shall be entitled, but not required, to nominate five members to the Board of Directors (collectively, the “CDP Designees”criteria set forth in Section 9.3(d), and DHW each Purchaser shall have the right to designate one individual (or any representative thereof designated by DHWa "Director Designee") shall to be entitled, but not required, nominated to nominate two members to the Board of Directors (collectively, the “DHW Designees”). (b) DHW and CDP shall vote all of the Shares owned or held of record by them at all regular and special meetings of the shareholders of the Company called or held for the purpose of electing directors or filling positions serve on the Company's Board of Directors, and in each written consent executed in lieu of such a meeting of shareholders, and, (subject to the extent entitled immediately following sentence) the Company shall so nominate such Director Designee and shall use all reasonable efforts to vote thereon, each party hereto shall take all actions otherwise necessary, including attending shareholder meetings in person or by proxy for purposes of obtaining a quorum, cause such Director Designee to ensure (to the extent within the parties’ collective control) that the CDP Designees and the DHW Designees are be elected to the Board of Directors at any Directors; PROVIDED, HOWEVER, that no transfer or series of transfers of Common Stock by a Purchaser shall entitle such meetings Purchaser and/or its direct or indirect transferees to designate more than one Director Designee, and PROVIDED FURTHER that Olympus I and Olympus II shall be construed as a single Purchaser for purposes of this Section 9.3. A condition to the shareholders qualification of the Company. (c) The initial CDP Designees a Purchaser's Director Designee to be elected at the 2011 annual meeting serve as a director of the Company pursuant to this Section shall be Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxx the Director Designee's agreement to resign if the Purchaser who designated such person owns less than the number of shares of Common Stock and Xxxxxxx X. Xxxxxxxxx and the DHW Designees that shall continue on the Board of Directors and be nominated for election at such meeting are Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxx. (d) CDP shall be entitled to nominate an individual to fill any Common Stock equivalents required by this Section. Any vacancy on in the Board of Directors caused by the resignationdeath, death disability, resignation or removal of a CDP Designee. DHW director who was a Director Designee shall be filled by another Director Designee designated by such Purchaser, subject only to such Purchaser's continued compliance with the criteria set forth in Section 9.3(d). For so long as a Purchaser is entitled to nominate designate a Director Designee hereunder, the Corporation shall not form an individual Executive Committee, or any committee to fill any vacancy on which the power of the Board of Directors caused is delegated between meetings of the Board of Directors (to the extent permitted by law), unless either the resignationDirector Designee of such Purchaser or the Director Designee of another Purchaser shall be a member of such committee of the Board of Directors. For so long as (i) a Purchaser is entitled to designate a Director Designee hereunder and (ii) such Purchaser beneficially owns an amount of Senior Securities and/or Regular Common Stock (inclusive of shares purchasable under Series B Warrants), death or removal such that the sum of (x) the original purchase price (under this Agreement) of the Senior Securities so held divided by $4.81 plus (y) the number of shares of Regular Common Stock so held (inclusive of shares such Purchaser would receive upon exercise of any Series B Warrant then held by it), is not less than 1,040,000, the Company shall not, without the consent of a DHW Designee. Neither CDP nor DHW majority in interest of those Purchasers entitled to designate a Director Designee (determined in accordance with the foregoing sum), appoint either an Audit Committee or a Compensation Committee of the Board of Directors unless either the Director Designee of such Purchaser or the Director Designee of another Purchaser shall unreasonably object to the other’s designees to be a member of such committee of the Board of Directors. The full Board Company will use its best efforts to maintain directors' and officers' liability insurance covering the Director Designee of Directors a Purchaser. The Company shall fill reimburse such Director Designee for any vacancy reasonable out-of-pocket expenses incurred in connection with his or her position on the Board of Directors caused by the resignation, death or removal or a member of the Board of Directors. (eb) At If Section 9.3(a) is not applicable because the Effective DatePurchaser owns less than the minimum number of shares of Common Stock or Common Stock equivalents required under Section 9.3(d)(iv), the Purchaser shall have the right to designate one advisory director or observer to the Company's Board of Directors if the sum of the amounts set forth in clauses (i), (ii) and (iii) of this sentence is not less than 1,040,000: (i) an amount equal to the product obtained by multiplying 20.8 by the aggregate number of shares of Series A Capital Securities and Series B Preferred Stock then owned by the Purchaser, (ii) an amount equal to the aggregate number of shares of one or more classes of Common Stock then owned by the Purchaser, and (iii) an amount equal to the aggregate number of shares of Common Stock that would be received upon the exercise of any Warrant then owned by the Purchaser. The advisory director or observer shall have the right to attend all currently existing committees meetings of the Company's Board of Directors and receive copies of all resolutions enacted by the Company's Board of Directors or any Executive Committee thereof, and (unless the Director Designee of a Purchaser already sits on such committee) one of the advisory directors designated by the Purchasers shall have the right to attend all meetings of any Executive Committee of the Board of Directors (or other committee to which the power of the Board of Directors is delegated between meetings of the Board of Directors). (c) For so long as any Purchaser is entitled to designate a Director Designee, (i) the Company shall not, without the consent of all Purchasers then having such right, expand its Board of Directors to consist of more than twelve (12) directors, and any newly-created committees of (ii) the Board of Directors, Company shall use all reasonable efforts to have at least one two directors who neither were investors (or Affiliates of investors) in DCG as of November 30, 1996 nor are affiliated at such time with any Purchaser that is then entitled to designate a Director Designee. (d) A Purchaser shall be eligible to designate a Director Designee in accordance with Section 9.3(a) if, at such time as the Purchaser first seeks to designate a director, the Purchaser provides the Company with reasonable evidence satisfactory to the Company and its members counsel (which evidence may include discussions with the FRB, if the Purchaser or the Company reasonably deems such discussions to be a CDP Designee necessary to clarify then-existing statutes, regulations or published policy guidelines) that such Purchaser: (i) owns less than 10.0% of the Common Stock of the Company then outstanding and at least one entitled to vote in elections of directors; (ii) owns equity securities of the Company constituting less than 15.0% of the Company's shareholders' equity as of the most recent month end preceding such date, allocating to any series of Preferred Securities held by such Purchaser the Liquidation Value thereof (as defined in the Amended and Restated Charter or Trust Agreement, as applicable) and allocating to the Common Stock held by such Purchaser its members be a DHW Designee. The director removal and vacancy nominating provision set forth above pro rata share of the Company's equity available for the Board holders of Directors shall apply Common Stock; (iii) does not then own or have a potential ability, under the express terms of Common Stock or other Company securities that the Purchaser then owns, to acquire Common Stock or other Company securities that, currently or upon the occurrence of any committee subsequent event, are or may become convertible into or exchangeable or exercisable for Common Stock, which in the aggregate could represent 25.0% or more of the Board Common Stock outstanding on a pro forma basis; and (iv) (x) in the case of Directors. Neither CDP nor DHW shall unreasonably object to MDP or Olympus, owns NOT less than 520,000 shares of one or more classes of Common Stock, and (y) in the other’s designees to case of any committee permitted assignee of MDP or Olympus, owns NOT less than 1,040,000 shares of one or more classes of Common Stock, including for purposes of this Section 9.3(d) shares of Common Stock that would be received upon the Board exercise of Directorsany Warrant then owned by the Purchaser.