Common use of Board of Directors Representation Clause in Contracts

Board of Directors Representation. (a) Effective upon the acceptance for payment of, and payment for, any Shares pursuant to the Offer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Merger Subsidiary, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this section) and (ii) a fraction, the numerator of which shall be the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment and for which payment has been made) and the denominator of which shall be the number of Shares then outstanding. The Company shall, upon request of Parent, take all reasonable actions to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including without limitation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. At such time, the Company shall, if requested by Parent, also take all action reasonably necessary to cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. At the request of Parent, the Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14(f)-1 of the Exchange Act in order to fulfill its obligations under this Section 2.03 and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its shareholders all necessary information to comply therewith. Parent and Merger Subsidiary will supply to the Company, and will be solely responsible for, all information with respect to themselves and their officers, directors and affiliates required by such Section and such Rule. (b) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the parties shall use their respective reasonable best efforts to ensure that the Company's Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company (the "CONTINUING DIRECTORS"); PROVIDED that in the event that the number of the Continuing Directors shall be reduced below two for any reason whatsoever, any remaining Continuing Directors (or Continuing Director, if there shall be only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Continuing Directors for purposes of this Agreement. The approval of a majority of the directors of the Company then in office who were not designated by Parent shall be required to authorize (i) any termination of this Agreement by the Company, (ii) any amendment of this Agreement or the Support Agreement, (iii) any extension of time for performance of any obligation of or action by Parent or Merger Subsidiary hereunder, (iv) any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company or (v) any amendment to the Company's articles of incorporation or by- laws that adversely affects the shareholders of the Company.

Board of Directors Representation. (a) Effective upon as of the acceptance for payment ofdate hereof, the Stockholders and payment for, any Shares pursuant the Company shall use their reasonable best efforts to the Offer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on cause the Board of Directors to be comprised of five directors of whom: (i) two shall be designated by POI Acquisition (the “Acquisition Designees”); (ii) one shall be designated by QDRF (the “QDRF Designee”); (iii) one shall be Xxxxxxx Xxxxxxxx, president and chief executive officer of the Company as will give Merger Subsidiary, subject to compliance with Section 14(fCompany; and (iv) one shall be an Independent Person selected by a majority of the Exchange Actother directors. (b) At such time as POI Acquisition shall cease to own Common Shares in an amount equal to at least 25% of the Common Shares issued and outstanding as of the Closing, representation on POI Acquisition shall have the right to designate one Acquisition Designee rather than two Acquisition Designees pursuant to Section 2.1(a) above. At such time as POI Acquisition shall cease to own Common Shares in an amount equal to at least 10% of the Common Shares issued and outstanding as of the Closing, POI Acquisition shall cease to have the right to designate a director to the Board of Directors pursuant to Section 2.1(a) above. Upon each of the Company equal triggering events set forth in this Section 2.1(b) above, POI Acquisition shall promptly cause one of its Acquisition Designees to at least that number of directors which equals the product of (i) the total number of directors on resign from the Board of Directors (giving effect to the election of and all committees thereof. Upon any additional directors pursuant to this section) and (ii) a fractionsuch resignation, the numerator of which shall be the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment and for which payment has been made) and the denominator of which shall be the number of Shares then outstanding. The Company shall, upon request of Parent, take all Stockholders will use their reasonable actions best efforts to cause Parent's designees the directors remaining in office to be elected or appointed to the Company's Board of Directors, including without limitation, increasing either decrease the size of the Board of Directors and/or securing to eliminate such vacancy or cause the resignations vacancy created thereby to be filled by a designee selected by a majority of incumbent directorsthe directors remaining in office. (c) At such time as QDRF shall cease to own Common Shares in an amount equal to at least 10% of the Common Shares issued and outstanding as of the Closing, QDRF shall cease to have the right to designate a director to the Board of Directors pursuant to Section 2.1(a) above and QDRF shall promptly cause its QDRF Designee to resign from the Board of Directors and all committees thereof. Upon any such resignation, the Stockholders will use their reasonable best efforts to cause the directors remaining in office to either decrease the size of the Board of Directors to eliminate such vacancy or cause the vacancy created thereby to be filled by a designee selected by a majority of the directors remaining in office. (d) At such time as Xx. Xxxxxxxx ceases to be the chief executive officer of the Company, he shall no longer be entitled to serve as a director pursuant to Section 2.1(a) above. Upon any such resignation, the Stockholders will use their reasonable best efforts to cause the directors remaining in office to either decrease the size of the Board of Directors to eliminate such vacancy or cause the vacancy created thereby to be filled by a designee selected by a majority of the directors remaining in office. (e) Each Stockholder agrees to vote, or act by written consent with respect to, any Common Shares owned directly or indirectly by it, at each annual or special meeting of stockholders of the Company at which directors are to be elected or to take all actions by written consent in lieu of any such meeting as are necessary, and the Company shall use its reasonable best efforts to take all appropriate actions as are necessary, to cause the Board of Directors to be comprised of the number and type of directors specified in Section 2.1(a). In conjunction with a Listing Event and effective immediately prior to the consummation thereof, the Stockholders and the Company shall take all action necessary and appropriate to reconstitute the size and composition of the Board of Directors in accordance with the listing rules of the applicable securities exchange; provided, however, that in the case of any such reconstitution of the Board of Directors, POI Acquisition shall remain entitled pursuant to Section 2.1(a) to designate the Acquisition Designees (subject to Section 2.1(b)), QDRF shall remain entitled to designate the QDRF Designee (subject to Section 2.1(c)) and Xx. Xxxxxxxx shall remain entitled to serve as a director (subject to Section 2.1(d)). (f) Until such time as POI Acquisition ceases to own Common Shares in an amount equal to at least 40% of the Common Shares issued and outstanding as of the Closing, POI Acquisition shall have the right, exercisable at any time upon delivery of written notice to QDRF and the Company, to elect to cause the Board of Directors to be increased to include one additional director and designate a new director (the “Acquisition Election”). Upon making the Acquisition Election, the Stockholders (and their respective Stockholder Designees) and the Company shall use their reasonable best efforts to take all appropriate action to cause the size of the Board of Directors to be increased to include a director designated by POI Acquisition. Upon making the Acquisition Election, (i) the number of Acquisition Designees set forth in Section 2.1(a)(i) shall be increased by one and (ii) at such time as POI Acquisition shall cease to own Common Shares in an amount equal to at least 40% of the Common Shares issued and outstanding as of the Closing, POI Acquisition shall promptly cause one of its Acquisition Designees to resign from the Board of Directors and all committees thereof. Upon any such resignation, the Stockholders will use their reasonable best efforts to cause the directors remaining in office to either decrease the size of the Board of Directors to eliminate such vacancy or cause the vacancy created thereby to be filled by a designee selected by a majority of the directors remaining in office. (g) If any Stockholder entitled to designate directors hereunder requests in writing that any of its designees be removed as a director, the other Stockholder shall vote, or act by written consent with respect to, all Common Shares owned directly or indirectly by such other Stockholder and otherwise take or cause to be taken all actions necessary to remove such director designated by such Stockholder. Unless a Stockholder shall otherwise request in writing, no other Stockholder shall take any action to cause the removal of any directors designated by such Stockholder. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any director designated by a Stockholder, so long as such Stockholder has the right to designate a replacement designee at such time, the Company shall, if requested by Parent, also take all action reasonably necessary to cause persons designated by Parent to constitute at least and the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. At the request of Parent, the Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14(f)-1 of the Exchange Act in order to fulfill its obligations under this Section 2.03 and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its shareholders all necessary information to comply therewith. Parent and Merger Subsidiary will supply to the Company, and will be solely responsible for, all information with respect to themselves and their officers, directors and affiliates required by such Section and such Rule. (b) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the parties other Stockholder shall use their respective reasonable best efforts to ensure that take all appropriate action necessary to cause the Company's Board of Directors shall have at least two directors who are directors on vacancy created thereby to be filled by the date of this Agreement and who are not officers of the Company replacement designated by such Stockholder. (the "CONTINUING DIRECTORS"); PROVIDED that in the event that the number of the Continuing Directors shall be reduced below two for any reason whatsoever, any remaining Continuing Directors (or Continuing Director, if there shall be only one remainingh) QDRF shall be entitled to designate persons an employee, director or officer of QDRF or its Affiliates to fill such vacancies who serve as a nonvoting observer to the Board of Directors (an “Observer”) at any time that QDRF owns at least 5% of the outstanding Common Shares. The Observer shall be deemed permitted to be Continuing Directors for purposes attend all meetings of this Agreementthe Board of Directors. The approval Company shall provide the Observer, in the same manner as provided to directors, notice of a majority such meetings and copies of all materials, financial or otherwise, which the Company provides to its directors; provided, however, that the Company may exclude the Observer from access to any materials or from any meeting, or any portion of the directors of foregoing, if the Company then in office who were not designated by Parent shall be required reasonably believes upon advice of counsel that such exclusion is reasonably necessary to authorize preserve the attorney-client privilege, to protect confidential or proprietary information or for other similar reasons. (i) any termination The Company shall reimburse each Stockholder Designee and each Observer for their reasonable out-of-pocket expenses incurred by them for the purpose of this Agreement by attending meetings of the CompanyBoard of Directors, (ii) any amendment the board of this Agreement or the Support Agreement, (iii) any extension of time for performance directors of any obligation of or action by Parent or Merger Subsidiary hereunder, (iv) any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company or (v) any amendment to the Company's articles of incorporation or by- laws that adversely affects the shareholders of the Companyrespective committees thereof.

Board of Directors Representation. (a) Effective Subject to compliance with Section 14(f) of the Exchange Act and Rule 14(f)-1 thereunder, effective upon the acceptance for payment of, and payment for, any Shares pursuant to shares of Company Common Stock tendered in the Offer, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Merger Subsidiary, subject to compliance with Section 14(f) of the Exchange Act, Parent representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this section) and (ii) a fraction, the numerator of which shall be the number of Shares shares of Company Common Stock beneficially owned by Parent and/or Merger Acquisition Subsidiary (including Shares Company Common Stock accepted for payment and for which payment has been mademade pursuant to the Offer or purchased and paid for under the Stockholder Agreement) and the denominator of which shall be the number of Shares shares of Company Common Stock then outstanding. The Company shall, upon request of Parent, take all reasonable actions to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including without limitation, increasing the size of the Board of Directors of the Company and/or securing the resignations of incumbent directors. At such time, the Company shall, if requested by Parent, also take all action reasonably necessary to cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. At the request of Parent, the Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14(f)-1 of the Exchange Act in order to fulfill its obligations under this Section 2.03 and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its shareholders all necessary information to comply therewith. Parent and Merger Acquisition Subsidiary will supply to the Company, and will be solely responsible for, all information with respect to themselves and themselves, their officers, directors and affiliates and their designees to the Board of Directors of the Company required by such pursuant to Section 14(f) and such RuleRule 14(f)-1 of the Exchange Act. (b) Following the election or appointment of Parent's designees pursuant to Section 2.03(a1.3(a) and until the Effective Time, the parties shall use their respective reasonable best efforts to ensure that the Company's Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company or affiliates of Parent (the "CONTINUING DIRECTORSContinuing Directors"); PROVIDED provided that in the event that the number of the Continuing Directors shall be reduced below two for any reason whatsoever, any remaining Continuing Directors (or the single Continuing Director, if there shall be only one remaining) shall be entitled to designate persons a person who is not an officer of the Company or an affiliate of Parent or Acquisition Subsidiary to fill such vacancies and who shall be deemed to be Continuing Directors for purposes of this Agreement. The Following the election or appointment of Parent's designees pursuant to Section 1.3(a) and until the Effective Time, the approval of a majority of the directors of the Company then in office who were not designated by Parent Continuing Directors shall be required to authorize (i) any termination of this Agreement by the Company, (ii) any amendment of this Agreement or the Support Agreement, (iii) any extension of time for performance of any obligation of or action by Parent or Merger Acquisition Subsidiary hereunder, (iv) any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company Company, or (v) any amendment to the Company's articles of incorporation or by- by-laws that adversely affects the any shareholders of the Company.

Board of Directors Representation. (a) Effective upon the acceptance for payment of, and payment for, any Shares pursuant to the Offer, Parent The Board of Directors shall initially be comprised of eight directors of whom: (i) five shall be entitled designated by the KKR Group (the "KKR Designees"), with each of KKR 1996, KKR Millennium and KKR European having the right to separately designate not less than one such director; (ii) two shall be designated by the DLJ Group (the "DLJ Designees") for so long as the DLJ Group owns at least 10% of the outstanding Common Shares (subject to Section 2.5); and (iii) one director shall be the Chief Executive Officer of the Company in office from time to time (the "CEO Designee"). (b) Each DLJ Designee shall be an employee, director or officer of DLJ Merchant Banking III, Inc. or its Affiliates or a consultant to DLJ Merchant Banking III, Inc. or its Affiliates who is not a consultant to any other financial sponsor and who spends substantially all of his or her time consulting for DLJ Merchant Banking III, Inc. and its Affiliates (Xxxxx Xxxxxxxx and Xxxx Xxxxx to serve as the initial DLJ Designees). The DLJ Group shall not designate any other DLJ Designee without the prior written approval of such designee by the KKR Group, which approval shall not be unreasonably withheld. Subject to Section 2.5, at such time as the DLJ Group shall cease to own at least 10% of the outstanding Common Shares the DLJ Group shall cease to have the right to designate such number of directors, rounded up any directors to the next whole number, to serve on the Board of Directors or the board of directors of any Subsidiary of the Company as will give Merger Subsidiary, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this section) and (ii) a fraction, the numerator of which shall be the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment and for which payment has been made) and the denominator of which DLJ Group shall be promptly cause all DLJ Designees to resign from the number of Shares then outstanding. The Company shall, upon request of Parent, take all reasonable actions to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including without limitationall committees thereof and the boards of directors of all subsidiaries of the Company and all committees thereof. Upon any such resignation, increasing the directors remaining in office shall either decrease the size of the Board of Directors and/or securing to eliminate such vacancy or cause the resignations vacancy created thereby to be filled by a designee selected by a majority of incumbent directorsthe directors remaining in office. (c) The CEO Designee shall serve as the chairman of the Board of Directors. (d) Each Stockholder agrees to vote, or act by written consent with respect to, any Common Shares owned by it, at each annual or special meeting of stockholders of the Company at which directors are to be elected or to take all actions by written consent in lieu of any such meeting as are necessary, and the Company shall take all actions as are necessary, to cause the Board of Directors to be comprised of the number and type of directors specified in Section 2.1(a). At Notwithstanding the foregoing or anything to the contrary in this Agreement, in conjunction with an Initial Public Offering and effective as of the consummation thereof, the Stockholders and the Company shall take all action necessary to reconstitute the size and composition of the Board of Directors in accordance with the recommendation of the Board of Directors subject to compliance with applicable law and the listing rules of the applicable securities exchange; provided, however, that in the case of any such reconstitution of the Board of Directors, the DLJ Group shall be entitled to appoint one DLJ Designee to the Board of Directors for so long as the DLJ Group owns at least 10% of the outstanding Common Shares (after giving effect to the Initial Public Offering). (e) If any member of a Stockholder Group entitled to designate directors hereunder requests in writing that any of its designees be removed as a director, the other members of such Stockholder Group and the other Stockholder Group shall vote, or act by written consent with respect to, all Common Shares owned by such other members and such other Stockholder Group and otherwise take or cause to be taken all actions necessary to remove such director designated by such member of a Stockholder Group. Unless a member of a Stockholder Group shall otherwise request in writing, neither the Company nor the other members of such Stockholder Group nor the other Stockholder Group shall take any action to cause the removal of any directors designated by such member of a Stockholder Group. In the event that a vacancy is created at any time by the death, disability, retirement, resignation (other than pursuant to the last sentence of Section 2.1(b)) or removal (with or without cause) of any director designated by a member of a Stockholder Group, so long as such member and such Stockholder Group have the right to designate a replacement designee at such time, the Company shall, if requested by Parent, also and the other members of such Stockholder Group and the other Stockholders Group shall take all action reasonably necessary to cause persons the vacancy created thereby to be filled by the replacement designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board such member of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. At the request of Parent, the Company shall take, at its expense, all action required pursuant to Section 14(f) and Rule 14(f)-1 of the Exchange Act in order to fulfill its obligations under this Section 2.03 and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its shareholders all necessary information to comply therewith. Parent and Merger Subsidiary will supply to the Company, and will be solely responsible for, all information with respect to themselves and their officers, directors and affiliates required by such Section and such Rulea Stockholder Group. (bf) Following the election or appointment of Parent's designees pursuant to Section 2.03(a) and until the Effective Time, the parties shall use their respective reasonable best efforts to ensure that the Company's Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers of the Company (the "CONTINUING DIRECTORS"); PROVIDED that in In the event that the number KKR Group shall have a designee serving on the board of directors of any direct or indirect Subsidiary of the Continuing Directors shall be reduced below two for any reason whatsoever, any remaining Continuing Directors (or Continuing DirectorCompany, if there and for so long as the DLJ Group has the right to designate a director to the Board of Directors pursuant to this Section 2.1, the DLJ Group shall be only have the right to designate one remainingof the DLJ Designees to such board of directors. (g) In the event the DLJ Group is not entitled to designate any directors to the Board of Directors pursuant to this Section 2.1, the DLJ Group shall be entitled to designate persons an employee, director or officer of DLJ Merchant Banking III, Inc. or its Affiliates to fill serve as a nonvoting observer to the Board of Directors and any committee of the Board of Directors (an "Observer") at any time that the DLJ Group owns at least 1% of the outstanding Common Shares. The DLJ Group shall not designate an Observer without the prior written approval of such vacancies who designee by the KKR Group, which approval shall not be unreasonably withheld. The Observer shall be deemed permitted to be Continuing attend all meetings of the Board of Directors for purposes of this Agreementand the committees thereof. The approval Company shall provide the Observer, in the same manner as provided to directors, notice of a majority such meetings and copies of all materials, financial or otherwise, which the Company provides to its directors; provided, however, that the Company may exclude the Observer from access to any materials or from any meeting, or any portion of the foregoing, if the Company reasonably believes upon advice of counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect confidential or proprietary information or for other similar reasons. DLJ's rights under this Section 2.1(g) shall terminate upon the consummation of an Initial Public Offering. (h) The Company shall reimburse each Stockholder Designee and each Observer for their reasonable out-of-pocket expenses incurred by them for the purpose of attending meetings of the Board of Directors, the board of directors of the Company then in office who were not designated by Parent shall be required to authorize (i) any termination of this Agreement by the Company, (ii) any amendment of this Agreement or the Support Agreement, (iii) any extension of time for performance of any obligation of or action by Parent or Merger Subsidiary hereunder, (iv) any enforcement of or any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company or (v) any amendment to the Company's articles of incorporation or by- laws that adversely affects the shareholders of the Companyrespective committees thereof.