Common use of Composition of Board of Directors Clause in Contracts

Composition of Board of Directors. (a) Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at On the Closing Datedate hereof, there shall be six (6) vacancies the Board of Directors has, pursuant to the powers granted to it under the Bylaws, increased the size of the Board of Directors by one and elected the BVF Designee to fill the vacancy so created on the Board of Directors by: Directors, to serve in such capacity from the date hereof through the earlier of (i) an increase in the 2003 Annual Meeting, and until his successor shall have been duly appointed and qualified, or (ii) the Director Termination Date. The BVF Designee also has been appointed by the Board of Directors to include eight serve on the Nominating Committee and the Corporate Governance Committee. (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at b) Until the Closing Director Termination Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark shall, at each meeting of stockholders of the Company at which the term of the BVF Designee is scheduled to fill expire, nominate the six vacancies created BVF Designee to stand for election as a director of the Company for a succeeding term in accordance with subsections the Company's procedures for nomination of directors as provided for in its Bylaws, for election, recommend such election and solicit proxies in respect thereof and vote the shares of Common Stock represented by all proxies granted by stockholders in connection with the solicitation of proxies by the Board of Directors in connection with such meeting in favor of the BVF Designee, except for such proxies that specifically indicate a vote to withhold authority with respect to the BVF Designee. (ic) and Until the Director Termination Date, but subject to the provisions of paragraph (iie) of this Section 2.01(a)2.01, the Board of Directors shall cause any vacancy created on the Board of Directors by reason of the death, resignation or removal of the then serving BVF Designee to serve from be filled by the Closing Date until successor BVF Designee named by the end of their respective termsStockholders. (bd) Thereafter, each of While serving on the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and any committee thereof, the BVF Designee shall be entitled to take such action as may all the rights and privileges and subject to all the obligations of the other directors and committee members; provided that the BVF Designee shall not be necessary entitled to cause (i) participate in or observe, and shall upon the good faith request of the Board of Directors or any such committee recuse himself from, any meeting or portion thereof at which the Board of Directors or any such committee is evaluating and/or taking action with respect to nominate (x) the ownership of Voting Securities by any member of the Restricted Group, (y) the exercise of any of the Company's rights or enforcement of any of the obligations of any member of the Restricted Group under this Stockholders Agreement (including, without limitation, the exercise by the Company of its right to purchase Common Stock of the Restricted Group pursuant to Article VI) or (z) any transaction proposed by, or with, any member of the Restricted Group; or (ii) receive any compensation payable to directors for service on the Board of Directors and/or any committee thereof, including the grant or award of any Equity Securities; provided that the BVF Designee shall be entitled to reimbursement of reasonable travel expenses and recommend coverage under the Company's directors' and officers' insurance policy to the stockholders of same extent provided generally to the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders who are not also officers of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraphthe Company's policies. The Board of Directors or any such committee shall be entitled to take such actions as it shall deem reasonably necessary or appropriate to carry out the provisions of the preceding sentence. (e) The Stockholders shall use reasonable best efforts to insure that the BVF Designee shall at all times be an Independent Director. If (x) the BVF Designee shall not meet the definition of an Independent Director hereunder and (y) the Board of Directors does not at the time, or will not within thirty (30) days, satisfy the listing requirements of the principal stock exchange or securities market on which the Common Stock is then listed or traded because the Board of Directors does not consist of a majority of Independent Directors, written notice of such determination shall be given to BVF, which shall during the thirty (30) day period following such notification name a new BVF Designee who BVF in good faith believes would qualify as an Independent Director; provided that BVF shall be deemed not to have acted in good faith for this purpose if, among other reasons, the proposed successor BVF Designee (i) has not agreed to serve as the BVF Designee or (ii) does not qualify as an Independent Director for a similar reason that the incumbent BVF Designee fails to qualify as an Independent Director. If the Stockholders and the Board of Directors agree on a successor BVF Designee in accordance with the preceding sentence, the Stockholders shall cause the incumbent BVF Designee to resign from the Board of Directors and the successor BVF Designee shall be elected to the Board of Directors in accordance with paragraph (c) Notwithstanding of this Section 2.01. If the foregoingBoard of Directors determines that the successor BVF Designee proposed by BVF in good faith does not qualify as an Independent Director, each Investor the Board of Directors shall cease be entitled to increase the size of the Board of Directors to nine (9) directors and elect two new directors who it determines do qualify as Independent Directors. (f) The Stockholders shall no longer be entitled to have the right to designate, or cause the nomination or election of, (i) more than two members of BVF Designee serve on the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of Director Termination Date, at which time the Board of Directors Stockholders will cause the BVF Designee immediately to resign from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at Subject to Section 8(c), (i) the Closing Date, there shall be six (6) vacancies authorized number of directors on the Board shall be set from time to time by resolution of Directors by: (i) an increase in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections the Bylaws of the Company, but shall consist of not less than five (i5) directors, and (ii) of this Section 2.01(a)the Company agrees to take such actions as are necessary, to serve from the Closing Date until the end of their respective terms. (b) Thereafter, and each of the Investors WP Parties and the Other Shareholders agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors Stock and to take such action other actions as may are necessary, so as to elect and thereafter continue in office as directors of the Company, (x) up to a number of individuals that would constitute a majority of the then authorized number of directors on the Board, which shall in no event be necessary less than two (2) individuals, designated by the WP Parties in writing, from time to cause the Board of Directors to nominate and recommend time to the stockholders Company and the Other Shareholders (the “WP Designees,” and the director positions that the WP Parties have the right to so designate being referred to herein as the “WP Designee Positions”), which individuals shall, as of the date of this Agreement, be R. Xxxx Honey and Xxxxx Xxxxxxxx, (y) the then serving Chief Executive Officer of the Company as (the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark“Management Designee”), and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees (z) up to appear in person two (2) individuals that are unaffiliated with either the WP Parties or by proxy at any annual or special meeting of stockholders the Chief Executive Officer of the Company for (or their respective Affiliates) and that are designated by the purpose mutual agreement of obtaining the WP Parties and the Chief Executive Officer of the Company in writing, from time to time to the Company and the Other Shareholders (the “Independent Designees,” and the director positions so designated being referred to herein as the “Independent Positions”), which individuals shall be selected, if at all, following the date hereof. (b) The WP Parties shall have the right, upon written notice to the Company and the Other Shareholders, to (i) remove and replace each WP Designee, the Management Designee (if such person is no longer serving as the Chief Executive Officer of the Company) or any Independent Designee during his or her term in office and (ii) to fill any vacancy otherwise occurring in a quorum WP Designee Position. Upon receipt of such written notice, the Company agrees to take such actions as are necessary, and each of the Other Shareholders agrees to vote its shares of Voting SecuritiesStock and to take such other actions as are necessary, either in person so as to remove or by proxyreplace each such designee, at or to fill any such meeting of stockholders called for vacancy, as so specified in such notice (if applicable), provided the purpose of voting on the election of directors vacancies created by or by otherwise referred to in any consensual action with respect to the election of directorssuch notice shall be filled, in favor of the election of the directors nominated if at all, only in accordance with this paragraphthe provisions of Section 8(a). (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any Each member of the Board shall have one vote on all matters before the Board; provided, however, the WP Designees then serving shall at all times have, in the aggregate, that number of Directors from and after votes equal to the number of WP Designee Positions at such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% time (i.e., a majority of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereofBoard). (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. 3.2.1. The Board shall consist of 8 (aeight) Effective Directors being (i) at least 3 (three) DTPL nominated Directors (“DTPL Directors”); (ii) each Senior Management Persons to be nominated as a Director (“SMP Directors”); and (iii) 1 (one) independent Director nominated jointly by DTPL and Senior Management Persons. 3.2.2. With effect from the Closing Date, there each SMP Director shall be six (6) vacancies on the Board of Directors by: (i) an increase in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders executive directors of the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation terms of an employment agreement in the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereofAgreed Form. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of 3.2.3. DTPL Directors shall promptly upon the request of be such Investor nominate or elect, individuals as the case may be, a qualified person recommended be nominated by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may DTPL from time to time reasonably requestat its sole discretion. 3.2.4. The DTPL Directors shall be appointed as a non-executive Director of the Company and shall not be considered or named as an officer who is in default (as defined under the Act). 3.2.5. DTPL shall have a right to nominate, information regarding change and replace the DTPL Director(s) on the Board. In the event of any vacancy being caused in the office of a DTPL Director, such Investor's designees vacancy shall be filled by nomination by DTPL. 3.2.6. If any SMP Director ceases to be a Shareholder or becomes a Defaulting Shareholder for the purposes of Clause 14, (a) The consequence of Event of Default under clause 14.2 shall be followed; and (b) he shall resign and shall be deemed to have resigned as an employee of the Company. 3.2.7. For the purposes of Clause 3.2.6, no separate letter of resignation shall be required from the Senior Management Persons and the deeming provision at Clause 3.2.6 shall suffice to make all such filings with the relevant Governmental Authorities as may be required. 3.2.8. Any nomination, appointment or removal by DTPL of its nominee shall be effected by notice in writing to the Board by the authorized representative of DirectorsDTPL. Any such removal shall take effect upon receipt of such notice by the Board and any appointment shall take effect from the date the nominee is appointed by a resolution of the Board. The Parties hereby agree to take all reasonable effort to forthwith convene a Board Meeting and undertake to vote in favor of such appointment. 3.2.9. The Shareholders shall have the right by notice in writing to the Board to nominate an Alternate Director to act in place of a nominee nominated by such Party in accordance with Applicable Laws. The Company and the Shareholders shall take all steps necessary to secure the appointment of the alternate Director. The alternate Director so appointed shall be entitled to attend the meetings of the Board and vote in place of the original Director who is unable to attend any Board Meeting. Any such Alternate Director shall be counted towards the quorum and shall be entitled to receive notice of all Board Meetings and generally to perform all other functions of the original Director in his absence. 3.2.10. Subject to the terms hereof, each Director shall be entitled to nominate an alternate to attend and vote at meetings of the Board in the absence of the appointed Director (“Alternate Director”). The Alternate Director shall be approved in writing by the relevant nominating Director or the nominating Shareholder and shall be appointed by the Board in accordance with the provisions of the Act and this Agreement. The Alternate Director shall be considered for inclusion the constitution of quorum and shall be entitled to attend and vote at such meetings in place of the Director and generally perform all functions of the Director in such Director’s absence. Upon the appointment of the Alternate Director, all notices and other materials that are circulated to the Directors shall be circulated to the Director and the Alternate Director appointed by Director. Any Alternate Director nominated by the Senior Management Person to attend and vote at the meetings of the Board in the absence of the SMP Director, shall be subject to the prior written consent of the DTPL. 3.2.11. The members of the Board shall not be entitled to any form, report, schedule, registration statement, definitive proxy statement or other documents required remuneration in their capacity as Directors but shall be entitled to be filed reimbursed for travel, accommodation and related expenses for attending Board Meetings and other Company business events. 3.2.12. Subject to the provisions of the Act and Clause 4 of this Agreement, any matter to be decided by the Company Board may be decided by way of a circular resolution, where: (a) the draft resolution along with an explanatory note has been circulated to all Directors; and (b) Subject to Clause 4, a majority of all Directors entitled to vote shall have approved the Securities resolution. All Affirmative Vote Matters shall need to be approved as per the provisions of Clause 4 or Clause 5, as applicable, and Exchange Commissionunless so approved shall be deemed to have been rejected.

Composition of Board of Directors. (a) Effective at No later than December 8, 2005, the Closing DateBoard of Directors shall, there shall be six (6) vacancies pursuant to the powers granted to it under the Bylaws, increase the size of the Board of Directors by three and elect the initial Third Point Designees named in this Stockholders Agreement to fill the new directorships so created on the Board of Directors by: and to serve in such capacity from such date of election through the Director Termination Date. (b) Until and including the earlier of (i) the Director Termination Date and (ii) an increase in annual meeting of the Company to be held during 2007, the Board of Directors shall, at each meeting of stockholders of the Company at which the terms of the Third Point Designees are scheduled to include eight expire, nominate the Third Point Designees to stand for election as directors of the Company for a succeeding term in accordance with the Company's procedures for nomination of directors as provided for in its Bylaws, recommend such election and solicit proxies in respect thereof and vote the shares of Common Stock represented by all proxies granted by stockholders in connection with the solicitation of proxies by the Board of Directors in connection with such meeting in favor of the Third Point Designees, except for such proxies that specifically indicate a vote to withhold authority with respect to the Third Point Designees. (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at c) Until the Closing Director Termination Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies cause any vacancy created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause on the Board of Directors by reason of the death, resignation or removal of a then serving Third Point Designee to nominate and recommend be filled promptly by a successor Third Point Designee named by the Stockholders as follows: (i) In the event of the death or disability of a Third Point Designee, or following the termination of all employment of a Third Point Designee with all of the Stockholders, the Stockholders shall be entitled to designate a replacement for the vacancy left by the death or disability, or termination of such full-time employment, of such Third Point Designee by written notice delivered to the stockholders Company to serve on the Board of Directors in accordance with Section 7.03 of this Agreement. Such subsequently designated Third Point Designee shall be an individual of high personal integrity and ethics, relevant expertise and professional experience and such other qualifications, as determined by the nominating committee of the Company as Board of Directors. Such subsequent nomination shall be promptly reviewed by and subject to the proposed members approval of the nominating committee and thereafter such replacement shall be promptly elected to the Board of Directors, provided such approval of the nominating committee and of the Board of Directors at shall not be unreasonably withheld or delayed. (ii) Other than pursuant to Section 2.01(c)(i) above, and only following June 2, 2006, the Stockholders shall only be entitled to replace one of the initial Third Point Designees (or any annual substitute Third Point Designee permitted under Section 2.01(c)(i) above). Such subsequently designated Third Point Designee shall be an individual of high personal integrity and ethics, relevant expertise and professional experience and such other qualifications, as determined by the nominating committee of the Board of Directors. Such subsequent nomination shall be promptly reviewed by and subject to the approval of the nominating committee and thereafter such replacement shall be promptly elected to the Board of Directors, provided such approval of the nominating committee and of the Board of Directors shall not be unreasonably withheld or special meeting delayed. In the event the Stockholders desire to replace one of stockholders called for the purpose Third Point Designees as permitted pursuant to this Section 2.01(c)(ii), the Stockholders shall provide written notice of voting their desire to replace such Third Point Designee in accordance with Section 7.03 of this Agreement. (iii) The Stockholders shall provide the information requested pursuant to Section 2.03 to the Company and the Board of Directors regarding any substitute Third Point Designee permitted under this Section 2.01(c). (d) While serving on the election Board of directorsDirectors and any committee thereof, three individuals designated by Edwardstoneeach Third Point Designee shall be entitled to all the rights and privileges of the other directors and committee members, three individuals designated by MidMarkincluding, without limitation, access to the Company's outside advisors; provided that each Third Point Designee shall not be entitled to participate in or observe, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders shall upon the good faith request of the Company for the purpose Board of obtaining a quorum and to vote its shares of Voting Securities, either in person Directors or by proxy, at any such committee recuse himself or herself from, any meeting or portion thereof at which the Board of stockholders called for the purpose of voting on the election of directors Directors or by any consensual such committee is evaluating and/or taking action with respect to (x) the election ownership of directors, in favor Voting Securities specifically by any member of the election Restricted Group, (y) the exercise of any of the directors nominated in accordance with Company's rights or enforcement of any of the obligations of any member of the Restricted Group under this paragraphStockholders Agreement or (z) any transaction proposed by, or with, any member of the Restricted Group. The Board of Directors or any such committee shall be entitled to take such actions as it shall deem reasonably necessary or appropriate to carry out the provisions of the preceding sentence. (ce) Notwithstanding the foregoing, each Investor The Stockholders shall cease no longer be entitled to have the right to designate, or cause the nomination or election of, (i) more than two members of Third Point Designees serve on the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of Director Termination Date, at which time the Stockholders will cause the Third Point Designees immediately to resign from the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting SecuritiesDirectors. The obligation of In furtherance thereof, each Investor Third Point Designee shall provide, upon election or appointment to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commissionan executed resignation effective upon a Director Termination Date.

Composition of Board of Directors. (a) At the Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing DateTime, the Corporation’s Board of Directors shall elect three individuals be comprised of twenty (20) Directors, to consist of twelve (12) of the then current members of the Corporation’s Board of Directors (including the then current Chairman, President and Chief Executive Officer of the Corporation), designated by Edwardstone the Corporation before the mailing of the Joint Proxy Statement (as defined in the Merger Agreement), at least seven (7) of whom must be “independent” under the rules of the New York Stock Exchange and the Securities and Exchange Commission with respect to the Corporation (the “Former Corporation Directors”), and eight (8) of the then current members of WHN’s Board of Directors (including the then current Chairman and Chief Executive Officer of WHN), designated by WHN before the mailing of the Joint Proxy Statement, at least five (5) of whom must be “independent” under the rules of the New York Stock Exchange and the Securities and Exchange Commission with respect to the Corporation (the “Former WHN Directors”). If any Former Corporation Director or Former WHN Director designated shall be unable or unwilling to serve as a Director at the Effective Time, the party which designated such individual as indicated above shall designate another individual reasonably acceptable to the Governance Committee to serve in such individual’s place. The Former Corporation Directors and Former WHN Directors who are designated shall be split such that two (2) of the three (3) classes of the Corporation’s Directors will be comprised of four (4) Former Corporation Directors and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i3) Former WHN Directors and one (ii1) of this Section 2.01(a), the three (3) classes of the Corporation’s Directors will be comprised of four (4) Former Corporation Directors and two (2) Former WHN Directors. Prior to serve from the Closing Date until mailing of the end of their respective terms. (b) ThereafterJoint Proxy Statement, each of the Investors agrees Corporation and WHN will designate in writing the class to vote its shares which each individual Director designated by such party is to be assigned. The members of Voting Securities to maintain an eight-member the Corporation’s Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company Effective Time will serve as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, until their respective successors are duly elected and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated qualified in accordance with this paragraph. (c) Notwithstanding the foregoingCorporation’s Articles of Incorporation, each Investor shall cease to have the right to designateBy-Laws and applicable law unless he or she earlier resigns, retires, is removed or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01serve. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at the Closing DateEffective Time, there shall be six (6) two vacancies on the Board of Directors by: either by (i) an increase in the Board of Directors to include eight in accordance with the terms of BFP's Certificate of Incorporation and By-laws, (8) members and ii) director resignations or (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxiii) a combination thereof. Effective at the Closing Date, Effective Time the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark two designees of Century to fill the six two vacancies on the Board of Directors created in accordance with subsections (i) and (ii) of this Section 2.01(a)the preceding sentence, to serve from the Closing Date Effective Time until the end of their respective terms. The two designees of Century shall be elected to different classes of the Board of Directors. For so long as one or more nominees of Century is a director of BFP, one of such nominees shall be designated as a Vice Chairman of the Board of Directors. (b) Thereafter, each of and subject to the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause next succeeding sentence, the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members (or any Committee of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of which nominates directors) shall, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special connection with each meeting of stockholders of BFP at which the Company term of any Century director expires, nominate for the purpose election as a director of obtaining a quorum and to vote its shares of Voting SecuritiesBFP, either in person or by proxy, at any such meeting of stockholders called accordance with BFP's procedures for the purpose of voting on the election nomination of directors or by any consensual action with respect as provided for in its By-laws, a designee of Century to the stand for election of directorsfor a succeeding term, and shall vote all management proxies in favor of such nominee, except for such proxies that specifically indicate to the election contrary. BFP shall recommend its stockholders to vote in favor of the directors nominated such nominees, and shall use reasonable efforts to solicit from its stockholders proxies voted in accordance with this paragraph. (c) favor of such nominees. Notwithstanding the foregoing, each Investor Century shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor Restricted Group beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor Century shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (dc) Until such time as an Investor the Restricted Group beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor Century in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, or if such director resigns or is removed, the Board of Directors shall promptly upon the request of such Investor Century nominate or elect, as the case may be, a new qualified person recommended by such Investor Century to replace such designee; . (d) Until such time as the Restricted Group beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, at each meeting of stockholders of BFP, the Restricted Group shall vote the Voting Securities held by the Restricted Group (i) for the nominees recommended by the Board of Directors (provided that such Investor shall have such right only if nominees include the nominees referred to in paragraphs (a) and to (b) above), and (ii) on all other proposals of the extent consistent with Board of Directors, as the foregoing provisions of this Section 2.01Restricted Group determines in its sole discretion. (e) Each Investor Century shall promptly provide to the CompanyBFP, as the Company BFP may from time to time reasonably request, information regarding such InvestorCentury's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company BFP with the Securities and Exchange Commission. (f) The members of the Board of Directors designated by Century in accordance with this Section 2.01 shall be covered by directors and officers insurance in the same manner as provided by BFP for its directors and officers generally.

Composition of Board of Directors. The shares of Series A --------------------------------- Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series E Preferred Stock and Series F Preferred Stock and, unless the context requires otherwise, the shares of Common Stock (aas such terms are defined in paragraph 4K) Effective at issued or issuable upon the Closing Dateconversion of such shares of Series A Preferred Stock, there Series B Preferred Stock, Series C Preferred Stock, Series E Preferred Stock and Series F Preferred Stock are referred to in this Agreement as the "Shares." The Purchasers and the Common Stockholders agree that in any election of directors of the Company, they shall be six (6) vacancies on vote all shares of capital stock of the Company owned or controlled by them, including all Shares, to elect a Board of Directors by: comprising six directors (unless reduced to a fewer number of directors as described below) designated as follows: (i) an increase two shall be directors designated by the holders of a majority of the Common Stock held by the Common Stockholders; (ii) one shall be designated by Austin Ventures, one shall be designated by Sigma and one shall be designated by CNET; and (iii) one shall be designated by the holders of a majority of the Common Stock held by the Common Stockholders and the Shares, voting together as a single class. In the event shares of Series A Preferred Stock or Series B Preferred Stock are redeemed in a Mandatory Redemption (as defined in part 3 of Article V.B of the Board Company's Third Amended and Restated Certificate of Directors Incorporation, as hereafter amended or restated), Austin Ventures, Sigma and CNET shall cause the directors designated by them in (ii) above to include eight (8) members resign, and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, number of directors constituting the entire Board of Directors shall elect be reduced by three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective termsdirectors. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Between the Effective at Date and the Closing Datedate upon which the Illini operating agreement is next amended, there shall be six (6) vacancies on the Board of Directors by: will be composed of the current initial directors and three (i3) an increase advisory directors who shall be appointed by Rawhide. Beginning upon the date upon which the Illini operating agreement is next amended, the directors appointed by Rawhide shall become actual directors with all of the rights of the other Illini directors and any quorum required for the Illini board of directors to thereafter take action shall require the presence of at least one director appointed by Rawhide. Provided, however, that if Illini gives the Rawhide appointed directors notice of two consecutive director meetings as provided in the Board Illini operating agreement, and at least one Rawhide appointed director does not attend either meeting, personally or telephonically, then thereafter no Rawhide appointed director shall necessarily be required for purposes of Directors a quorum. Notwithstanding the foregoing, the Rawhide appointed directors shall continue to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxxbe counted toward the minimum quorum requirement. Effective at Following the Escrow Closing Date, the Board will be composed of a total of nine (9) directors, four (4) of whom will be appointed by the initial directors of Illini to represent the Seed Capital Investors (the “Illini Appointed Directors”), and five (5) of whom will be appointed by Rawhide (the “Rawhide Appointed Directors”). Once appointed, a director may only be removed “for cause,” and an individual who has previously been removed for cause shall not at any time thereafter be eligible to serve as a director of Illini. The Illini Appointed Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each first special or annual meeting of the Investors agrees members following the date on which substantial operations of the Illini ethanol plant commence. After the expiration of the initial terms of the Illini Appointed Directors, four (4) directors shall be elected by the members for staggered terms of three (3) years at the first special or annual meeting; provided however, that Rawhide shall not be entitled to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of any directors that the members are entitled to elect. The five (5) Rawhide Appointed Directors shall not be elected by the members and shall continue to be appointed by and serve at the pleasure of Rawhide. Additionally, the Illini directors, three individuals designated as elected by Edwardstonethe members, three individuals designated by MidMarkshall annually appoint a member, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees from among themselves, to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election board of directors or of Rawhide. Xxxxxx Xxxxx shall be the first director so appointed. If Xxxxxx Xxxxx resigns, the directors of Illini, as elected by any consensual action with respect the members, shall then appoint a successor. Once appointed to the election Rawhide board of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor that director may be removed “for cause,” and an individual who has previously been removed for cause shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) not at any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall time thereafter be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable eligible to serve for any other reason, the Board as a director of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01Rawhide. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at No later than November 5, 2007, the Closing DateBoard of Directors shall, there shall be six (6) vacancies pursuant to the powers granted to it under the Bylaws, appoint Xxxxxxx as the initial Xxxxxxx Designee to the appropriate class of the Board of Directors, determined in accordance with the Certificate of Incorporation, to fill a current vacancy on the Board of Directors by: and to serve in such capacity from such date of election through the Termination Date. (ib) an increase in Until the Termination Date, the Board of Directors shall, cause the nomination for election or appointment of the Xxxxxxx Designee to include eight the Board of Directors, including as necessary by nominating the Xxxxxxx Designee to stand for election as a director of the Company in accordance with the Company’s procedures for nomination of directors as provided for in its Bylaws, recommend such election and solicit proxies in respect thereof, and vote the shares of Common Stock represented by all proxies granted by stockholders in connection with the solicitation of proxies by the Board of Directors in favor of the Xxxxxxx Designee at any meeting where such election is considered, except for such proxies that specifically indicate a vote to withhold authority with respect to the Xxxxxxx Designee. (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at c) Until the Closing Termination Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies cause any vacancy created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause on the Board of Directors by reason of the death, resignation or removal of the then serving Xxxxxxx Designee to nominate and recommend be filled promptly by a successor Xxxxxxx Designee named by the Stockholders as follows: (i) In the event of the death or disability of a Xxxxxxx Designee, or following the termination of employment of a Xxxxxxx Designee with all of the Stockholders, the Stockholders shall be entitled to designate a replacement for the vacancy left by the death or disability, or termination of such full-time employment, of such Xxxxxxx Designee by written notice delivered to the stockholders Company to serve on the Board of Directors in accordance with Section 7.4 of this Agreement. Such subsequently designated Xxxxxxx Designee shall be an individual of high personal integrity and ethics, relevant expertise and professional experience and such other qualifications, as determined by the nominating committee of the Company as Board of Directors. Such subsequent nomination shall be promptly reviewed by and subject to the proposed members approval of the nominating committee of the Board of Directors at and thereafter such replacement shall be promptly elected or appointed to the Board of Directors, provided such approval of the nominating committee and of the Board of Directors shall not be unreasonably withheld or delayed. (ii) The Stockholders shall provide the information requested pursuant to Section 2.2 to the Company and the Board of Directors regarding any annual or special meeting of stockholders called for the purpose of voting substitute Xxxxxxx Designee permitted under this Section 2.1(c). (d) While serving on the election Board of directorsDirectors and any committee thereof, three individuals designated by Edwardstonethe Xxxxxxx Designee shall be entitled to all the rights and privileges of the other directors and committee members, three individuals designated by MidMarkincluding, without limitation, access to the Company’s outside advisors; provided, that, the Xxxxxxx Designee shall not be entitled to participate in or observe, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders shall upon the good faith request of the Company for the purpose Board of obtaining a quorum and to vote its shares of Voting Securities, either in person Directors or by proxy, at any such committee recuse himself or herself from, any meeting or portion thereof at which the Board of stockholders called for the purpose of voting on the election of directors Directors or by any consensual such committee is evaluating and/or taking action with respect to (x) the election ownership of directors, in favor Voting Securities specifically by any member of the election Restricted Group, (y) the exercise of any of the directors nominated in accordance with Company’s rights or enforcement of any of the obligations of any member of the Restricted Group under this paragraphStockholders Agreement or (z) any transaction proposed by, or with, or any other matter related specifically to, any member of the Restricted Group. The Board of Directors or any such committee shall be entitled to take such actions as it shall deem reasonably necessary or appropriate to carry out the provisions of the preceding sentence. (ce) Notwithstanding the foregoing, each Investor The Stockholders shall cease no longer be entitled to have the right to designate, or cause the nomination or election of, (i) more than two members of a Xxxxxxx Designee serve on the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of Termination Date, at which time the Board of Directors Stockholders will cause the Xxxxxxx Designee to immediately resign from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors. In furtherance thereof, for inclusion in the parties agree that this Stockholders Agreement shall constitute the Xxxxxxx Designee’s resignation upon the occurrence of the Termination Date and such resignation shall automatically be effective on the Termination Date without any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed further action by the Company with the Securities and Exchange Commissionany party.

Composition of Board of Directors. (a) Effective at The Parties hereby agree that the Closing DateBoard of Directors of the Company (the “Board of Directors”) shall consist of four (4) directors (each a “Board Member”), there having a term of office up to three years or until the resignation or removal of such Board Member in accordance with this Agreement. KRD Kurdoğlu shall have the right to nominate and appoint three (3) Board Members to the Board of Directors and Cartesian shall have the right to nominate and appoint one (1) Board Member to the Board of Directors; provided, however, that (i) if KRD Kurdoğlu fails to fund the Redeemable Share Price payable by it pursuant to Section 2(a) of the Subscription Agreement, KRD Kurdoğlu shall not be entitled to nominate or appoint any Board Members to the Board of Directors and Cartesian shall have the right to nominate and appoint four (4) Board Members to the Board of Directors, in each case unless and until KRD Kurdoğlu funds the Redeemable Share Price payable by it pursuant to Section 2(b) of the Subscription Agreement, in which case KRD Kurdoğlu shall thereafter be entitled to nominate and appoint one (1) Board Member to the Board of Directors and Cartesian shall thereafter be entitled to nominate and appoint three (3) Board Members to the Board of Directors; and (ii) if KRD Kurdoğlu funds the Redeemable Share Price payable by it pursuant to Section 2(a) of the Subscription Agreement but fails to fund the Redeemable Share Price payable by it pursuant to Section 2(b) of the Subscription Agreement, KRD Kurdoğlu shall no longer be entitled to nominate and appoint three (3) Board Members to the Board of Directors and thereafter shall be six entitled to nominate and appoint one (61) vacancies Board Member to the Board of Directors and Cartesian shall thereafter be entitled to nominate and appoint three (3) Board Members to the Board of Directors. For the avoidance of doubt Cartesian shall be entitled to appoint three (3) Board Members to the Board of Directors during the periods when KRD Kurdoğlu is entitled to appoint only one (1) Board Member to the Board of Directors. Upon the issuance of the Bonus Shares to KRD Kurdoğlu and so long as KRD Kurdoğlu retains such shares, KRD Kurdoğlu shall be entitled to appoint one (1) Board Member to the Board of Directors in the event it has no other representative on the Board of Directors. (b) Each Shareholder agrees to vote, or cause to be voted its Shares, now or hereafter owned, whether beneficially or otherwise, in the affirmative for the election of all Board Members designated and nominated by each of KRD Kurdoğlu and Cartesian in accordance with Article 3.1(a) (each of which shall be the “Nominating Holder”). (c) In case of a vacancy in any of the Board of Directors due to resignation, death, expiry of term or any other reasons, the new Board Member to fill in such vacancy may only be nominated by the Nominating Holder entitled to nominate such Board Member pursuant to the provisions of Article 3.1(a) and the Board of Directors shall appoint such nominee to fill the vacancy pending election of such nominee by Shareholders in accordance with the Memorandum and Articles. Subject to approval of such nominee’s appointment by the Shareholders, the nominee Board Member shall serve for the remaining term of office of his or her predecessor. (d) The chairman (“Chairman”) and vice chairman of the Board of Directors shall be elected by the Board of Directors by simple majority. The Chairman shall not have a casting vote; in other words, the Chairman shall only be entitled to one vote on any matter voted on by the Board of Directors and shall not have any special rights. (e) Board Member shall not be entitled to receive any compensation for their services on the Board of Directors. (f) Cartesian’s Board Member on the Board of Directors by: (i) an increase in shall be entitled to the same level of access to the Company’s books, records, information, facilities, management and advisors as the other members of the Board of Directors to include eight (8) members Directors. In furtherance of the foregoing, the Company and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, KRD Kurdoğlu shall ensure that Cartesian’s Board Member on the Board of Directors shall elect three individuals designated by Edwardstone receive all financial and three individuals designated by Midmark to fill the six vacancies created operating reports (in accordance with subsections (iEnglish) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend provided to the stockholders of the Company as the proposed other members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, as and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees when such materials are sent to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraphthem. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase As provided in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing DateCompany’s Bylaws, the Board number of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting shall initially be three. Each Shareholder shall vote all of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMarkits shares, and Xxx Xxxx shall take all other necessary and Xxxxxx Xxxxx. Each Investor agrees to appear desirable actions within such Shareholder’s control (whether in person its capacity as a shareholder, director, member of a board committee or by proxy at any annual or special meeting of stockholders officer of the Company for or otherwise), and the purpose of obtaining a quorum Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and shareholders’ meetings) to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for ensure that: (a) the purpose of voting on the election number of directors or by any consensual action with respect constituting the Board of Directors remains three until the earlier to the election occur of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more the first date on which CPK holds less than two twenty-three percent (23%) of the Then Outstanding Shares and (ii) that date on which CPK elects not to exercise its right of first refusal set forth in Section 6 to purchase its entire pro rata share of New Securities; (b) one of the members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% shall be an individual designated by Flax, who shall initially be Xxxxx Xxxx; (c) one of the Voting Power members of all the Board of Directors shall be an individual designated by Xxxxxxxxxx, who shall initially be Xxxxxxx Xxxxxxxxxx; (d) until the first date on which CPK no longer holds at least fifteen percent (15%) of the Then Outstanding Voting Securities or Shares, one of the members of the Board of Directors shall be an individual designated by CPK, who shall initially be Xxxx Xxxx; (iie) in the event that any member of the Board of Directors from who was designated by either Flax and after Xxxxxxxxxx ceases to serve as a director for any reason, that the Shareholder who designated such date as designee shall designate the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation successor member of the Board of Directors hereunder to nominate for election as directors individuals designated by thereto, and that such designee shall become a member of the other Investor shall be subject to Board of Directors; (f) in the foregoing limitation. The obligation event that the member of the Board of Directors hereunder who was designated by CPK ceases to nominateserve as a director for any reason, and such cessation occurs prior to the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease first date on the date that is one year from the date hereof. which CPK no longer holds at least fifteen percent (d15%) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power Then Outstanding Shares, that CPK shall designate the successor member of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or electthereto, as the case may be, a qualified person recommended by such Investor to replace such designee; provided and that such Investor designee shall have such right only if and to the extent consistent with the foregoing provisions become a member of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors; (g) in the event that a Shareholder desires to remove from the Board of Directors the member designated by such Shareholder, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by that the Shareholders and the Company with shall take all necessary actions to remove such designee from the Securities and Exchange CommissionBoard; and (h) so long as CPK owns at least 15% of the Then Outstanding Shares immediately prior to a Transfer of its shares, if CPK Transfers at least 15% of the Then Outstanding Shares to a single transferee, that the number of directors constituting the Board of Directors is increased to a sufficient number so that such transferee can elect one board member pursuant to the cumulative voting procedures imposed by California law.

Composition of Board of Directors. (a) Effective at The Board shall consist of up to seven (7) members, except when the Closing Date, there shall be six (6) vacancies on size of the Board of Directors by: (imay need to be increased pursuant to Section 3.1(i) an increase in herein, at which time the Board shall consist of Directors up to include eight fifteen (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx15) members. Effective at Stockholders shall have the Closing Date, right to nominate directors as set forth below. All Stockholders shall comply with the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) provisions of this Section 2.01(a), Article 3 to serve from ensure that nominees are elected to (or removed from) the Closing Date until the end of their respective termsBoard. (b) Thereafter, each The Chief Executive Officer of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action Company, as may appointed by the Board, shall be necessary to cause nominated by the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraphdirector. (c) Notwithstanding the foregoingABS Capital Partners V, each Investor L.P. (“ABS”) or its assignee, shall cease to have the right to designate, or cause nominate one (1) individual to be a director (the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof“ABS Director”). (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting SecuritiesICG Holdings, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may beInc., a qualified person recommended by such Investor to replace such designee; provided that such Investor Delaware corporation (“ICG”) or its assignee, shall have such the right only if and to the extent consistent with the foregoing provisions nominate two (2) individuals to be directors, one of this Section 2.01whom shall be an Independent Director (each, an “ICG Director”). (e) Each Investor 3i shall promptly provide have the right to nominate one (1) individual to be a director (the “3i Director”). (f) Wall Street Technology Partners LP, a Delaware limited partnership (“Wall Street”), shall have the right to nominate one (1) individual to be a director (the “Wall Street Director”). (g) Wall Street, 3i and ABS, acting jointly, shall have the right to nominate one (1) Independent Director. (h) If at any time ABS ceases to own at least fifty percent (50%) of the Preferred Stock that it owns as of the date hereof (after giving effect to the Companytransactions contemplated by this Agreement), ABS’s right to appoint an individual to be a director pursuant to Section 3.1(c), and ABS’s right to participate in the nomination of an Independent Director pursuant to Section 3.1(g) shall each immediately become null and void. If at any time Wall Street ceases to own at least fifty percent (50%) of the Preferred Stock that it owns as of the date hereof (after giving effect to the transactions contemplated by this Agreement), Wall Street’s right to appoint an individual to be a director pursuant to Section 3.1(f) and Wall Street’s right to participate in the nomination of an Independent Director pursuant to Section 3.1(g), shall each immediately become null and void. If at any time 3i ceases to own at least fifty percent (50%) of the Preferred Stock that it owns as of the date hereof (after giving effect to the transactions contemplated by this Agreement), 3i’s right to appoint an individual to be a director pursuant to Section 3.1(e), and 3i’s right to participate in the nomination of an Independent Director pursuant to Section 3.1(g), shall each immediately become null and void. If at any time ICG ceases to own at least fifty percent (50%) of the Preferred Stock that it owns as of the date hereof (after giving effect to the transactions contemplated by this Agreement), ICG’s right to appoint two individuals to be directors pursuant to Section 3.1(d) shall immediately become null and void. (i) Notwithstanding anything to the contrary contained in this Section 3.1, upon the redemption of any Series AA Preferred Stock (“Series AA Redemption Shares”) or Series CC Preferred Stock (“Series CC Redemption Shares” and, together with Series AA Redemption Shares, “Redemption Shares”), if the Company may from time shall issue to time reasonably requestthe former holders thereof Redemption Notes (as defined in, information regarding such Investor's designees for the Board of Directors, for inclusion and in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company accordance with the Securities and Exchange Commission.Charter), then the following provisions shall apply in the alternative:

Composition of Board of Directors. (a) Effective at The Company agrees that it will, concurrently herewith, duly adopt a resolution to increase the Closing Date, there shall be six (6) vacancies on the Board size of Directors by: (i) an increase in the Board of Directors to include eight seven (8) 7) members pursuant to Article II, Section 2 of the Company's By-Laws and to appoint as Class I Directors of the Company pursuant to Article II, Section 3 of the Company's By-Laws, the Atticus Designees. The Company further agrees that it will not, prior to the 1999 Annual Meeting, take any action to increase the size of the Board of Directors to more than seven (7) members. (b) The Company agrees that if at any time an Atticus Designee (including Messrs. Barakett and Goodxxx xx their successors) shall leave his position on the Board of Directors, whether through resignation or otherwise, other than a result of the failure of such Atticus Designee to be elected as a member of the Company's Board of Directors at a duly called and held meeting of the Company's stockholders, the Stockholder shall have the power to nominate the successor of such departing Atticus Designee to serve out the remainder of the term of such departing Atticus Designee. Upon such nomination, the Chairman of the Board shall call a meeting of the Board of Directors for the purpose of appointing such nominee and the remaining Atticus Designee and the Continuing Directors agree to vote to appoint such nominee to the Board of Directors. (c) The Atticus Designees and the Stockholder agree that if at any time a Continuing Director (including Messrs. Cox, Schwartz, Moorx xx O'Doxxxxx xx Ms. Xxxxxx xx their successors) shall leave his or her position on the Board of Directors, whether through resignation or otherwise, other than a result of the failure of such Continuing Director to be elected as a member of the Company's Board of Directors at a duly called and held meeting of the Company's stockholders, the Continuing Directors, acting by majority vote, shall have the power to nominate designate the successor of such departing Continuing Director to serve out the remainder of the term of such departing Continuing Director. Upon such nomination, the Chairman of the Board shall call a meeting of the Board of Directors for the purpose of appointing such nominee and the Atticus Designees and the Continuing Directors agree to vote to appoint such nominee to the Board of Directors. (d) Each of the Atticus Designees and the Stockholder hereby agrees (i) to cooperate with the Company in the preparation of its proxy statement relating to the 1998 Meeting in accordance with the 1934 Act and the rules and regulations under the 1934 Act and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx ii) promptly to provide the Company with any and Xxxxx Xxxxxx. Effective at all information required or necessary pursuant to Schedule 14A of Rule 14a-101 promulgated under the Closing Date, 1934 Act. (e) The Company agrees that the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members establish a committee of the Board of Directors at any annual or special meeting (the "Strategic Committee") pursuant to Article II, Section 12 of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders ByLaws of the Company for the purpose to consist of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of two (2) directors, in favor of the election of the directors nominated in accordance with this paragraph. which initially shall be Timoxxx X. Xxxxxxxx (cxxe "Atticus Representative") Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, and Alan X. Xxxxxxxx (i) more than two members of the xxe "Continuing Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting SecuritiesRepresentative"). The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon delegate to the request Strategic Committee the exclusive power and authority to (i) control and/or oversee the negotiation, preparation and performance of such Investor nominate any agreement with respect to a sale, merger or electother business combination involving the Company (a "Sale Transaction") and provide a recommendation to the full Board of Directors concerning any potential Sale Transaction, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor the Company shall have such right only if not in any event enter into a definitive agreement with respect to a Sale Transaction without the approval of the full Board of Directors and to the extent consistent with the foregoing provisions of this Section 2.01. (eii) Each Investor shall promptly provide to review and evaluate the Company's executive officers in light of the Company's strategic needs and objectives and take action in connection therewith, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.including entering into,

Composition of Board of Directors. (a) Effective at The Parties hereby agree that the Closing DateBoard of Directors of the Company (the “Board of Directors”) shall consist of four (4) directors (each a “Board Member”), there having a term of office up to three years or until the resignation or removal of such Board Member in accordance with this Agreement. KRD Kurdoğlu shall have the right to nominate and appoint three (3) Board Members to the Board of Directors and Cartesian shall have the right to nominate and appoint one (1) Board Member to the Board of Directors; provided, however, that (i) if KRD Kurdoğlu fails to fund the Redeemable Share Price payable by it pursuant to Section 2(a) of the Subscription Agreement, KRD Kurdoğlu shall not be entitled to nominate or appoint any Board Members to the Board of Directors and Cartesian shall have the right to nominate and appoint four (4) Board Members to the Board of Directors, in each case unless and until KRD Kurdoğlu funds the Redeemable Share Price payable by it pursuant to Section 2(b) of the Subscription Agreement, in which case KRD Kurdoğlu shall thereafter be entitled to nominate and appoint one (1) Board Member to the Board of Directors and Cartesian shall thereafter be entitled to nominate and appoint three (3) Board Members to the Board of Directors; and (ii) if KRD Kurdoğlu funds the Redeemable Share Price payable by it pursuant to Section 2(a) of the Subscription Agreement but fails to fund the Redeemable Share Price payable by it pursuant to Section 2(b) of the Subscription Agreement, KRD Kurdoğlu shall no longer be entitled to nominate and appoint three (3) Board Members to the Board of Directors and thereafter shall be six entitled to nominate and appoint one (61) vacancies Board Member to the Board of Directors and Cartesian shall thereafter be entitled to nominate and appoint three (3) Board Members to the Board of Directors. For the avoidance of doubt Cartesian shall be entitled to appoint three (3) Board Members to the Board of Directors during the periods when KRD Kurdoğlu is entitled to appoint only one (1) Board Member to the Board of Directors. Upon the issuance of the Bonus Shares to KRD Kurdoğlu and so long as KRD Kurdoğlu retains such shares, KRD Kurdoğlu shall be entitled to appoint one (1) Board Member to the Board of Directors in the event it has no other representative on the Board of Directors. (b) Each Shareholder agrees to vote, or cause to be voted its Shares, now or hereafter owned, whether beneficially or otherwise, in the affirmative for the election of all Board Members designated and nominated by each of KRD Kurdoğlu and Cartesian in accordance with Article 3.1 (a) (each of which shall be the “Nominating Holder”). (c) In case of a vacancy in any of the Board of Directors due to resignation, death, expiry of term or any other reasons, the new Board Member to fill in such vacancy may only be nominated by the Nominating Holder entitled to nominate such Board Member pursuant to the provisions of Article 3.1(a) and the Board of Directors shall appoint such nominee to fill the vacancy pending election of such nominee by Shareholders in accordance with the Memorandum and Articles. Subject to approval of such nominee’s appointment by the Shareholders, the nominee Board Member shall serve for the remaining term of office of his or her predecessor. (d) The chairman (“Chairman”) and vice chairman of the Board of Directors shall be elected by the Board of Directors by simple majority. The Chairman shall not have a casting vote; in other words, the Chairman shall only be entitled to one vote on any matter voted on by the Board of Directors and shall not have any special rights. (e) Board Member shall not be entitled to receive any compensation for their services on the Board of Directors. (f) Cartesian’s Board Member on the Board of Directors by: (i) an increase in shall be entitled to the same level of access to the Company’s books, records, information, facilities, management and advisors as the other members of the Board of Directors to include eight (8) members Directors. In furtherance of the foregoing, the Company and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, KRD Kurdoğlu shall ensure that Cartesian’s Board Member on the Board of Directors shall elect three individuals designated by Edwardstone receive all financial and three individuals designated by Midmark to fill the six vacancies created operating reports (in accordance with subsections (iEnglish) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend provided to the stockholders of the Company as the proposed other members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, as and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees when such materials are sent to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraphthem. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase in the Board of Directors to include eight (8) members The Company covenants and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities take all necessary or advisable actions to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual its directors and its shareholders that Shareholders’ Nominees be appointed or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or electelected, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with Board of Directors at each meeting of directors called for the foregoing provisions purposes of appointing directors and/or at each meeting of shareholders of the Company at which directors are to be elected and at such other times as may be required by the Shareholders, to give effect to the following: (i) on the date of this Section 2.01. Agreement, the Board of Directors shall be reconstituted to be comprised of five (e5) Each Investor individuals, of which two (2) individuals shall promptly provide to the Companybe Shareholders’ Nominees, as the Company may from time to time reasonably request, information regarding such Investor's designees for two (2) individuals shall be incumbent directors and one (1) individual (who will also be appointed Chairman of the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to ) shall be filed mutually selected by the Shareholders and the incumbent directors; and (ii) at the first meeting of shareholders of the Company following the date of this Agreement, the number of directors shall be increased to seven (7) and: (A) until such time as the Project has achieved the Operating Criteria, three (3) individuals who are Shareholders’ Nominees, three (3) individuals who are incumbent directors (other than Shareholders’ Nominees) and one (1) individual (who will also be appointed Chairman of the Board of Directors) who is mutually selected by the Shareholders and the incumbent directors (other than Shareholders’ Nominees) shall be appointed or elected directors of the Company, from time to time; and (B) after the Project has achieved the Operating Criteria, the percentage of the total number of directors comprising the Board of Directors represented by the Shareholders’ Nominees appointed and/or elected to the Board of Directors shall at all times approximate the percentage of the outstanding Common Shares represented by the number of Common Shares then beneficially owned by the Shareholders and their respective Affiliates and/or over which they exercise control or direction, in the aggregate (calculated, in each case, on a non-diluted basis). (b) The Company covenants and agrees to take such other action necessary or advisable to facilitate the appointment to and continuing membership on the Board of Directors of the Shareholders’ Nominees. (c) The Shareholders shall have the right to request any Shareholders’ Nominee to resign as a director at any time. In the event of the resignation, death or disqualification of a Shareholders’ Nominee, the Shareholders shall have the right to nominate a replacement director and, in such event, the Company covenants and agrees to take all necessary actions to recommend to its directors and its shareholders that such replacement be appointed or elected in accordance with Section 4.1(a). Any vacancy on the Securities and Exchange CommissionBoard of Directors created by the removal, death, disqualification or resignation of a Shareholders Nominee shall be filled with a new Shareholders’ Nominee. If the Shareholders fail to designate a new nominee within 30 days of the death, disqualification, resignation or removal of a Shareholders’ Nominee, the Shareholders shall be entitled to designate an individual to act as an observer at the meetings of the Board of Directors.

Composition of Board of Directors. (a) At the Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing DateTime, the Corporation's Board of Directors shall elect three individuals be comprised of twenty (20) Directors, to consist of twelve (12) of the then current members of the Corporation's Board of Directors (including the then current Chairman, President and Chief Executive Officer of the Corporation), designated by Edwardstone the Corporation before the mailing of the Joint Proxy Statement (as defined in the Merger Agreement), at least seven (7) of whom must be "independent" under the rules of the New York Stock Exchange and the Securities and Exchange Commission with respect to the Corporation (the "Former Corporation Directors"), and eight (8) of the then current members of WHN's Board of Directors (including the then current Chairman and Chief Executive Officer of WHN), designated by WHN before the mailing of the Joint Proxy Statement, at least five (5) of whom must be "independent" under the rules of the New York Stock Exchange and the Securities and Exchange Commission with respect to the Corporation (the "Former WHN Directors"). If any Former Corporation Director or Former WHN Director designated shall be unable or unwilling to serve as a Director at the Effective Time, the party which designated such individual as indicated above shall designate another individual reasonably acceptable to the Governance Committee to serve in such individual's place. The Former Corporation Directors and Former WHN Directors who are designated shall be split such that two (2) of the three (3) classes of the Corporation's Directors will be comprised of four (4) Former Corporation Directors and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i3) Former WHN Directors and one (ii1) of this Section 2.01(a), the three (3) classes of the Corporation's Directors will be comprised of four (4) Former Corporation Directors and two (2) Former WHN Directors. Prior to serve from the Closing Date until mailing of the end of their respective terms. (b) ThereafterJoint Proxy Statement, each of the Investors agrees Corporation and WHN will designate in writing the class to vote its shares which each individual Director designated by such party is to be assigned. The members of Voting Securities to maintain an eight-member the Corporation's Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company Effective Time will serve as the proposed members of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, until their respective successors are duly elected and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated qualified in accordance with this paragraph. (c) Notwithstanding the foregoingCorporation's Articles of Incorporation, each Investor shall cease to have the right to designateBy-Laws and applicable law unless he or she earlier resigns, retires, is removed or cause the nomination or election of, (i) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01serve. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.

Composition of Board of Directors. (a) Effective at the Closing Date, there shall be six (6) vacancies on the Board of Directors by: (i) an increase As provided in the Board of Directors to include eight (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at the Closing DateCompany's Bylaws, the Board number of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders of the Company as the proposed members of the Board of Directors at any annual or special meeting shall initially be three. Each Shareholder shall vote all of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMarkits shares, and Xxx Xxxx shall take all other necessary and Xxxxxx Xxxxx. Each Investor agrees to appear desirable actions within such Shareholder's control (whether in person its capacity as a shareholder, director, member of a board committee or by proxy at any annual or special meeting of stockholders officer of the Company for or otherwise), and the purpose of obtaining a quorum Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and shareholders' meetings) to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for ensure that: the purpose of voting on the election number of directors or by any consensual action with respect constituting the Board of Directors remains three until the earlier to the election occur of directors, in favor of the election of the directors nominated in accordance with this paragraph. (c) Notwithstanding the foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more the first date on which CPK holds less than two twenty-three percent (23%) of the Then Outstanding Shares and (ii) that date on which CPK elects not to exercise its right of first refusal set forth in Section 6 to purchase its entire pro rata share of New Securities; one of the members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% shall be an individual designated by Flax, who shall initially be Xxxxx Xxxx; one of the Voting Power members of all the Board of Directors shall be an individual designated by Xxxxxxxxxx, who shall initially be Xxxxxxx Xxxxxxxxxx; until the first date on which CPK no longer holds at least fifteen percent (15%) of the Then Outstanding Voting Securities or (ii) Shares, one of the members of the Board of Directors shall be an individual designated by CPK, who shall initially be Xxxx Xxxx; in the event that any member of the Board of Directors from who was designated by either Flax and after Xxxxxxxxxx ceases to serve as a director for any reason, that the Shareholder who designated such date as designee shall designate the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the obligation successor member of the Board of Directors hereunder to nominate for election as directors individuals designated by thereto, and that such designee shall become a member of the other Investor shall be subject to Board of Directors; in the foregoing limitation. The obligation event that the member of the Board of Directors hereunder who was designated by CPK ceases to nominateserve as a director for any reason, and such cessation occurs prior to the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease first date on the date that is one year from the date hereof. which CPK no longer holds at least fifteen percent (d15%) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power Then Outstanding Shares, that CPK shall designate the successor member of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or electthereto, as the case may be, a qualified person recommended by such Investor to replace such designee; provided and that such Investor designee shall have such right only if and to the extent consistent with the foregoing provisions become a member of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors; in the event that a Shareholder desires to remove from the Board of Directors the member designated by such Shareholder, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by that the Shareholders and the Company with shall take all necessary actions to remove such designee from the Securities Board; and Exchange Commissionso long as CPK owns at least 15% of the Then Outstanding Shares immediately prior to a Transfer of its shares, if CPK Transfers at least 15% of the Then Outstanding Shares to a single transferee, that the number of directors constituting the Board of Directors is increased to a sufficient number so that such transferee can elect one board member pursuant to the cumulative voting procedures imposed by California law.

Composition of Board of Directors. (a) Effective at No later than December 8, 2005, the Closing DateBoard of Directors shall, there shall be six (6) vacancies pursuant to the powers granted to it under the Bylaws, increase the size of the Board of Directors by three and elect the initial Third Point Designees named in this Stockholders Agreement to fill the new directorships so created on the Board of Directors by: and to serve in such capacity from such date of election through the Director Termination Date. (b) Until and including the earlier of (i) the Director Termination Date and (ii) an increase in annual meeting of the Company to be held during 2007, the Board of Directors shall, at each meeting of stockholders of the Company at which the terms of the Third Point Designees are scheduled to include eight expire, nominate the Third Point Designees to stand for election as directors of the Company for a succeeding term in accordance with the Company's procedures for nomination of directors as provided for in its Bylaws, recommend such election and solicit proxies in respect thereof and vote the shares of Common Stock represented by all proxies granted by stockholders in connection with the solicitation of proxies by the Board of Directors in connection with such meeting in favor of the Third Point Designees, except for such proxies that specifically indicate a vote to withhold authority with respect to the Third Point Designees. (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx. Effective at c) Until the Closing Director Termination Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies cause any vacancy created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the Closing Date until the end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause on the Board of Directors by reason of the death, resignation or removal of a then serving Third Point Designee to nominate and recommend be filled promptly by a successor Third Point Designee named by the Stockholders as follows: 4 NSD\56089.7 (i) In the event of the death or disability of a Third Point Designee, or following the termination of all employment of a Third Point Designee with all of the Stockholders, the Stockholders shall be entitled to designate a replacement for the vacancy left by the death or disability, or termination of such full-time employment, of such Third Point Designee by written notice delivered to the stockholders Company to serve on the Board of Directors in accordance with SECTION 7.03 of this Agreement. Such subsequently designated Third Point Designee shall be an individual of high personal integrity and ethics, relevant expertise and professional experience and such other qualifications, as determined by the nominating committee of the Company as Board of Directors. Such subsequent nomination shall be promptly reviewed by and subject to the proposed members approval of the nominating committee and thereafter such replacement shall be promptly elected to the Board of Directors, provided such approval of the nominating committee and of the Board of Directors at shall not be unreasonably withheld or delayed. (ii) Other than pursuant to SECTION 2.01(C)(I) above, and only following June 2, 2006, the Stockholders shall only be entitled to replace one of the initial Third Point Designees (or any annual substitute Third Point Designee permitted under SECTION 2.01(C)(I) above). Such subsequently designated Third Point Designee shall be an individual of high personal integrity and ethics, relevant expertise and professional experience and such other qualifications, as determined by the nominating committee of the Board of Directors. Such subsequent nomination shall be promptly reviewed by and subject to the approval of the nominating committee and thereafter such replacement shall be promptly elected to the Board of Directors, provided such approval of the nominating committee and of the Board of Directors shall not be unreasonably withheld or special meeting delayed. In the event the Stockholders desire to replace one of stockholders called for the purpose Third Point Designees as permitted pursuant to this SECTION 2.01(C)(II), the Stockholders shall provide written notice of voting their desire to replace such Third Point Designee in accordance with SECTION 7.03 of this Agreement. (iii) The Stockholders shall provide the information requested pursuant to SECTION 2.03 to the Company and the Board of Directors regarding any substitute Third Point Designee permitted under this SECTION 2.01(C). (d) While serving on the election Board of directorsDirectors and any committee thereof, three individuals designated by Edwardstoneeach Third Point Designee shall be entitled to all the rights and privileges of the other directors and committee members, three individuals designated by MidMarkincluding, without limitation, access to the Company's outside advisors; PROVIDED that each Third Point Designee shall not be entitled to participate in or observe, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders shall upon the good faith request of the Company for the purpose Board of obtaining a quorum and to vote its shares of Voting Securities, either in person Directors or by proxy, at any such committee recuse himself or herself from, any meeting or portion thereof at which the Board of stockholders called for the purpose of voting on the election of directors Directors or by any consensual such committee is evaluating and/or taking action with respect to (x) the election ownership of directors, in favor Voting Securities specifically by any member of the election Restricted Group, (y) the exercise of any of the directors nominated in accordance with Company's rights or enforcement of any of the obligations of any member of the Restricted Group under this paragraphStockholders Agreement or (z) any transaction proposed by, or with, any member of the Restricted Group. The Board of Directors or any such committee shall be entitled to take such actions as it shall deem reasonably necessary or appropriate to carry out the provisions of the preceding sentence. (ce) Notwithstanding the foregoing, each Investor The Stockholders shall cease no longer be entitled to have the right to designate, or cause the nomination or election of, (i) more than two members of Third Point Designees serve on the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of Director Termination Date, at 5 NSD\56089.7 which time the Stockholders will cause the Third Point Designees immediately to resign from the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting SecuritiesDirectors. The obligation of In furtherance thereof, each Investor Third Point Designee shall provide, upon election or appointment to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor shall have such right only if and to the extent consistent with the foregoing provisions of this Section 2.01. (e) Each Investor shall promptly provide to the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commissionan executed resignation effective upon a Director Termination Date.

Composition of Board of Directors. (a) Effective at The Board shall consist of up to seven (7) members, except when the Closing Date, there shall be six (6) vacancies on size of the Board of Directors by: (imay need to be increased pursuant to Section 3.1(h) an increase in herein, at which time the Board shall consist of Directors up to include eight fifteen (8) members and (ii)director resignations from Xxxxx Xxxxx, Xxxxxx Xxxxxxxxxx and Xxxxx Xxxxxx15) members. Effective at Stockholders shall have the Closing Date, right to nominate directors as set forth below. All Stockholders shall comply with the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the six vacancies created in accordance with subsections (i) and (ii) provisions of this Section 2.01(a), Article 3 to serve from ensure that nominees are elected to (or removed from) the Closing Date until the end of their respective termsBoard. (b) Thereafter, each of the Investors agrees to vote its shares of Voting Securities to maintain an eight-member Board of Directors and to take such action as may be necessary to cause the Board of Directors to nominate and recommend to the stockholders The Chief Executive Officer of the Company as shall have the proposed members right to nominate one (1) individual to be a director; provided, however, that such individual must be a member of the Board of Directors at any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and Xxx Xxxx and Xxxxxx Xxxxx. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders management team of the Company for (the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the election of directors, in favor of the election of the directors nominated in accordance with this paragraph“Management Director”). (c) Notwithstanding the foregoingICG Holdings, each Investor Inc., a Delaware corporation (“ICG”) or its assignee, shall cease to have the right to designate, or cause the nomination or election of, nominate two (i2) more than two members of the Board of Directors from and after such date as such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Voting Power of all Outstanding Voting Securities or (ii) any member of the Board of Directors from and after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities. The obligation of each Investor individuals to vote its Voting Securities in accordance with this Section 2.01 and the obligation of the Board of Directors hereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, Xxx Xxxx and Xxxxxx Xxxxx as directors shall cease on the date that is one year from the date hereofdirectors. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the Board of Directors shall promptly upon the request of such Investor nominate or elect, as the case may be, a qualified person recommended by such Investor to replace such designee; provided that such Investor 3i shall have such the right only if and to the extent consistent with the foregoing provisions of this Section 2.01nominate one (1) individual to be a director. (e) Each Investor Wall Street Technology Partners LP, a Delaware limited partnership (“Wall Street”), shall promptly provide have the right to nominate one (1) individual to be a director. (f) Wall Street and 3i, acting jointly, and ICG, acting individually, shall each have the right to nominate one (1) additional individual to be a director. Such directors shall be independent and not an Affiliate of any of the Prior Preferred Holders, the Original Series AA Investors or the Series BB Investors. Such directors are referred to collectively as the “Independent Directors.” (g) If at any time Wall Street ceases to own more than fifty percent (50%) of the Series AA Preferred Stock and Series BB Preferred Stock, considered together as a single class, that it owns as of the date hereof (on a Fully-Diluted Basis), Wall Street’s right to appoint an individual to be a director pursuant to Section 3.1(e) shall immediately become null and void. If at any time 3i ceases to own more than fifty percent (50%) of the Series AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), 3i’s right to appoint an individual to be a director pursuant to Section 3.1(d) shall immediately become null and void. If at any time ICG ceases to own more than fifty percent (50%) of the Series AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), ICG’s right to appoint an Independent Director pursuant to Section 3.1(f) shall immediately become null and void and ICG’s right to appoint two individuals to be directors pursuant to Section 3.1(c) shall be modified to permit ICG to appoint one individual to be a director. If at any time ICG ceases to own more than eighty percent (80%) of the Series AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), ICG’s right to appoint two individuals to be directors pursuant to Section 3.1(c) and ICG’s right to appoint an Independent Director pursuant to Section 3.1(f) shall each immediately become null and void. (h) Notwithstanding anything to the Companycontrary contained in this Section 3.1, as upon the redemption of the Series BB Preferred Stock, if the Company may from time shall issue to time reasonably requestthe former holders of the Series BB Preferred Stock a one-year interest bearing note in lieu of payment in full in cash upon the redemption of the Series BB Preferred Stock in accordance with the Company’s Fifth Articles of Amendment and Restatement (the “Fifth Articles”), information regarding such Investor's designees for the holders of a majority of the Series BB Preferred Stock outstanding immediately prior to the redemption shall have the right, upon the redemption of the Series BB Preferred Stock, to designate a majority of the directors of the Board. This right to designate a majority of the directors of the Board of Directors, for inclusion shall continue until the one-year interest bearing note is paid in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by full in cash. All Stockholders and the Company with agree to take any actions necessary or desirable (including increasing the Securities and Exchange Commissionsize of the Board but not including the removal of any directors designated by any such Stockholder) to enforce this right of the Series BB Investors to designate a majority of the directors of the Board.