Common use of Composition of Board of Directors Clause in Contracts

Composition of Board of Directors. (a) Upon the acceptance for payment of, and payment by Merger Sub in accordance with the Offer for, at least a majority of the issued and outstanding shares of Common Stock on a fully diluted basis pursuant to the Offer, Purchaser shall be entitled to designate such number of directors on the Board of Directors, rounded up to the next whole number, as will give Purchaser representation on the Board of Directors equal to the product of (i) the number of authorized directors on the Board of Directors (giving effect to the directors elected pursuant to this Section 1.4) and (ii) the percentage that the ----------- number of shares of Common Stock purchased by Merger Sub or Purchaser or any affiliate thereof bears to the aggregate number of shares of Common Stock then outstanding (the "Percentage"), and the Company shall, upon the election and ---------- request by Purchaser, promptly increase the size of the Board of Directors and/or secure the resignations of such number of directors as is necessary to enable Purchaser's designees to be elected to the Board of Directors and shall cause Purchaser's designees to be so elected. At the request of Purchaser, the Company will cause such individuals designated by Purchaser to constitute the same Percentage of (i) each committee of the Board, (ii) the board of directors of each Subsidiary (as defined in Section 11.8) of the Company and (iii) the ------------ committees of each such board of directors. The Company's obligations to appoint designees to the Board of Directors and committees thereof shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all appropriate action required pursuant to such Section 14(f) and Rule 14f-1 to effect any such election and shall, subject to the next succeeding sentence, include in the Schedule 14D-9 the information required by Section 14(f) and Rule 14f-1. Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding the foregoing, the parties hereto shall use their respective reasonable efforts to ensure that at least three of the members of the Board of Directors shall at all times prior to the Effective Time be Continuing Directors (as defined in Section 1.4(b)). -------------- (b) After the time that Purchaser's designees constitute at least a majority of the Board of Directors and until the Effective Time (as defined in Section 2.3), any (i) amendment or termination of this Agreement by or on behalf ----------- of the Company, (ii) exercise or waiver of any of the Company's rights or remedies hereunder, extension of time for the performance or waiver of any of the obligations or other acts of Purchaser or Merger Sub hereunder or (iii) other action by the Company in connection with this Agreement, shall require the approval of a majority of then-serving directors, if any, who are not designees of Purchaser (the "Continuing Directors"), except to the extent that applicable -------------------- law requires that such action be acted upon by the full Board of Directors, in which case such action will require the concurrence of both a majority of the Board of Directors and a majority of the Continuing Directors. If a vacancy among the Continuing Directors exists, the remaining Continuing Director or Directors shall be entitled to designate persons to fill such vacancies, who shall be deemed Continuing Directors for purposes of this Agreement. In the event there is only one remaining Continuing Director and he or she resigns or is removed, or if all Continuing Directors resign or are removed, he, she or they, as applicable, shall be entitled to designate his, her or their successors, as the case may be, each of whom shall be deemed a Continuing Director for purposes of this Agreement. The Board of Directors shall not delegate any matter set forth in this Section 1.4 to any committee of the Board of Directors.

Composition of Board of Directors. (a) Upon Effective at the acceptance for payment ofClosing Date, and payment by Merger Sub in accordance with the Offer for, at least a majority of the issued and outstanding shares of Common Stock on a fully diluted basis pursuant to the Offer, Purchaser there shall be entitled to designate such number of directors on the Board of Directors, rounded up to the next whole number, as will give Purchaser representation six (6) vacancies on the Board of Directors equal to the product of by: (i) the number of authorized directors on an increase in the Board of Directors to include eight (giving effect 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 directors elected pursuant to this Section 1.4six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the percentage that Closing Date until the ----------- number end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Common Stock purchased by Merger Sub or Purchaser or any affiliate thereof bears Voting Securities to the aggregate number maintain an eight-member Board of shares of Common Stock then outstanding (the "Percentage"), Directors and the Company shall, upon the election and ---------- request by Purchaser, promptly increase the size of to take such action as may be necessary to cause the Board of Directors and/or secure the resignations of such number of directors as is necessary to enable Purchaser's designees to be elected nominate and recommend to the Board of Directors and shall cause Purchaser's designees to be so elected. At the request of Purchaser, the Company will cause such individuals designated by Purchaser to constitute the same Percentage of (i) each committee of the Board, (ii) the board of directors of each Subsidiary (as defined in Section 11.8) stockholders of the Company and (iii) as the ------------ committees of each such board of directors. The Company's obligations to appoint designees to the Board of Directors and committees thereof shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all appropriate action required pursuant to such Section 14(f) and Rule 14f-1 to effect any such election and shall, subject to the next succeeding sentence, include in the Schedule 14D-9 the information required by Section 14(f) and Rule 14f-1. Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding the foregoing, the parties hereto shall use their respective reasonable efforts to ensure that at least three of the proposed members of the Board of Directors shall at all times prior 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 Effective Time be Continuing Directors (as defined election of directors, in Section 1.4(b)). --------------favor of the election of the directors nominated in accordance with this paragraph. (bc) After Notwithstanding the time that Purchaser's designees constitute at least a majority 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 until the Effective Time (after such date as defined in Section 2.3), any (i) amendment or termination of this Agreement by or on behalf ----------- such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Company, Voting Power of all Outstanding Voting Securities or (ii) exercise or waiver of any of the Company's rights or remedies hereunder, extension of time for the performance or waiver of any of the obligations or other acts of Purchaser or Merger Sub hereunder or (iii) other action by the Company in connection with this Agreement, shall require the approval of a majority of then-serving directors, if any, who are not designees of Purchaser (the "Continuing Directors"), except to the extent that applicable -------------------- law requires that such action be acted upon by the full Board of Directors, in which case such action will require the concurrence of both a majority member of the Board of Directors from and a majority after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Continuing DirectorsVoting Power of all Outstanding Voting Securities. If a vacancy among The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the Continuing obligation of the Board of Directors existshereunder 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 remaining Continuing Director or Board of Directors shall be entitled to designate persons to fill promptly upon the request of such vacancies, who shall be deemed Continuing Directors for purposes of this Agreement. In the event there is only one remaining Continuing Director and he Investor nominate or she resigns or is removed, or if all Continuing Directors resign or are removed, he, she or they, as applicable, shall be entitled to designate his, her or their successorselect, as the case may be, each of whom a qualified person recommended by such Investor to replace such designee; provided that such Investor shall be deemed a Continuing Director for purposes have such right only if and to the extent consistent with the foregoing provisions of this Agreement. The Board of Directors Section 2.01. (e) Each Investor shall not delegate any matter set forth in this Section 1.4 promptly provide to any committee of 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) Upon Prior to the acceptance for payment of, and payment by Merger Sub in accordance with date on which the Offer for, at least Company consummates a majority of the issued and outstanding shares bona fide underwritten public offering of Common Stock on a fully diluted basis pursuant to an effective registration statement under the Offer, Purchaser shall be entitled to designate such number of directors on the Board of Directors, rounded up to the next whole number, as will give Purchaser representation on Securities Act (other than Form S-8 or any successor or similar form) (an "IPO"): (i) the Board of Directors equal to of the product Company (the "Board") shall consist of seven (i7) the number of authorized directors on the Board of Directors (giving effect to the directors elected pursuant to this Section 1.4) and members; (ii) stockholders shall have the percentage that the ----------- number of shares of Common Stock purchased by Merger Sub or Purchaser or any affiliate thereof bears right to the aggregate number of shares of Common Stock then outstanding (the "Percentage"), and the Company shall, upon the election and ---------- request by Purchaser, promptly increase the size of the Board of Directors and/or secure the resignations of such number of nominate directors as is necessary to enable Purchaser's designees to be elected to the Board of Directors and shall cause Purchaser's designees to be so elected. At the request of Purchaser, the Company will cause such individuals designated by Purchaser to constitute the same Percentage of (i) each committee of the Board, (ii) the board of directors of each Subsidiary (as defined in Section 11.8) of the Company and set forth below; (iii) the ------------ committees of each such board of directors. The Company's obligations to appoint designees to the Board of Directors and committees thereof shall be subject to Section 14(f) section 3.4(g), all Stockholders shall comply with the provisions of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all appropriate action required pursuant to such Section 14(f) and Rule 14f-1 to effect any such election and shall, subject to the next succeeding sentence, include in the Schedule 14D-9 the information required by Section 14(f) and Rule 14f-1. Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding the foregoing, the parties hereto shall use their respective reasonable efforts this Article 3 to ensure that at least three of the members of the Board of Directors shall at all times prior to the Effective Time be Continuing Directors (as defined in Section 1.4(b)). -------------- (b) After the time that Purchaser's designees constitute at least a majority of the Board of Directors and until the Effective Time (as defined in Section 2.3), any (i) amendment are appointed or termination of this Agreement by or on behalf ----------- of the Company, (ii) exercise or waiver of any of the Company's rights or remedies hereunder, extension of time for the performance or waiver of any of the obligations or other acts of Purchaser or Merger Sub hereunder or (iii) other action by the Company in connection with this Agreement, shall require the approval of a majority of then-serving directors, if any, who are not designees of Purchaser (the "Continuing Directors"), except to the extent that applicable -------------------- law requires that such action be acted upon by the full Board of Directors, in which case such action will require the concurrence of both a majority of the Board of Directors and a majority of the Continuing Directors. If a vacancy among the Continuing Directors exists, the remaining Continuing Director or Directors shall be entitled to designate persons to fill such vacancies, who shall be deemed Continuing Directors for purposes of this Agreement. In the event there is only one remaining Continuing Director and he or she resigns or is removed, or if all Continuing Directors resign or are removed, he, she or they, as applicable, shall be entitled to designate his, her or their successorselected, as the case may be, each to (or removed from) the Board; and (iv) the rights described in the provisions of whom this Article 3 are personal to the party named in such provision and cannot be assigned. (b) Nominees for election to the Board pursuant to Sections 3.1(c) and (d) will be chosen by majority vote of the persons or group entitled to make such nomination under this Agreement that continue to own Securities on such date. (c) Prior to the earlier of (i) the date on which the Company consummates an IPO and (ii) the date on which the holders of Common Stock on the date hereof and their Permitted Transferees no longer beneficially own (as such term is defined in the Exchange Act) at least 50% of the shares of Common Stock held by such holders of Common Stock on the date hereof (after giving effect to any Recapitalization Events), the Common Stockholders on the date hereof shall have the right to designated one (1) individual to be director (the "Common Stock Director"). (d) Prior to the date on which the Company consummates a Qualified Public Offering, the Series E Investors shall have the right to nominate four (4) individuals to be directors (each, a "Series E Director") with Sandler Capital Management and its Affiliates (collectively, "Sandler") having the right to designate two (2) of the four directors and DB Capital Partners, SBIC, L.P. and its Affiliates (collectively, "DBCP") having the right to designate two (2) of the four directors. Notwithstanding anything herein to the contrary, if all of the conditions to the Second Closing Date and the Third Closing Date, as the case may be (as defined in the Stock Purchase Agreement) have been satisfied and if Sandler or DBCP, as the case may be, fails to perform any funding obligations to purchase the Series E Preferred Stock at the Second Closing Date and the Third Closing Date, as the case may be, Sandler or DBCP, as the case may be, will lose the right to designate one director. (e) Prior to the date of consummation of an IPO, by unanimous written consent, the Common Stock Director and Series E Directors shall have the right to nominate one (1) individual to be director (the "Independent Director"). Such director shall be deemed independent and not an Affiliate of the Common Stock Director or Series E Investors or their respective Permitted Transferees. (f) Prior to the date of consummation of an IPO, one (1) director shall be the President and Chief Executive Officer of the Company (the "CEO Director"). (g) Prior to the earlier of (i) the date of consummation of an IPO and (ii) the date on which the Series E Investors no longer own in the aggregate at lest 25% of the outstanding Common Stock on a Continuing Director Fully-Diluted Basis, the Chairman of the Board shall be selected by the majority of the voting power of the Series E Investors. (h) Following the date on which the Company consummates a Qualified Public Offering and until such date as Sandler or DBCP, as the case may be, no longer own at least 2.5% of the shares of Common Stock then outstanding or 25% of the Common Stock (through the conversion of the Series E Preferred Stock) originally purchased by Sandler or DBCP, as the case may be, under the Stock Purchase Agreement, (x) each Stockholder agrees to vote the shares of Common Stock owned of record by them in favor of one nominee for purposes of this Agreement. The Board of Directors shall not delegate any matter set forth in this Section 1.4 director named by Sandler and one nominee for director named by DBCP and (y) the Company shall, subject to any committee the fiduciary duties of the Board of Directors, cause each director named by Sandler and DBCP to be nominated for election. Following the date on which the Company consummates an IPO and until the earlier of such date as: (i) the consummation of a Qualified Public Offering; and (ii) the Common Stockholders no longer own at least 25% of the aggregate shares of Common Stock held by them as of the date hereof, (x) the Series E Investors each agree to vote the shares of Common Stock owned of record by them in favor of each of the Independent Director, the CEO Director and the Common Stock Director and (y) the Company shall, subject to the fiduciary duties of the Board of Directors, cause each such director to be nominated for election. (i) Upon a Transfer by Sandler or DBCP, as the case may be, of 50% or more of their respective shares of Series E Preferred Stock (or underlying shares of Common Stock), the transferee in such Transfer shall be entitled to exercise all of Sandler's or DBCP's, as the case may, director designation rights under this section 3.1.