Common use of Continuing Directors Clause in Contracts

Continuing Directors. Following the election or appointment of the Parent’s designees to the Company Board pursuant to Section 1.3(a) and until the Effective Time, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or, if no Continuing Directors then remain, the other directors shall designate three (3) persons who are not officers, directors, stockholders or designees of Parent or any of its Affiliates to fill such vacancies, and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement.

Continuing Directors. Following Notwithstanding the election or appointment foregoing provisions of this Section 1.3, the parties hereto shall use their respective best efforts to ensure that at least two of the Parent’s designees to members of the Company Board pursuant shall, at all times prior to Section 1.3(a) and until the Effective TimeTime (as defined below), be directors of the Company who were directors of the Company on the date hereof and who are not officers of the Company (the “Continuing Directors”), provided that, if there shall be in office fewer than two Continuing Directors for any reason, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected designated by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall Director to be only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates appointed to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate three (3) two persons to fill such vacancies who are not directors, officers, directors, stockholders employees or designees Affiliates of the Parent or any the Purchaser and are “independent directors” of its Affiliates to fill such vacanciesthe Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) as in effect on the date hereof, and such persons Persons shall be deemed to be Continuing Directors for all purposes of this Agreement. From and after the time, if any, that the Purchaser Designees constitute a majority of the Company Board and prior to the Effective Time, subject to the terms hereof, any (i) amendment or modification of this Agreement, (ii) termination of this Agreement by the Company, (iii) extension of time for performance of any of the obligations of the Parent or the Purchaser hereunder, (iv) waiver of any condition to the Company’s obligations hereunder, (v) exercise or waiver of the Company’s rights or remedies hereunder, (vi) amendment to the Company’s certificate of incorporation or bylaws, (vii) authorization of any agreement between the Company and any of its Subsidiaries, on the one hand, and the Parent, the Purchaser or any of their Affiliates on the other hand, or (viii) taking of any other action by the Company in connection with this Agreement or the transactions contemplated hereby required to be taken by the Company Board may be effected only if there are in office one or more Continuing Directors and such action is approved by a majority of the Continuing Directors then in office. The Continuing Directors shall have, and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current counsel to the Company) and other advisors (which may include current advisors to the Company) at the expense of the Company as determined by the Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this Agreement.

Continuing Directors. Following Notwithstanding the election or appointment provisions of this Section 1.3, the parties hereto shall use their respective reasonable best efforts to ensure that at least two (2) of the Parent’s designees to members of the Company Board pursuant shall, at all times following the Appointment Time and prior to Section 1.3(a) and until the Effective TimeTime (as defined in Section 2.3), be directors of the Company who were directors of the Company on the date hereof (the “Continuing Directors”); provided, however, that, if there shall be in office less than two Continuing Directors for any reason, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected designated by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled Director to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates to fill such vacancy, vacancy and such person shall be deemed to be a an Continuing Director for all purposes of this Agreement, or, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate three (3) two persons to fill such vacancies who are will not be directors, officers, directors, stockholders employees or designees Affiliates of Parent or any of its Affiliates to fill such vacancies, Purchaser and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement. From and after the time, if any, that Purchaser Designees constitute a majority of the Company Board and prior to the Effective Time, subject to the terms hereof, any amendment or modification of this Agreement, any termination of this Agreement by the Company, any extension of time for performance of any of the obligations of Parent or Purchaser hereunder, and any waiver of any condition to the Company’s obligations hereunder or any of the Company’s rights hereunder may be effected only if (in addition to the approval of the Company Board as a whole) there are in office one or more Continuing Directors and such action is approved by at least one of the Continuing Directors then in office. Following the Appointment Time and prior to the Effective Time, neither Parent nor Purchaser shall take any other action to remove any Continuing Director absent cause.

Continuing Directors. At all times prior to the Effective Time (as defined in Section 1.2), the Company Board shall always have at least two Continuing Directors (as defined below). Subject to applicable Law, the Company shall promptly take all action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.1(g)(ii) and shall include in the Schedule 14D-9 mailed to stockholders such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.1(g)(ii). The Buyer will supply the Company any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Following the election or appointment of the Parent’s designees Buyer Designees to the Company Board pursuant to Section 1.3(a) this section, and until the Effective Time, the Company Board approval of a majority of the Continuing Directors shall at all times include, and be required to authorize: (A) any amendment to or termination of this Agreement on behalf of the Company, ; (B) any extension of time for the Parent and performance of any of the Purchaser shall use their reasonable best efforts obligations or other acts of the Buyer or the Acquisition Sub; (C) any waiver of compliance with any covenant or obligation of the Buyer or the Acquisition Sub or any condition to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee any obligation of the Company Board and the board or any waiver of directors (or similar body) of each Subsidiary any right of the Company shall at all times include, under this Agreement; and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of (D) any other action by the Company Board and in connection with this Agreement or the board of directors (or similar body) of each Subsidiary of transactions contemplated hereby required to be taken by the Company to at all times include, at least one (1) Continuing DirectorBoard. A “Continuing Director” shall mean a (1) any member of the Company Board, while such person who is a member of the Company Board as of the Agreement Date or a person selected by the Continuing Directors then in officeBoard, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled to designate a person who is not an officerAffiliate, director, stockholder representative or designee of Parent the Buyer or any the Acquisition Sub and who was a member of its Affiliates the Company Board prior to fill such vacancythe date of the Agreement, and such person shall be deemed to be (2) any successor of a Continuing Director for all purposes while such successor is a member of this Agreementthe Company Board, orwho is not an Affiliate, if no representative or designee of the Buyer or the Acquisition Sub and was recommended or elected to succeed such Continuing Directors then remain, the other directors shall designate three (3) persons who are not officers, directors, stockholders or designees Director by a majority of Parent or any of its Affiliates to fill such vacancies, and such persons shall be deemed to be Continuing Directors for all purposes of this AgreementDirectors.

Continuing Directors. Following Notwithstanding the election or appointment foregoing provisions of this Section 1.3, the parties hereto shall use their respective best efforts to ensure that at least two (2) of the Parent’s designees to members of the Company Board pursuant shall, at all times prior to Section 1.3(a) and until the Effective TimeTime (as defined below), be directors of the Company who were directors of the Company on the date hereof and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 4200(a)(15) as in effect on the date hereof (the “Continuing Directors”), provided that if there shall be in office fewer than two (2) Continuing Directors for any reason, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected designated by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three (3) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates Director to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate three two (32) persons to fill such vacancies who are not directors, officers, directors, stockholders employees or designees Affiliates of the Parent or any the Purchaser and are “independent directors” of its Affiliates to fill such vacanciesthe Company for purposes of Nasdaq Marketplace Rule 4200(a)(15) as in effect on the date hereof, and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement. From and after the time, if any, that the Purchaser Designees constitute a majority of the Company Board and prior to the Effective Time, subject to the terms hereof, any (i) amendment or modification of this Agreement, (ii) termination of this Agreement by the Company, (iii) extension of time for performance of any of the obligations of the Parent or the Purchaser hereunder, (iv) waiver of any condition to the Company’s obligations hereunder, (v) exercise or waiver of the Company’s rights or remedies hereunder, (vi) amendment to the Company’s certificate of incorporation or bylaws, (vii) authorization of any agreement between the Company and any of its subsidiaries, on the one hand, and the Parent, the Purchaser or any of their Affiliates on the other hand, or (viii) taking of any other action by the Company in connection with this Agreement or the transactions contemplated hereby required to be taken by the Company Board may be effected only if there are in office one or more Continuing Directors and such action is approved by a majority of the Continuing Directors then in office. The Continuing Directors shall have, and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current counsel to the Company) and other advisors at the expense of the Company as determined by the Continuing Directors, and shall have the authority to institute any action on behalf of the Company to enforce performance of this Agreement.

Continuing Directors. Following the election or appointment of the Parent’s designees Prior to the Company Board pursuant to Section 1.3(a) and until the Effective TimeClosing, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three (3) Continuing Directors and each committee designate those four current members of the Company Board and listed on Schedule 7(a) as the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member members of the Company Board as of the date of this Agreement Date that will continue on the Company Board following the Closing, with such members allocated among the classes of directors on the Company Board as set forth on Schedule 5(a)(i) (each such individual, and any successor thereto, substitute therefor or replacement thereof designated by a person selected by majority of the Continuing Directors then on the Company Board (and, if designated prior to the Closing, approved by a Majority of the Buyers, which approval shall not be unreasonably withheld) being referred to herein as a “Continuing Director” and collectively as the “Continuing Directors”). After the Company Shareholders Meeting, in officeconnection with any annual meeting of the shareholders of the Company or any special meeting of the shareholders of the Company at which directors are to be elected following the Closing, each until and including the 2011 annual meeting of whom the shareholders of the Company (and any special meetings of shareholders held during such period), the Corporate Governance and Nominating Committee of the Company Board shall be an independent director recommend the nomination of, and the Company Board shall nominate for purposes of applicable Securities Exchange Rules and shall be eligible to serve on reelection (or election), recommend that the Company’s audit committee under shareholders vote in favor of election to the Exchange Act Company Board of, and Securities Exchange Rules andsolicit proxies in favor of the election of, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions theretoCompany and the Company Board shall otherwise take all actions as are reasonably necessary or desirable to elect, those Continuing Directors whose terms of office expire at such shareholder meeting (or, in the discretion of the Continuing Directors, such replacements thereof or successors thereto designated by a majority of the Continuing Directors then on the Company Board) to the Company Board; provided, however however, that, in the event that if the number Company Board determines in good faith, after consultation with outside legal counsel, that its nomination of a particular Continuing Directors is reduced to less than three (3) prior Director would constitute a breach of its fiduciary duties to the Effective TimeCompany’s shareholders, any remaining Continuing Directors (or Continuing Director, if there then the Company shall be only one (1) remaining) shall be entitled nominate another individual designated for election to designate the Company Board by a person who is not an officer, director, stockholder or designee majority of Parent or any of its Affiliates to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or, if no the Continuing Directors then remain, on the other directors Company Board (subject in each case to this proviso) and the Company Board and the Company shall designate three (3) persons who are not officers, directors, stockholders or designees take all of Parent or any the actions required by this Section 7 with respect to the election at such shareholder meeting of its Affiliates to fill such vacancies, and such persons shall be deemed to be substitute Continuing Directors for all purposes of this AgreementDirector.

Continuing Directors. Following Notwithstanding the election or appointment provisions of the Parent’s designees to the Company Board pursuant to Section 1.3(a) and until the Effective Time2.4(a), the Company Board shall at all times include, and the Company, the Parent and the Purchaser parties hereto shall use their respective reasonable best efforts to cause the Company Board to at all times include, ensure that at least three (3) Continuing Directors and each committee of the members of the Company Board shall, at all times following the Appointment Time and prior to the board of Effective Time, be directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee who were directors of the Company Board and on the board of directors date hereof (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions theretoDirectors”); provided, however that however, that, if the number of Continuing Directors is reduced to there shall be in office less than three (3) prior to Continuing Directors for any reason, the Effective Time, any Company Board shall cause a Person designated by the remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled Director to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates Person to fill such vacancy, vacancy and such person designee shall be deemed to be a Continuing Director for all purposes of this Agreement, or, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate three (3) persons Persons to fill such vacancies who are will not be directors, officers, directors, stockholders employees or designees Affiliates of Parent or any of its Affiliates to fill such vacancies, Merger Sub and such persons designees shall be deemed to be Continuing Directors for all purposes of this Agreement. From and after the time, if any, that the Merger Sub Designees constitute a majority of the Company Board and prior to the Effective Time, subject to the terms hereof, any amendment or modification of this Agreement, any termination of this Agreement by the Company, any extension of time for performance of any of the obligations of Parent or Merger Sub hereunder, and any waiver of any condition to the Company’s obligations hereunder or any of the Company’s rights hereunder may be effected only if (in addition to such action being approved by the Company Board as a whole) there are in office three (3) or more Continuing Directors and such action is approved by at least two (2) of the Continuing Directors then in office. Following the Appointment Time and prior to the Effective Time, neither Parent nor Merger Sub shall take any other action to remove any Continuing Director without cause.

Continuing Directors. Following the election or appointment of the Parent’s designees to the Company Board pursuant to Section 1.3(a) and until the Effective Time, the Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause the Company Board to at all times include, at least three two (32) Continuing Directors and each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company shall at all times include, and the Company, the Parent and the Purchaser shall use their reasonable best efforts to cause each committee of the Company Board and the board of directors (or similar body) of each Subsidiary of the Company to at all times include, at least one (1) Continuing Director. A “Continuing Director” shall mean a person who is a member of the Company Board as of the Agreement Date or a person selected by the Continuing Directors then in office, each of whom shall be an independent director for purposes of applicable Securities Exchange Rules and shall be eligible to serve on the Company’s audit committee under the Exchange Act and Securities Exchange Rules and, at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto; provided, however that if the number of Continuing Directors is reduced to less than three two (32) prior to the Effective Time, any remaining Continuing Directors (or Continuing Director, if there shall be only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any of its Affiliates to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or, if no Continuing Directors then remain, the other directors shall designate three (3) persons who are not officers, directors, stockholders or designees of Parent or any of its Affiliates to fill such vacancies, and such persons shall be deemed to be Continuing Directors for all purposes of this Agreement.