Election of Buyer Designees. From and after the time the Acquisition Sub accepts Shares tendered pursuant to the Offers (the “Acceptance Time”), the Buyer shall be entitled to designate such number of members of the Company Board (the “Buyer Designees”), rounded up to the nearest whole number, as will give the Buyer representation on the Company Board equal to the product of the total number of members of the Company Board (after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the voting power of the Shares beneficially owned by the Buyer and the Acquisition Sub at such time (including Shares so accepted for payment) bears to the total voting power of the Shares then outstanding; provided, that in no event shall Buyer have the right to designate any member of the Company Board unless and until Acquisition Sub has accepted for payment Shares tendered pursuant to the Offers representing a majority of the total outstanding voting power of the Company on a fully diluted basis (and therefore, at such time as the Buyer has the right to designate any Buyer Designees, the Buyer shall have the right to designate no less than a majority of the members of the Company Board). Subject to applicable Law, the Company shall take all actions necessary, including by increasing the size of the Company Board or securing the resignations of such number of the Company’s incumbent directors, or both, to enable the Buyer Designees to be so elected or appointed to the Company Board and to cause the Buyer Designees to be so elected or appointed. From time to time after the Acceptance Time, the Company also shall take all actions necessary to cause the Buyer Designees to constitute substantially the same percentage (rounding up where appropriate) as is on the Company Board (i) on each committee of the Company Board and (ii) each board of directors of each of the Company’s subsidiaries, each to the fullest extent permitted by all applicable Laws.
