Common use of Nomination and Voting Clause in Contracts

Nomination and Voting. Investor Director; Observer . (a) For so long as the 20.0% Beneficial Ownership Requirement is satisfied, the Investor shall be entitled to designate for nomination one (1) nominee of the Board, subject to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”). (b) In the event that the Investor nominates an Investor Nominee, the Company shall include the Investor Nominee in its slate of nominees for election to the Board at each annual or special meeting of the stockholders of the Company at which Directors are to be elected and at which such Investor Nominee’s seat is subject to election and recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at any such annual or special meeting of the Company’s stockholders, subject to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee is eligible to be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Company. (c) If an Investor Nominee then serving as a Director, if any, (the “Investor Director”) ceases to serve on the Board for any reason (other than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor Nominee. (d) In the absence of any nomination from the Investor at a time when it has the right to nominate a director as specified above, the Investor Director previously nominated by the Investor and then serving (if any) shall be the Investor Nominee (subject to the satisfaction of the qualification requirements for an Investor Nominee set forth herein). Termination of Investor Board Rights . If at any time the 20.0% Beneficial Ownership Requirement is not satisfied, then the Investor Director shall immediately resign, and the Investor shall cause such Investor Director to immediately resign, from his or her position as a Director effective as of the receipt of such notice.

Nomination and Voting. Investor Director; Observer . (a) For so long as the 20.0% Beneficial Ownership Requirement is satisfied, the Investor shall be entitled to designate for nomination one (1) nominee of the Board, subject to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”). (b) In the event that the Investor nominates an Investor NomineeSimultaneously herewith, the Company shall include the Investor Nominee in its slate will elect three designees of nominees for election Purchaser to the Board ("Purchaser Designees", one of whom will be named Chairman of the Board and each of which will be elected to a different class of directors to the extent the Board is divided into classes. The designee to be so named will be (i) Xxxxxx X. Xxxxxxx, (ii) if Xx. Xxxxxxx is unable or unwilling to serve, either Xxxxxx X. XxXxxxxx or Xxxxxx X. Xxxxxx (as Purchaser designates), or (iii) if none of them is able or willing to serve, a nominee of Purchaser reasonably acceptable to the Company. The Company, at each annual or special meeting of the stockholders of the Company at which Directors directors are elected, will cause to be nominated for election as directors of the Company such number of persons determined in accordance with Section 3.1(c) who shall each be designated by Purchaser. The Company will solicit proxies from its stockholders for such nominees, vote all management proxies in favor of such nominees, except for such proxies that specifically indicate to the contrary and otherwise use its best efforts to cause such nominees to be elected and at which such Investor Nominee’s seat is subject to election and recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at Board as herein contemplated. (b) If any such annual or special meeting Purchaser Designee ceases to be a director of the Company’s stockholders, subject to the Directors’ fiduciary duties. The Company and the Board shall take all reasonably necessary actions to ensure that, at all times when the Investor Nominee is eligible to be appointed or nominated, there are sufficient vacancies on the Board to permit the election of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required Company will promptly upon the request of Purchaser cause a person designated by Purchaser to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Companyreplace such director. (c) If an Investor Nominee then serving The number of Purchaser Designees will be such number no greater than three as a DirectorPurchaser may from time to time designate, if any, (one of whom will be the “Investor Director”) ceases to serve on Chairman of the Board for any reason (other than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor NomineeBoard. (d) In The Company covenants that the absence total number of seats on the Board (including any nomination from vacant seats) will in no event exceed 15. (e) At all times after the Investor at a time when it has the right to nominate a director as specified abovedate hereof, the Investor Director previously nominated by Company shall ensure that at least one Purchaser Designee is a member of each committee of the Investor and then serving Board other than the nominating committee. (if anyf) shall be the Investor Nominee (subject Persons elected to the satisfaction Board by holders of the qualification requirements for an Investor Nominee set forth herein). Termination of Investor Board Rights . If at any time the 20.0% Beneficial Ownership Requirement is not satisfied, then the Investor Director shall immediately resign, and the Investor shall cause such Investor Director Series A Preferred pursuant to immediately resign, from his or her position as a Director effective as Section 4(d) of the receipt Company's Certificate of such noticeDesignations for the Series A Preferred will be deemed to be designees of Purchaser for purposes of this Section 3.1.

Nomination and Voting. Investor Director; Observer . (a) For so long The Company will nominate for election as directors of the 20.0% Beneficial Ownership Requirement Company up to the following numbers of persons designated by Purchaser (the “Purchaser Designees”): (i) if Purchaser is satisfiedthe beneficial owner of 1,760,000 or more shares of Series A Preferred, two Purchaser Designees; (ii) if Purchaser is the Investor shall beneficial owner of at least 880,000 but less than 1,760,000 shares of Series A Preferred, one Purchaser Designee; (iii) if Purchaser is the beneficial owner of at least one but less than 880,000 shares of Series A Preferred, one Purchaser Designee, provided, that such Purchaser Designee must be Xxxxxx X. XxXxxxxx, and Xx. XxXxxxxx must agree to serve as such Purchaser Designee; and (iv) in addition to any Purchaser Designee or Designees Purchaser is entitled to designate for nomination pursuant to clauses (i) through (iii) above, if Purchaser is the beneficial owner of at least 1,000,000 shares of Common Stock, one (1Purchaser Designee. If Purchaser is entitled to designate more than one Purchaser Designee, each will be nominated to be elected to a different class of directors to the extent the Board is divided into classes. The share numbers set forth in this Section 5.1(a) nominee of the Board, are subject to adjustment for any stock split, combination, stock dividend or similar event with respect to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”)shares. (b) In As of the event that the Investor nominates an Investor Nomineeeffective date of this Agreement, the Company shall include the Investor Nominee in its slate of nominees for election Purchaser is entitled to designate three Purchaser Designees, and currently Xxxxxx X. XxXxxxxx and Xxxxx X. Xxxxxx serve on the Board as Purchaser Designees. The Company and Purchaser acknowledge that Xxxxxx X. Xxxxxxx, who serves as Chairman of the Board, is not a Purchaser Designee. (c) The Company, at each annual or special meeting of the stockholders shareholders of the Company at which Directors directors are elected, will, to the extent requested by Purchaser, cause to be nominated for election as directors of the Company the appropriate number of Purchaser Designees as determined pursuant to Section 3.1(a), which in no event shall exceed three, provided, that if a class of only three or fewer directors stands for election at any meeting, no more than one Purchaser Designee shall stand for election at such meeting to serve as a member of such class. The Company will solicit proxies from its shareholders for such nominees, vote all management proxies in favor of such nominees, except for such proxies that specifically indicate to the contrary and otherwise use its best efforts to cause such nominees to be elected and at which such Investor Nominee’s seat is subject to election and recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at Board as herein contemplated. (d) If any such annual or special meeting Purchaser Designee ceases to be a director of the Company’s stockholders, subject the Company will promptly upon the request of Purchaser cause a person designated by Purchaser to replace such director. If Purchaser fails to designate for election at a meeting of shareholders the full number of Purchaser Designees to which the Purchaser is entitled pursuant to Section 3.1(a), Purchaser will thereafter be permitted to designate additional Purchaser Designees, up to the Directors’ fiduciary duties. The Company additional number of Purchaser Designees that would be permitted pursuant to Section 3.1(a), and the Board shall take all reasonably necessary actions to ensure thatCompany will, at all times when promptly upon the Investor Nominee is eligible request of Purchaser cause such additional Purchaser Designees to be elected or appointed or nominated, there are sufficient vacancies on the Board to permit the election a director of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Company. (ce) If an Investor Nominee then serving The Company covenants that the total number of seats on the Board (including any vacant seats) will in no event exceed 15 so long as Purchaser is entitled to designate at least one Purchaser Designee. (f) At all times after the date hereof, if Purchaser is entitled to designate at least one Purchaser Designee, and to the extent permitted by law and applicable rules of the New York Stock Exchange, the Company shall ensure that at least one Purchaser Designee is a member of any committee of the Board requested by Purchaser, other than any special committee of directors formed as a Directorresult of any conflict of interest arising from any Purchaser Designee’s relationship with Purchaser. (g) So long as Purchaser beneficially owns a majority of the outstanding shares of Series A Preferred, if any, persons elected to the Board by holders of the Series A Preferred pursuant to Article IV.C.4(d) of the Restated Articles (the “Investor DirectorDefault Designees”) ceases will be deemed to serve on the Board be Purchaser Designees for any reason purposes of Sections 3.1(d) through (other g). If Purchaser beneficially owns less than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor Nominee. (d) In the absence of any nomination from the Investor at a time when it has the right to nominate a director as specified above, the Investor Director previously nominated by the Investor and then serving (if any) shall be the Investor Nominee (subject to the satisfaction majority of the qualification requirements for an Investor Nominee set forth herein). Termination outstanding shares of Investor Board Rights . If at any time the 20.0% Beneficial Ownership Requirement is not satisfiedSeries A Preferred, then the Investor Director shall immediately resign, and the Investor shall cause such Investor Director Default Designees will not be deemed to immediately resign, from his or her position as a Director effective as be Purchaser Designees for purposes of the receipt of such noticeSection 3.1(d) through (g).

Nomination and Voting. Investor Director; Observer . (a) For so long The Company will nominate for election as directors of the 20.0% Beneficial Ownership Requirement Company up to the following numbers of persons designated by Purchaser (the “Purchaser Designees”): (i) if Purchaser is satisfiedthe beneficial owner of 1,760,000 or more shares of Series A Preferred, two Purchaser Designees; (ii) if Purchaser is the Investor shall beneficial owner of at least 880,000 but less than 1,760,000 shares of Series A Preferred, one Purchaser Designee; (iii) if Purchaser is the beneficial owner of at least one but less than 880,000 shares of Series A Preferred, one Purchaser Designee, provided, that such Purchaser Designee must be Xxxxxx X. XxXxxxxx, and Xx. XxXxxxxx must agree to serve as such Purchaser Designee; and (iv) in addition to any Purchaser Designee or Designees Purchaser is entitled to designate for nomination pursuant to clauses (i) through (iii) above, if Purchaser is the beneficial owner of at least 1,000,000 shares of Common Stock, one (1Purchaser Designee. If Purchaser is entitled to designate more than one Purchaser Designee, each will be nominated to be elected to a different class of directors to the extent the Board is divided into classes. The share numbers set forth in this Section 5.1(a) nominee of the Board, are subject to adjustment for any stock split, combination, stock dividend or similar event with respect to such Person’s satisfaction of the Director Qualification Standards, the provisions of Section 2.03 and the recommendation of the Nominating Committee, which recommendation shall not be unreasonably withheld, conditioned or delayed, (such person, the “Investor Nominee”)shares. (b) In As of the event that the Investor nominates an Investor Nomineeeffective date of this Agreement, the Company shall include the Investor Nominee in its slate of nominees for election Purchaser is entitled to designate three Purchaser Designees, and currently Xxxxxx X. XxXxxxxx and Xxxxx X. Xxxxxx serve on the Board as Purchaser Designees. The Company and Purchaser acknowledge that Xxxxxx X. Xxxxxxx, who serves as Chairman of the Board, is not a Purchaser Designee. (c) The Company, at each annual or special meeting of the stockholders shareholders of the Company at which Directors directors are elected, will, to the extent requested by Purchaser, cause to be nominated for election as directors of the Company the appropriate number of Purchaser Designees as determined pursuant to Section 3.1(a), which in no event shall exceed three, provided, that if a class of only three or fewer directors stands for election at any meeting, no more than one Purchaser Designee shall stand for election at such meeting to serve as a member of such class. The Company will solicit proxies from its shareholders for such nominees, vote all management proxies in favor of such nominees, except for such proxies that specifically indicate to the contrary and otherwise use its best efforts to cause such nominees to be elected and at which such Investor Nominee’s seat is subject to election and recommend that the Company’s stockholders vote in favor of the election of such Investor Nominee at Board as herein contemplated. (d) If any such annual or special meeting Purchaser Designee ceases to be a director of the Company’s stockholders, subject the Company will promptly upon the request of Purchaser cause a person designated by Purchaser to replace such director. If Purchaser fails to designate for election at a meeting of shareholders the full number of Purchaser Designees to which the Purchaser is entitled pursuant to Section 3.1(a), Purchaser will thereafter be permitted to designate additional Purchaser Designees, up to the Directors’ fiduciary duties. The Company additional number of Purchaser Designees that would be permitted pursuant to Section 3.1(a), and the Board shall take all reasonably necessary actions to ensure thatCompany will, at all times when promptly upon the Investor Nominee is eligible request of Purchaser cause such additional Purchaser Designees to be elected or appointed or nominated, there are sufficient vacancies on the Board to permit the election a director of the Investor Nominee as a Director. For the avoidance of doubt, the Investor shall not be required to comply with the advance notice provisions generally applicable to the nomination of Directors set forth in the By-laws so long as the Investor provides reasonable advance notice to the Company of the Investor Nominee prior to the mailing of the proxy statement by the Company. (ce) If an Investor Nominee then serving The Company covenants that the total number of seats on the Board (including any vacant seats) will in no event exceed 15 so long as Purchaser is entitled to designate at least one Purchaser Designee. (f) At all times after the date hereof, if Purchaser is entitled to designate at least one Purchaser Designee, and to the extent permitted by law and applicable rules of the New York Stock Exchange, the Company shall ensure that at least one Purchaser Designee is a member of any committee of the Board requested by Purchaser, other than any special committee of directors formed as a Directorresult of any conflict of interest arising from any Purchaser Designee’s relationship with Purchaser. (g) So long as Purchaser beneficially owns a majority of the outstanding shares of Senior Preferred, if any, persons elected to the Board by holders of the Senior Preferred pursuant to Article IV.C.4(d) of the Restated Articles (the “Investor DirectorDefault Designees”) ceases will be deemed to serve on the Board be Purchaser Designees for any reason purposes of Sections 3.1(d) through (other g). If Purchaser beneficially owns less than pursuant to Section 2.02) during his or her term (until such time as the 20.0% Beneficial Ownership Requirement is not satisfied), the vacancy created thereby shall be filled, and the Company shall cause the Board to fill such vacancy, with a new Investor Nominee. (d) In the absence of any nomination from the Investor at a time when it has the right to nominate a director as specified above, the Investor Director previously nominated by the Investor and then serving (if any) shall be the Investor Nominee (subject to the satisfaction majority of the qualification requirements for an Investor Nominee set forth herein). Termination outstanding shares of Investor Board Rights . If at any time the 20.0% Beneficial Ownership Requirement is not satisfiedSenior Preferred, then the Investor Director shall immediately resign, and the Investor shall cause such Investor Director Default Designees will not be deemed to immediately resign, from his or her position as a Director effective as be Purchaser Designees for purposes of the receipt of such noticeSection 3.1(d) through (g).