Common use of Number of Directors Clause in Contracts

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three (3) nor more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Until such time as the Majority Ownership Requirement is no longer met, the Board will consist of a single class of Directors each elected annually at the annual meeting of stockholders. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three (3) nor more than thirteen eleven (1311), with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three (3) nor more than thirteen (13)one, with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Until such time as the Substantial Ownership Requirement is no longer met, the Board will consist of a single class of Directors each elected annually at the annual meeting of stockholders. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three (3) nor more than thirteen eleven (1311), with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (ia) The Except as otherwise provided by law, the Company's Certificate of Incorporation, or these by-laws, the property and business and affairs of the Corporation Company shall be managed by, by or under the direction ofof a board of directors. Directors need not be stockholders, residents of Delaware, or citizens of the United States. The use of the phrase "whole board" herein refers to the total number of directors which the Company would have if there were no vacancies. (b) The number of directors constituting the full Board of Directors shall be five (or such other number as the Board of Directors from time to time may determine). The Board of Directors shall be divided into three classes of directors, such classes to be as nearly equal in number of directors as possible, having staggered three-year terms of office, the Board. Unless and except term of office of the directors of the first such class to expire as of the extent that first annual meeting of the Company's stockholders following the date on which these Amended and Restated By-laws become effective, those of the Corporation (second class to expire as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors second annual meeting of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights Company's stockholders following such effective date, and those of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall be not less than three (3) nor more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors third class as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which third annual meeting of the Company's stockholders following such right continues: (i) effective date, such that at each annual meeting of stockholders after such effective date, nominees will stand for election to succeed those directors whose terms are to expire as of such meeting. Members of the then total authorized number Board of Directors shall automatically be increased by such specified number hold office until the annual meeting of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly stockholders at which their respective successors are elected and qualified, qualified or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her their earlier death, disqualificationincapacity, resignation resignation, or removal. Except as the DGCL or the Company's Certificate of Incorporation may otherwise provided by require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, any vacancies in the Board in the resolution or resolutions establishing such seriesof Directors, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director. (c) If the office of any director becomes vacant by reason of death, resignation, disqualification disqualification, removal, failure to elect, or removal otherwise, the remaining directors, although more or less than a quorum, by a majority vote of such Preferred Stock Directors, remaining directors may elect a successor or successors who shall forthwith terminate and hold office for the total and authorized number of Directors shall be reduced accordinglyunexpired term.

Number of Directors. (ia) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws Bylaws of the Corporation (as such By-laws Bylaws may be amended from time to time, the “By-lawsBylaws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 4.4 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall, (i) as of the date of this Certificate of Incorporation, be eight (8) and (ii) thereafter, shall be not less than three (3) nor fixed exclusively by one or more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed resolutions adopted from time to time by the Board. (iib) During Without limiting the Cottonmouth Stockholders’ rights provided under the DGCL, this Certificate of Incorporation or otherwise, with respect to any annual or special meeting of stockholders of the Corporation at which Directors are to be elected, for so long as the Cottonmouth Stockholders and their respective Affiliates Beneficially Own, in the aggregate, Common Stock representing ten percent (10%) or more of the then outstanding voting power of the Common Stock of the Corporation entitled to vote generally in the election of Directors, the Cottonmouth Stockholders shall have the right (but not the obligation) to designate one (1) individual for election as a Director consistent with this Section 5.1(b); provided that the Cottonmouth Stockholders shall permanently, and despite any later increase in its Beneficial Ownership, no longer be entitled to designate a Director nominee at such time as the Cottonmouth Stockholders and their respective Affiliates collectively Beneficially Own Common Stock representing less than ten percent (10%) of the then outstanding voting power of the Common Stock of the Corporation entitled to vote generally in the election of Directors. Each individual who is designated by the Cottonmouth Stockholders pursuant to this Section 5.1(b) or Section 5.2(b), as applicable, is referred to herein as a “Cottonmouth Designee” and each Cottonmouth Designee who is thereafter elected or appointed, as applicable, to serve as a Director is referred to herein as a “Cottonmouth Director.” The Cottonmouth Stockholders shall designate each Cottonmouth Designee for nomination by delivering to the Corporation a written notice (email being sufficient) at least ninety (90) days prior to the first anniversary of the preceding annual meeting (or such shorter period when as is agreed from time to time with the holders Corporation) setting forth the individual to be nominated and such individual’s business address, telephone number and e-mail address. For the avoidance of doubt, with respect to any series Cottonmouth Designee, the Cottonmouth Stockholders shall only be required to comply with the provisions of Preferred Stock this Section 5.1(b) and shall not be required to comply with the advance notice provisions of the Bylaws with respect to its designation of a Cottonmouth Designee. Notwithstanding anything to the contrary herein, the Cottonmouth Stockholders shall not be entitled to designate an individual for election pursuant to this Section 5.1(b) at any annual or special meeting of stockholders at which Directors are to be elected if a Cottonmouth Director is then serving on the Board and the election of such individual would result in two or more Cottonmouth Directors serving on the Board (including, for the avoidance of doubt, if a Cottonmouth Director is then serving as a member of the class of Directors that is not the class subject to election at such annual or special meeting). (c) With respect to any annual or special meeting of stockholders of the Corporation at which Directors are to be elected, to the extent that the Cottonmouth Stockholders have the right to elect additional Directors as provided for or fixed designate a Cottonmouth Designee pursuant to Section 5.1(b) at such annual or special meeting and subject to the provisions laws of Section 5.2 the State of Delaware (including with respect to fiduciary duties under Delaware law), each such Cottonmouth Designee (i) will be nominated and recommended by the Board to be elected as a Director at such annual or special meeting of stockholders and included in the Corporation’s slate of nominees to be elected or appointed to the Board at such annual or special meeting of stockholders, (ii) will be recommended by the Board to the stockholders of the Corporation for a vote in favor of such Cottonmouth Designee, (iii) will be included in any proxy or consent solicitation statement of the Corporation or the Board in favor of any nominees for election or appointment to the Board and (iv) without limiting the foregoing, will receive the Corporation’s best efforts to cause such Cottonmouth Designee to be elected as a Director, including the Corporation providing at least as high a level of support for the election of such Cottonmouth Designee as it provides to any other individual standing for election as a Director. (d) Until such time that the Corporation is no longer a “Preferred Stock DirectorsControlled Company” pursuant to Nasdaq Listing Rule 5615(c)(1) (the “Trigger Date”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant subject to the succeeding provisions of the Board’s designation for the series this Section 5.1(d) and Section 5.1(f) of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stockthis Article V, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.divided into three classes designated Class I, Class II and Class III. Classes I and II shall initially consist of two (2) Directors each and Class III shall initially consist of three (3)

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except Subject to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the special rights of the holders of any series of Preferred Stock to elect additional Directorsdirectors under specified circumstances, the total number of Directors directors constituting the entire Whole Board shall be not less than three (3) nor more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed from time to time exclusively by resolution adopted by a majority of the Whole Board. ; provided that, for so long as the Voting Agreement, dated on or about the Charter Date, by and among the Corporation and the other Persons party thereto (iias the same may be amended, restated or modified from time to time, the “Voting Agreement”) is in effect, the total number of directors shall never be less than the aggregate number of directors that the parties to the Voting Agreement are entitled to nominate from time to time pursuant to the terms thereof. During any period when the holders of any outstanding series of Preferred Stock have the right to elect additional Directors as provided for one or fixed more directors pursuant to this Restated Certificate of Incorporation (such directors, the provisions of Section 5.2 (“Preferred Stock Directors” and each, a “Preferred Director”), then upon the commencementcommencement of, and for the duration, duration of the period during which such right continues: (ia) the then otherwise total authorized number of Directors directors constituting the Whole Board shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related such outstanding series of Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Director or Preferred Stock Directors; and (iib) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlierthis Restated Certificate of Incorporation, subject to his or her such director’s earlier death, disqualificationresignation, resignation disqualification or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such seriesthis Restated Certificate of Incorporation, whenever the holders of any outstanding series of Preferred Stock having such the right to elect a Preferred Stock Directors Director are divested of such right pursuant to the provisions of such stockright, the terms term of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, Director shall forthwith terminate (and such Preferred Director shall thereupon cease to be qualified as, and shall cease to be, a director) and the total and authorized number of Directors directors constituting the Whole Board shall automatically be reduced accordinglydecreased by one.

Number of Directors. (ia) The business For so long as Trident II, L.P. and affairs certain of its co-investment vehicles which Trident II, L.P. shall have identified in writing to the Company ("Trident") hold shares of the Corporation Company's Series A Convertible Stock converted or convertible into 34,000 shares of Common Stock (as adjusted for any stock split, recapitalization or other event affecting the total equity capitalization of the Company), the Board shall consist of no more than nine directors (each, a "Director") and Trident shall have the right to designate one member of the Board (the "Trident A Director") who shall be managed byreasonably acceptable to the other Directors. (b) If, when and for so long as Trident holds shares of the Company's second series of preferred stock (expected to be called the "Series B Convertible Preferred Stock") converted or under convertible into 100,000 shares of Common Stock (as adjusted for any stock split, recapitalization or other event affecting the direction oftotal equity capitalization of the Company), the Board. Unless Board of Directors of the Company shall consist of no more than nine Directors and except Trident shall have the right to designate another member of the Board of Directors (the "Trident B Director") who shall be reasonably acceptable to the extent that the Amended and Restated By-laws other Directors, in addition to any Trident A Director. (c) For so long as any share of the Corporation (as such By-laws may be amended from time to timeCompany's Series A Preferred is outstanding, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series a majority of Preferred Stock to elect additional Directorssuch shares, the total number of Directors constituting the entire Board voting together as a class, shall be not less than three (3) nor more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors at least 25% of the members, and in any case at least one member, of the Board (each, a "Series A Director"); provided that (i) a Trident A Director shall not be deemed a Series A Director and (ii) at any time there is a Trident A Director, Trident shall abstain from voting on, and its shares shall not be counted in determining the vote required to elect, any Series A Directors. (d) The Founder shall be entitled to be a Director or to appoint a representative to serve as provided a Director for so long as he serves as an officer of the Company or fixed pursuant holds any Equity Stock. (e) The number of directors may thereafter be increased or decreased in accordance with the Certificate and the By-laws, subject to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordinglythis Agreement.

Number of Directors. (i) The business and affairs Subject to the right of the Corporation shall be managed by, or under the direction ofNominating Committee to approve nominees for Director as set forth in Section 4.7, the Board of Directors shall consist of eleven members, of which four members (the "Investor Nominees") will be designees of Lazard Freres Real Estate Investors L.L.C. ("Investor") (at least one in each class of the Board). Unless and except Thereafter, at each annual or special meeting of shareholders of the Company with respect to which any class of Directors is to be elected, Investor shall have the right (but not the obligation) to designate nominees to the extent that Board (subject to the Amended and Restated By-laws right of the Corporation (Nominating Committee to approve nominees for Director as set forth in Section 4.7) such By-laws may be amended from time that Investor shall have on the Board of Directors a number of representatives equal to time, the “By-laws”) shall so require, the election a percentage of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of members of the Board of Directors constituting that is equal to the entire Board shall percentage of Company Common Stock (as defined in the Stock Purchase Agreement dated as of July 14, 1997, by and among Investor, Prometheus Assisted Living LLC and the Company (the "Stock Purchase Agreement")) Beneficially Owned (as defined in the Stockholders Agreement dated as of July 14, 1997, by and among Investor, Prometheus Assisted Living LLC and the Company (the "Stockholder's Agreement") by Investor, on a Fully Diluted Basis (as defined in the Stock Purchase Agreement); provided, however, that (i) if the Investor would be not less than three (3) nor more than thirteen (13), with the then authorized entitled to a fractional number of Directors constituting representatives, the entire Board being fixed from time Investor shall instead be entitled to time by a number of representatives equal to the Board. next higher number, (ii) During any period when in no event shall the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall Investor be entitled to elect more than four representatives and (iii) after the Preferred occurrence of a Termination Event (as defined in the Stock Directors pursuant Purchase Agreement), if any, Investor shall not be entitled to any representatives on the provisions Board of Directors." RESOLVED, that the Bylaws of the Board’s designation for Company are hereby amended by removing Section 3.3 in its entirety and replacing it with the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.following paragraph:

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall, (a) as of the date of this Certificate of Incorporation, initially be five and (b) thereafter, shall be not less than three (3) nor fixed exclusively by one or more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed resolutions adopted from time to time by the Board. (ii) Other than any Preferred Stock Directors, if any, the Board shall be and is divided into three classes, as nearly equal in number as possible, designated: Class I, Class II and Class III. The Board is authorized to assign members of the Board already in office to such classes, with such assignment becoming effective as of the effectiveness of this Certificate of Incorporation. In case of any increase or decrease, from time to time, in the number of Directors, the number of Directors in each class shall be apportioned as nearly equal as possible. No decrease in the number of Directors shall shorten the term of any incumbent Director. (iii) Other than any Preferred Stock Directors, if any, each Director shall serve for a term ending on the date of the third annual meeting following the annual meeting at which such Director was elected; provided, that each Director initially appointed to Class I shall serve for an initial term expiring at the Corporation’s first annual meeting of stockholders following the effectiveness of this provision; each Director initially appointed to Class II shall serve for an initial term expiring at the Corporation’s second annual meeting of stockholders following the effectiveness of this provision; and each Director initially appointed to Class III shall serve for an initial term expiring at the Corporation’s third annual meeting of stockholders following the effectiveness of this provision; provided further, that the term of each Director shall continue until the election and qualification of a successor and be subject to such Director’s earlier death, resignation or removal. (iv) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (ia) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related such series of Preferred Stock shall be entitled to elect the such Preferred Stock Directors pursuant to the provisions of the Board’s designation any Certificate of Designation for the such series of Preferred Stock Stock; and (iib) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (ia) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws Bylaws of the Corporation (as such By-laws Bylaws may be amended from time to time, the “By-lawsBylaws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Amended Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total authorized number of Directors constituting the entire Board shall not be not less than three (3) nor and shall not be more than thirteen eight (13)8), with the then then-authorized number of Directors constituting the entire Board being fixed increased or decreased from time to time by the Board, which number shall initially be eight (8) members. (iib) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then then-total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s certificate of designation for the series of Preferred Stock Stock, and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall automatically be reduced accordingly.

Number of Directors. (i) The business and affairs number of directors that shall constitute the whole Board shall be as specified in the Bylaws of the Corporation shall be managed byCorporation, or under as the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws same may be amended from time to time. Notwithstanding the foregoing, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of during any period in which the holders of any one or more series of Preferred Stock Stock, voting as a class, shall be entitled to elect additional Directors, the total a specified number of Directors constituting directors by reason of dividend arrearages or other contingencies giving them the entire Board shall be not less than three right to do so, then and during such time as such right continues, (3A) nor more than thirteen (13), with the then otherwise authorized number of Directors constituting the entire Board being fixed from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors directors shall automatically be increased by such specified number of Preferred Stock Directors, directors and the holders of the related shares of such series of Preferred Stock Stock, voting as a class, shall be entitled to elect such specified number of directors in accordance with the Preferred Stock Directors pursuant to procedure set forth in the provisions resolution or resolutions of the Board’s designation Board creating such series and providing for the series issuance of Preferred Stock such shares and (iiB) each such Preferred Stock Director additional director shall serve until such Preferred Stock Director’s his or her successor shall have been duly be elected and qualifiedshall qualify, or until such Preferred Stock Director’s his or her right to hold such office terminates pursuant to the resolution or resolutions of the Board creating such provisionsseries of Preferred Stock and providing for the issuance of shares of such series, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever Whenever the holders of any shares of such series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right to elect directors pursuant to the provisions resolution or resolutions of the Board creating such series and providing for the issuance of such stockshares, the terms of office of all such Preferred Stock Directors directors elected by the holders of such series of Preferred StockStock pursuant to such rights, or elected to fill any vacancies resulting from the death, resignation, disqualification resignation or removal of directors so elected by the holders of such Preferred Stock Directorsseries, shall forthwith terminate and the total and authorized number of Directors directors shall be reduced accordingly.

Number of Directors. (i) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 of this Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall, (a) as of the date of this Certificate of Incorporation, initially be seven and (b) thereafter, shall be not less than three (3) nor fixed exclusively by one or more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed resolutions adopted from time to time by the Board. (ii) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (ia) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related such series of Preferred Stock shall be entitled to elect the such Preferred Stock Directors pursuant to the provisions of the Board’s designation any Certificate of Designation for the such series of Preferred Stock Stock; and (iib) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.

Number of Directors. (ia) The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. Unless and except to the extent that the Amended and Restated By-laws of the Corporation (as such By-laws may be amended from time to time, the “By-laws”) shall so require, the election of the directors of the Corporation (the “Directors”) need not be by written ballot. Except as otherwise provided for or fixed pursuant to the provisions of Section 5.2 4.2(b) of this Second Amended and Restated Certificate of Incorporation relating to the rights of the holders of any series of Preferred Stock to elect additional Directors, the total number of Directors constituting the entire Board shall, (a) as of the date of this Second Amended and Restated Certificate, be seven (7) and (b) thereafter, shall be not less than three (3) nor fixed solely and exclusively by one or more than thirteen (13), with the then authorized number of Directors constituting the entire Board being fixed resolutions adopted from time to time by the Board. (iib) During any period when the holders of any series of Preferred Stock have the right to elect additional Directors as provided for or fixed pursuant to the provisions of Section 5.2 4.2(b) (“Preferred Stock Directors”), upon the commencement, and for the duration, of the period during which such right continues: (i) the then total authorized number of Directors shall automatically be increased by such specified number of Preferred Stock Directors, and the holders of the related Preferred Stock shall be entitled to elect the Preferred Stock Directors pursuant to the provisions of the Board’s designation for the series of Preferred Stock and (ii) each such Preferred Stock Director shall serve until such Preferred Stock Director’s successor shall have been duly elected and qualified, or until such Preferred Stock Director’s right to hold such office terminates pursuant to such provisions, whichever occurs earlier, subject to his or her earlier death, disqualification, resignation or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect Preferred Stock Directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such Preferred Stock Directors elected by the holders of such Preferred Stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such Preferred Stock Directors, shall forthwith terminate and the total and authorized number of Directors shall be reduced accordingly.