Common use of Composition of Board of Directors Clause in Contracts

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

Composition of Board of Directors. (a) Upon Effective at the acceptance for payment ofClosing Date, and payment by Merger Sub in accordance with the Offer for, at least a majority of the issued and outstanding shares of Common Stock on a fully diluted basis pursuant to the Offer, Purchaser there shall be entitled to designate such number of directors on the Board of Directors, rounded up to the next whole number, as will give Purchaser representation six (6) vacancies on the Board of Directors equal to the product of by: (i) the number of authorized directors on an increase in the Board of Directors to include eight (giving effect 8) members and (ii)director resignations from ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇. Effective at the Closing Date, the Board of Directors shall elect three individuals designated by Edwardstone and three individuals designated by Midmark to fill the directors elected pursuant to this Section 1.4six vacancies created in accordance with subsections (i) and (ii) of this Section 2.01(a), to serve from the percentage that Closing Date until the ----------- number end of their respective terms. (b) Thereafter, each of the Investors agrees to vote its shares of Common Stock purchased by Merger Sub or Purchaser or any affiliate thereof bears Voting Securities to the aggregate number maintain an eight-member Board of shares of Common Stock then outstanding (the "Percentage"), Directors and the Company shall, upon the election and ---------- request by Purchaser, promptly increase the size of to take such action as may be necessary to cause the Board of Directors and/or secure the resignations of such number of directors as is necessary to enable Purchaser's designees to be elected nominate and recommend to the Board of Directors and shall cause Purchaser's designees to be so elected. At the request of Purchaser, the Company will cause such individuals designated by Purchaser to constitute the same Percentage of (i) each committee of the Board, (ii) the board of directors of each Subsidiary (as defined in Section 11.8) stockholders of the Company and (iii) as the ------------ committees of each such board of directors. The Company's obligations to appoint designees to the Board of Directors and committees thereof shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all appropriate action required pursuant to such Section 14(f) and Rule 14f-1 to effect any such election and shall, subject to the next succeeding sentence, include in the Schedule 14D-9 the information required by Section 14(f) and Rule 14f-1. Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, directors and affiliates required by Section 14(f) and Rule 14f-1. Notwithstanding the foregoing, the parties hereto shall use their respective reasonable efforts to ensure that at least three of the proposed members of the Board of Directors shall at all times prior any annual or special meeting of stockholders called for the purpose of voting on the election of directors, three individuals designated by Edwardstone, three individuals designated by MidMark, and ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇. Each Investor agrees to appear in person or by proxy at any annual or special meeting of stockholders of the Company for the purpose of obtaining a quorum and to vote its shares of Voting Securities, either in person or by proxy, at any such meeting of stockholders called for the purpose of voting on the election of directors or by any consensual action with respect to the Effective Time be Continuing Directors (as defined election of directors, in Section 1.4(b)). --------------favor of the election of the directors nominated in accordance with this paragraph. (bc) After Notwithstanding the time that Purchaser's designees constitute at least a majority foregoing, each Investor shall cease to have the right to designate, or cause the nomination or election of, (i) more than two members of the Board of Directors from and until the Effective Time (after such date as defined in Section 2.3), any (i) amendment or termination of this Agreement by or on behalf ----------- such Investor beneficially owns Outstanding Voting Securities representing less than 10% of the Company, Voting Power of all Outstanding Voting Securities or (ii) exercise or waiver of any of the Company's rights or remedies hereunder, extension of time for the performance or waiver of any of the obligations or other acts of Purchaser or Merger Sub hereunder or (iii) other action by the Company in connection with this Agreement, shall require the approval of a majority of then-serving directors, if any, who are not designees of Purchaser (the "Continuing Directors"), except to the extent that applicable -------------------- law requires that such action be acted upon by the full Board of Directors, in which case such action will require the concurrence of both a majority member of the Board of Directors from and a majority after such date as the Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Continuing DirectorsVoting Power of all Outstanding Voting Securities. If a vacancy among The obligation of each Investor to vote its Voting Securities in accordance with this Section 2.01 and the Continuing obligation of the Board of Directors existshereunder to nominate for election as directors individuals designated by the other Investor shall be subject to the foregoing limitation. The obligation of the Board of Directors hereunder to nominate, and the obligation of each Investor to vote its voting securities in favor of, ▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ as directors shall cease on the date that is one year from the date hereof. (d) Until such time as an Investor beneficially owns Outstanding Voting Securities representing less than 5% of the Voting Power of all Outstanding Voting Securities, if any director designated by such Investor in accordance with this Section 2.01 shall decline or be unable to serve for any other reason, the remaining Continuing Director or Board of Directors shall be entitled to designate persons to fill promptly upon the request of such vacancies, who shall be deemed Continuing Directors for purposes of this Agreement. In the event there is only one remaining Continuing Director and he Investor nominate or she resigns or is removed, or if all Continuing Directors resign or are removed, he, she or they, as applicable, shall be entitled to designate his, her or their successorselect, as the case may be, each of whom a qualified person recommended by such Investor to replace such designee; provided that such Investor shall be deemed a Continuing Director for purposes have such right only if and to the extent consistent with the foregoing provisions of this Agreement. The Board of Directors Section 2.01. (e) Each Investor shall not delegate any matter set forth in this Section 1.4 promptly provide to any committee of the Company, as the Company may from time to time reasonably request, information regarding such Investor's designees for the Board of Directors, for inclusion in any form, report, schedule, registration statement, definitive proxy statement or other documents required to be filed by the Company with the Securities and Exchange Commission.