Common use of Continuing Directors Clause in Contracts

Continuing Directors. Notwithstanding the foregoing provisions of this Section 1.3, the parties hereto shall use their respective best efforts to ensure that at least two of the members of the Company Board shall, at all times prior to the Effective Time (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 cause the person designated by the remaining Continuing Director to be appointed 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 of the Company then in office shall designate two persons to fill such vacancies who are not directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) 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 (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. Notwithstanding the foregoing 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 members of the Company Board shall, at all times following the Appointment Time and prior to the Effective Time (as defined belowin Section 2.3), 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, provided however, that, if there shall be in office fewer less than two Continuing Directors for any reason, the Company Board shall cause the person designated by the remaining Continuing Director to be appointed designate a person to fill such vacancy, vacancy and such person shall be deemed to be a an Continuing Director for all purposes of this Agreement, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate two persons to fill such vacancies who are will not be directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the 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) any termination of this Agreement by the Company, (iii) any extension of time for performance of any of the obligations of the Parent or the Purchaser hereunder, (iv) and any waiver of any condition to the Company’s obligations hereunder, (v) exercise hereunder or waiver any 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 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 a majority at least one of the Continuing Directors then in office. The Continuing Directors shall have, Following the Appointment Time and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current counsel prior to the Company) and Effective Time, neither Parent nor Purchaser shall take any other advisors (which may include current advisors action to the Company) at the expense of the Company as determined by the remove any Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this AgreementDirector absent cause.

Continuing Directors. Notwithstanding Following the foregoing provisions election or appointment of this the Parent’s designees to the Company Board pursuant to Section 1.31.3(a) and until the Effective Time, the parties hereto Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their respective reasonable best efforts to ensure that cause the Company Board to at all times include, at least two of the members three (3) Continuing Directors and each committee of the Company Board shall, 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 Time, any remaining Continuing Directors (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 “or Continuing Directors”), provided thatDirector, if there shall be in office fewer than two Continuing Directors for only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any reason, the Company Board shall cause the person designated by the remaining Continuing Director to be appointed 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 or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate two three (3) persons who are not officers, directors, stockholders or designees of Parent or any of its Affiliates to fill such vacancies who are not directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) as in effect on the date hereofvacancies, 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. Notwithstanding the foregoing provisions of this Section 1.3, the parties hereto shall use their respective best efforts to ensure that at least two of the members of the Company Board shall, at At all times prior to the Effective Time (as defined belowin Section 1.2), 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 cause the person designated by the remaining Continuing Director to be appointed to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes of this Agreement, or if no always have at least two Continuing Directors then remain(as defined below). Subject to applicable Law, the other directors 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 then and its officers and directors as is required under Section 14(f) and Rule 14f-1 in office shall designate two persons order to fill such vacancies who are not directorsfulfill 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, employees directors and affiliates required by Section 14(f) and Rule 14f-1. Following the election or Affiliates appointment of the Parent or the Purchaser and are “independent directors” of Buyer Designees to the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) as in effect on the date hereofBoard pursuant to this section, and such Persons shall be deemed to be Continuing Directors for all purposes until the Effective Time, the approval of this Agreement. From and after the time, if any, that the Purchaser Designees constitute a majority of the Company Board and prior Continuing Directors shall be required to the Effective Time, subject authorize: (A) any amendment to the terms hereof, any (i) amendment or modification of this Agreement, (ii) termination of this Agreement by on behalf of the Company, ; (iiiB) any extension of time for the performance of any of the obligations or other acts of the Parent Buyer or the Purchaser hereunder, Acquisition Sub; (ivC) any waiver of compliance with any covenant or obligation of the Buyer or the Acquisition Sub or any condition to any obligation of the Company or any waiver of any condition to the Company’s obligations hereunder, (v) exercise or waiver right of the Company’s rights or remedies hereunder, Company under this Agreement; and (viD) 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. “Continuing Director” shall mean (1) any member of the Company Board, while such person is a member of the Company Board, who is not an Affiliate, representative or designee of the Buyer or the Acquisition Sub and who was a member of the Company Board may be effected only if there are in office one prior to the date of the Agreement, and (2) any successor of a Continuing Director while such successor is a member of the Company Board, who is not an Affiliate, representative or more designee of the Buyer or the Acquisition Sub and was recommended or elected to succeed such Continuing Directors and such action is approved Director 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. Notwithstanding Prior to the foregoing provisions of this Section 1.3Closing, the parties hereto Company Board shall use their respective best efforts to ensure that at least two designate those four current members of the Company Board listed on Schedule 7(a) as the members of the Company Board shall, at all times prior to the Effective Time (as defined below), be directors of the Company who were directors date of the Company this Agreement that will continue 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 cause following the person designated by Closing, with such members allocated among the remaining Continuing Director to be appointed to fill such vacancy, and such person shall be deemed to be a Continuing Director for all purposes classes of this Agreement, or if no Continuing Directors then remain, the other directors of the Company then in office shall designate two persons to fill such vacancies who are not directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) 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 Timeas set forth on Schedule 5(a)(i) (each such individual, 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 Subsidiariessuccessor thereto, on the one hand, and the Parent, the Purchaser substitute therefor 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 replacement thereof designated by a 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 office. The Continuing Directors connection 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, until and including the 2011 annual meeting of 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 haverecommend the nomination of, and the Parent Company Board shall cause nominate for reelection (or election), recommend that the Company’s shareholders vote in favor of election to the Company Board of, and solicit proxies in favor of the election of, and the Company and the Company Board shall otherwise take all actions as are reasonably necessary or desirable to elect, those Continuing Directors to havewhose terms of office expire at such shareholder meeting (or, in 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 discretion of the Company as determined by 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, that, in the event that the Company Board determines in good faith, after consultation with outside legal counsel, that its nomination of a particular Continuing Director would constitute a breach of its fiduciary duties to the Company’s shareholders, then the Company shall nominate another individual designated for election to the Company Board by a majority of the Continuing Directors then on the Company Board (subject in each case to this proviso) and the authority to institute any action on behalf Company Board and the Company shall take all of the Company actions required by this Section 7 with respect to enforce performance the election at such shareholder meeting of this Agreementsuch substitute Continuing Director.

Continuing Directors. Notwithstanding the foregoing provisions of this Section 1.32.4(a), the parties hereto shall use their respective reasonable best efforts to ensure that at least two three (3) of the members of the Company Board shall, at all times following the Appointment Time and prior to the Effective Time (as defined below)Time, 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, provided however, that, if there shall be in office fewer less than two three (3) Continuing Directors for any reason, the Company Board shall cause the person a Person designated by the remaining Continuing Director to be appointed designate a 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 if no Continuing Directors then remain, the other directors of the Company then in office shall designate two persons three (3) Persons to fill such vacancies who are will not be directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) as in effect on the date hereof, 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 Purchaser Merger Sub 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) any termination of this Agreement by the Company, (iii) any extension of time for performance of any of the obligations of the Parent or the Purchaser Merger Sub hereunder, (iv) and any waiver of any condition to the Company’s obligations hereunder, (v) exercise hereunder or waiver any 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 hereunder may be effected only if (in addition to such action being approved by the Company Board as a whole) there are in office one three (3) or more Continuing Directors and such action is approved by a majority at least two (2) of the Continuing Directors then in office. The Continuing Directors shall have, Following the Appointment Time and the Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current counsel prior to the Company) and Effective Time, neither Parent nor Merger Sub shall take any other advisors (which may include current advisors action to the Company) at the expense of the Company as determined by the remove any Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this AgreementDirector without cause.

Continuing Directors. Notwithstanding the 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 members of the Company Board shall, at all times prior to the Effective Time (as defined below), be directors of the Company who were directors of the Company on the date hereof and who are not officers “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, that if there shall be in office fewer than two (2) Continuing Directors for any reason, the Company Board shall cause the person designated by the remaining Continuing Director to be appointed 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 of the Company then in office shall designate two (2) persons to fill such vacancies who are not directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(24200(a)(15) 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 Subsidiariessubsidiaries, 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 shall have the authority to institute any action on behalf of the Company to enforce performance of this Agreement.

Continuing Directors. Notwithstanding Following the foregoing provisions election or appointment of this the Parent’s designees to the Company Board pursuant to Section 1.31.3(a) and until the Effective Time, the parties hereto Company Board shall at all times include, and the Company, the Parent and the Purchaser shall use their respective reasonable best efforts to ensure that cause the Company Board to at all times include, at least two of the members (2) Continuing Directors and each committee of the Company Board shall, 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; provided, however that if the number of Continuing Directors is reduced to less than two (2) prior to the Effective Time Time, any remaining Continuing Directors (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 “or Continuing Directors”), provided thatDirector, if there shall be in office fewer than two Continuing Directors for only one (1) remaining) shall be entitled to designate a person who is not an officer, director, stockholder or designee of Parent or any reason, the Company Board shall cause the person designated by the remaining Continuing Director to be appointed 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 or, if no Continuing Directors then remain, the other directors of the Company then in office shall designate two three (3) persons who are not officers, directors, stockholders or designees of Parent or any of its Affiliates to fill such vacancies who are not directors, officers, employees or Affiliates of the Parent or the Purchaser and are “independent directors” of the Company for purposes of Nasdaq Marketplace Rule 5605(a)(2) as in effect on the date hereofvacancies, 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.