Common use of Company Board Representation Clause in Contracts

Company Board Representation. Section 14(f). (a) Promptly upon the purchase by Purchaser of Shares pursuant to the Offer, and from time to time thereafter, Purchaser shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser or any affiliate of Purchaser bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action necessary to cause Purchaser's designees to be so elected, including either increasing the size of the Board of Directors or securing the resignations of incumbent directors or both. Notwithstanding the foregoing, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committee, as constituted on the date hereof (other than upon the resignation of both Disinterested Directors), on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best efforts to cause persons designated by Purchaser to constitute the same percentage as is on the Board of (i) each committee of the Board, (ii) each board of directors of each domestic subsidiary of the Company and (iii) each committee of each such board, in each case only to the extent permitted by law. Until Purchaser acquires a majority of the outstanding Shares on a fully diluted basis, the Company shall use its best efforts to ensure that all the members of the Board and such boards and committees as of the date hereof who are not employees of the Company shall remain members of the Board and such boards and committees.

Company Board Representation. Section 14(f). (a) Promptly upon the purchase by Purchaser the Merger Sub of Shares pursuant to the Offer, and from time to time thereafter, Purchaser the Merger Sub shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Company Board of Directors of the Company as shall give Purchaser the Merger Sub representation on the Company Board of Directors equal to the product of the total number of directors on such the Company Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser the Merger Sub or any affiliate of Purchaser the Merger Sub following such purchase bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaserthe Merger Sub's designees to be so electedelected as directors of the Company, including either increasing the size of the Company Board of Directors or securing the resignations of incumbent directors or both. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committee, as constituted on the date hereof (other than upon the resignation of both Disinterested Directors), on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best efforts to cause 20 24 persons designated by Purchaser the Merger Sub to constitute the same percentage as is on the Company's Board of (i) each committee of the Company Board, (ii) each board of directors of each domestic subsidiary of the Company Subsidiary and (iii) each committee of each such board, in each case only to the extent permitted by applicable law. Until Purchaser Notwithstanding the foregoing, until the earlier of (i) the time the Merger Sub acquires a majority of the then outstanding Shares on a fully diluted basisbasis and (ii) the Effective Time, the Company shall use its best efforts to ensure that all the members of the Company Board and each committee of the Company Board and such boards and committees of the Subsidiaries as of the date hereof who are not employees of the Company shall remain members of the Company Board and of such boards and committees.; provided however, the Company shall maintain at least one non-employee director until the Effective Time. (b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 6.12 and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under Section 14(f) and Rule 14f-1 to fulfill such obligations. Acquiror or the Merger Sub shall supply to the Company and be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1. (c) Following the election of designees of the Merger Sub pursuant to this Section 6.12, prior to the Effective Time, any amendment of this Agreement or the Articles of Incorporation or By-laws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Acquiror or the Merger Sub or waiver of any of the Company's rights hereunder shall require the concurrence of a majority of the directors of the Company then in office who neither were designated by the Merger Sub nor are employees of the Company. ARTICLE VII CONDITIONS Section 7.1 Conditions to Each Party's Obligations. The respective obligation of each party to effect the Merger shall be subject to the satisfaction (or, if permissible, waiver by the party for whose benefit such conditions exist) at or prior to the Effective Time of the following conditions: (a) this Agreement, the Merger and the transactions contemplated hereby shall, if necessary, have been approved and adopted by the requisite vote of the shareholders of the Company in accordance with applicable law and regulatory requirements and the Company's Articles of Incorporation; (b) any waiting period applicable to the Merger under the HSR Act shall have expired or been terminated; (c) no order, injunction or decree issued by any court or agency of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger or any of the other transactions contemplated by this Agreement shall be in effect, and no statute, rule, regulation, order, injunction or decree shall have been enacted, entered, promulgated or enforced by any Governmental Entity which prohibits, restricts or makes illegal the consummation of the Merger, provided, however, that the parties shall have used reasonable efforts to prevent any such rule, regulation, injunction, decree or other order, and to appeal as promptly as possible any injunction, decree or other order that may be entered; (d) all authorizations, approvals or consents required to permit the consummation of the Merger shall have been obtained and be in full force and effect, except where the failure to have obtained any such authorizations, approvals or consents would not have a Company Material Adverse Effect; and. (e) The Merger Sub or its permitted assignee shall have purchased all Shares validly tendered and not withdrawn pursuant to the Offer; provided, however, that this condition shall not be applicable to the obligations of Acquiror or the Merger Sub if, in breach of this Agreement or the terms of the Offer, the Merger Sub fails to purchase any Shares validly tendered and not withdrawn pursuant to the Offer. 21 25 ARTICLE VIII

Company Board Representation. Section 14(f). (a) Promptly upon the purchase by Purchaser of a majority of the then-outstanding Shares on a fully-diluted basis pursuant to the Offer, Offer and from time to time thereafter, Purchaser shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such the Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser or any affiliate of Purchaser following such purchase bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaser's designees to be so electedelected as directors of the Company, including either increasing the size of the Board of Directors or securing the resignations of incumbent directors directors, or both. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committee, as constituted on the date hereof (other than upon the resignation of both Disinterested Directors), on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best efforts to cause persons designated by Purchaser to constitute the same percentage as is on persons designated by Purchaser shall constitute of the Board of (i) each committee of the Board, (ii) each board of directors of each domestic subsidiary of the Company Subsidiary, and (iii) each committee of each such board, in each case only to the extent permitted by applicable law. Until Purchaser acquires a majority of Notwithstanding the outstanding Shares on a fully diluted basisforegoing, until the Effective Time, the Company shall use its best efforts to ensure that all the designate two members of the Board and such boards and committees each committee of the Board, as of the date hereof hereof, who are not employees of the Company who shall remain members of the Board and of such boards and committeescommittees (the "Independent Directors"); and provided further that, in such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall be entitled to designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Director then remains, the other directors shall designate two persons to fill such vacancies who are not officers, stockholders or affiliates of the Company, Parent or Purchaser and such persons shall be deemed to be Independent Directors for purposes of this Agreement.

Company Board Representation. Section 14(f). (a) ------------------------------------------- Promptly upon the purchase by Purchaser of a majority of the then-outstanding Shares on a fully-diluted basis pursuant to the Offer, Offer and from time to time thereafter, Purchaser shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such the Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser or any affiliate of Purchaser following such purchase bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaser's designees to be so electedelected as directors of the Company, including either increasing the size of the Board of Directors or securing the resignations of incumbent directors directors, or both. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committee, as constituted on the date hereof (other than upon the resignation of both Disinterested Directors), on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best efforts to cause persons designated by Purchaser to constitute the same percentage as is on persons designated by Purchaser shall constitute of the Board of (i) each committee of the Board, (ii) each board of directors of each domestic subsidiary of the Company Subsidiary, and (iii) each committee of each such board, in each case only to the extent permitted by applicable law. Until Purchaser acquires a majority of Notwithstanding the outstanding Shares on a fully diluted basisforegoing, until the Effective Time, the Company shall use its best efforts to ensure that all the designate two members of the Board and such boards and committees each committee of the Board, as of the date hereof hereof, who are not employees of the Company who shall remain members of the Board and of such boards and committeescommittees (the "Independent Directors"); and provided further that, in such event, if the --------------------- -------- ------- number of Independent Directors shall be reduced below two for any reason whatsoever, the remaining Independent Director shall be entitled to designate a person to fill such vacancy who shall be deemed to be an Independent Director for purposes of this Agreement or, if no Independent Director then remains, the other directors shall designate two persons to fill such vacancies who are not officers, stockholders or affiliates of the Company, Parent or Purchaser and such persons shall be deemed to be Independent Directors for purposes of this Agreement.

Company Board Representation. Section 14(f). (a) Promptly The Merger Agreement provides that upon the purchase by Purchaser of Shares pursuant to the Offer, and from time to time thereafter, Purchaser shall be is entitled to designate up to for election as directors of the Company such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors is equal to the product of (i) the total number of directors on such of the Company constituting the whole Company Board (giving effect to any increase in the number of directors elected pursuant in order to comply with this sentenceprovision) multiplied by and (ii) the percentage that the aggregate number voting power of Shares of Company Common Stock beneficially owned by Wiley and Purchaser or any affiliate (including Shares of Purchaser Company Common Stock paid for pursuant to the Offer), upon such payment, bears to the total number voting power of Shares of Company Common Stock then outstanding, and the Company shall, at such time, promptly will take all action necessary within its power to cause Purchaser's designees to be so electedelected or appointed to the Company Board, including either including, without limitation, increasing the size number of the Board of Directors or securing the directors, and seeking and accepting resignations of incumbent directors or bothdirectors. Notwithstanding the foregoingAt such time, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committeewill also, as constituted on the date hereof (other than upon the resignation request of both Disinterested Directors)Wiley or Purchaser, on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its reasonable best efforts to cause persons individual directors designated by Purchaser to constitute the same percentage as is number of members, rounded up to the next whole number, on the Board of (i) each committee of the Board, Board of Directors other than any such committee of the Company Board established to take action under the Merger Agreement and (ii) each the board of directors of each domestic significant subsidiary of the Company Company, and (iii) each committee of each such boardthereof, that represents the same percentage as Purchaser's designees represent on the Company Board. Notwithstanding the foregoing, in each case only the event that Purchaser's designees are appointed or elected to the extent permitted by law. Until Purchaser acquires a majority of the outstanding Shares on a fully diluted basisCompany Board, the Company shall use its best efforts to ensure that Board will at all times until the members Effective Time have at least two directors who are directors on the date of the Merger Agreement or otherwise not affiliates of Wiley (the "Continuing Directors"); provided that in the event that the number of Continuing Directors is reduced below two for any reason whatsoever, the Company Board will cause the person designated by the remaining Continuing Director to fill such vacancy and such boards and committees as person will be deemed to be a Continuing Director for all purposes of the date hereof Merger Agreement or, if no Continuing Directors then remain, the other directors of the Company then in office will designate two persons to fill such vacancies who are not officers, directors, employees or affiliates of the Company shall remain members or Wiley or any of their respective subsidiaries and such persons will be deemed to be Continuing Directors for all purposes of this Agreement. Following the election or appointment of Purchaser's designees and until the Effective Time, the approval of the Continuing Directors will be required to authorize (and such authorization will constitute the authorization of the Company Board and such boards and committeesno other action on the part of the Company, including any action by any other directors of the Company, will be required to authorize) any termination or amendment of the Merger Agreement by the Company, any amendment of the certificate of incorporation or bylaws of the Company inconsistent with the Merger Agreement, any extension of time for performance of any obligation or action under the Merger Agreement by Wiley or Purchaser, any waiver of any condition to Wiley's or Purchaser's obligations under the Merger Agreement or any of the Company's rights thereunder, or any material transaction with Wiley, Purchaser or any affiliate thereof (other than the pay-off of the Company's credit facilities).

Company Board Representation. Section 14(f). (a) Promptly upon the purchase by Purchaser of Shares pursuant to the Offer, Offer and from time to time thereafter, 34 40 Purchaser shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such the Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares and Series B Shares beneficially owned by Purchaser or any affiliate of Purchaser following such purchase bears to the total number of Shares then outstandingoutstanding on an "as-converted" basis, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaser's designees to be so electedelected as directors of the Company, including either increasing the size of the Board of Directors Board, if necessary, or securing Director resignations (the moment of such election being the "Appointment Time"). Prior to the date hereof the Company has obtained the conditional resignations of all but two of the incumbent directors or bothof the Company, which conditional resignations shall automatically become effective at the Appointment Time. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committee, as constituted on the date hereof (other than upon the resignation of both Disinterested Directors), on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best efforts to cause persons designated by Purchaser to constitute the same percentage as is on persons designated by Purchaser shall constitute of the Board of (i) each committee of the Board, (ii) each board of directors of each domestic subsidiary of the Company Subsidiary, and (iii) each committee of each such board, in each case only to the extent permitted by lawapplicable Law. Until Purchaser acquires a majority Notwithstanding the foregoing, in the event that Purchaser's designees are so elected to the Board, until the Effective Time, such Board shall have at least two directors who are directors of Company on the outstanding Shares on a fully diluted basisdate of this Agreement and who are not officers or employees of Company (the "Continuing Directors") and, provided further that, in such event, if the number of Continuing Directors shall be reduced below two for any reason whatsoever, the remaining Continuing Director shall designate a person to fill such vacancy who shall be deemed to be a Continuing Director for purposes of this Agreement or, if no Continuing Directors then remain, the other directors of Company shall use its best efforts to ensure that all the members of the Board and such boards and committees as of on the date hereof shall designate two persons to fill such vacancies who are shall not be officers or employees of the Company shall remain members Company, or officers or affiliates of the Board Purchaser, and such boards and committeespersons shall be deemed to be Continuing Directors for purposes of this Agreement.

Company Board Representation. Section 14(fSECTION 14(F). (a) Promptly upon the purchase by Purchaser of Shares pursuant to the Offer, and from time to time thereafter, Purchaser shall be entitled to designate up to such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such the Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser or any affiliate of Purchaser following such purchase bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaser's designees to be so electedelected as directors of the Company, including either increasing the size of the Board of Directors or securing the resignations of incumbent directors or both. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committeeshall, as constituted on the date hereof (other than upon the resignation written request of both Disinterested Directors)Purchaser, on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best reasonable efforts to cause persons designated by Purchaser to constitute the same percentage as is on persons designated by Purchaser shall constitute of the Board of (i) each committee of the Board, (ii) each board of directors of each domestic subsidiary of the Company Dialysis Subsidiary and (iii) each committee of each such board, in each case only to the extent permitted by applicable law. Until Notwithstanding the foregoing, until the earlier of (i) the time Purchaser acquires a majority of the then outstanding Shares on a fully diluted basisbasis and (ii) the Effective Time, the Company shall use its best reasonable efforts to ensure that all the members of the Board and each committee of the Board and such boards and committees of the domestic Dialysis Subsidiaries as of the date hereof who are not employees of the Company shall remain members of the Board and of such boards and committees, except for the members not standing for re-election at the Company's 1997 annual meeting of stockholders.

Company Board Representation. Section SECTION 14(f). (a) Promptly upon the purchase by Purchaser of Shares pursuant to the OfferOffer (provided that the Minimum Condition has been satisfied), and from time to time thereafter, Purchaser shall be entitled entitled, subject to compliance with Section 14(f) of the Exchange Act, to designate up to such number of directors, rounded up down to the next whole numbernumber (except where such rounding down would cause Purchaser to not be entitled to designate at least a majority of directors on the Board, in which case such number shall be rounded up), on the Board of Directors of the Company as shall give Purchaser representation on the Board of Directors equal to the product of the total number of directors on such the Board (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by Purchaser or any affiliate of Purchaser following such purchase bears to the total number of Shares then outstanding, and the Company shall, at such time, promptly take all action actions necessary to cause Purchaser's designees to be so electedelected or appointed as directors of the Company, including either increasing the size of the Board of Directors or securing the resignations of incumbent directors or both. Notwithstanding the foregoingAt such times, none of Parent, Purchaser or the Company shall take any action to remove or replace any member of the Special Committee after consummation of the Offer and prior to the Effective Time. If at any time prior to the Effective Time there are less than two members of the Special Committeeshall, as constituted on the date hereof (other than upon the resignation written request of both Disinterested Directors)Purchaser, on the Company's Board of Directors, Parent, Purchaser and the Company shall use all reasonable efforts to ensure that two members of the Company's Board of Directors are Disinterested Directors. In the event that both Disinterested Directors resign from the Special Committee, Parent, Purchaser and the Company shall either (i) use their reasonable efforts to appoint successors as aforesaid or (ii) permit the resigning Disinterested Directors to appoint their successors in their reasonable discretion. The Company will use its best reasonable efforts to cause persons designated by Purchaser to constitute the same percentage as is on persons designated by Purchaser shall constitute of the Board of (i) each committee of the Board, (ii) each the board of directors of each domestic subsidiary of the Company Subsidiary and (iii) each committee of each such board, in each case only to the extent permitted by applicable law. Until Notwithstanding anything stated herein, if Shares are purchased pursuant to the Offer, Parent and Purchaser acquires a majority of shall use reasonable efforts to assure that until the outstanding Shares on a fully diluted basisEffective Time, the Company Board shall use its best efforts to ensure that all the members of the Board and such boards and committees as of have at least one director who is a director on the date hereof who are and is not employees an employee of the Company shall remain members of the Board and such boards and committeesCompany.