Common use of Purchaser Designee Clause in Contracts

Purchaser Designee. Effective immediately after the Closing, and, in the case of any Purchaser Designee other than the Initial Purchaser Designee (as defined below), for so long as Purchaser (and its Affiliates) beneficially owns at least thirty three percent (33%) of the Shares issued to Purchaser at the closing, Purchaser shall have the right to designate, and the Company shall nominate and recommend in the Company’s proxy statement for each annual meeting of Shareholders (the “Annual Meeting”), one individual designated by the Purchaser and approved by the Company, such approval not to be unreasonably withheld (the “Purchaser Designee”), who shall serve on the Board until the Company’s next succeeding Annual Meeting. Immediately following the Closing, the Company shall appoint the Purchaser Designee to the Board with a term expiring at the Company’s next Annual Meeting. The initial Purchaser Designee shall be ▇▇▇▇▇ ▇▇▇▇▇ (the “Initial Purchaser Designee”). If there is a vacancy on the Board as a result of (1) the resignation, death or removal of the Purchaser Designee, or (2) the Purchaser Designee’s failure to obtain the requisite approval of the Company’s shareholders necessary for election at any annual or special meeting of the Company’s shareholders, and where no other individual is elected to fill such vacancy, Purchaser shall have the right to designate another Purchaser Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Board. The Company shall have taken all actions necessary at or prior to the Closing to ensure there is a vacancy on the Board as of the Closing to permit the appointment of the Purchaser Designee to the Board as of the Closing. The Company covenants and agrees to take no action that is inconsistent with the objective of having Purchaser Designee serve on the Board pursuant to this Section 4.6(a).

Purchaser Designee. Effective immediately At the first Board meeting occurring after the Closingdate on which Purchaser’s ownership percentage of Common Stock of the Company on an as-converted basis will (assuming appointment of the Purchaser Designee) equal or exceed the percentage calculated by dividing one (1) by the total number of then current directors on the Board plus the Purchaser Designee, and, the Board shall appoint the Purchaser Designee to serve as a director in the case class of any Purchaser Designee other than directors whose term expires at the Initial Purchaser Designee (as defined below), for so long as Purchaser (and its Affiliates) beneficially owns at least thirty three percent (33%) annual meeting of stockholders of the Shares issued to Purchaser at the closing, Company in 2009 and until a successor is duly elected and qualified. The Purchaser shall have the right to designate, and the Company shall nominate and recommend in the Company’s proxy statement for each annual meeting of Shareholders (the “Annual Meeting”), one individual designated by the Purchaser and approved by the Company, such approval not to be unreasonably withheld (the “Purchaser Designee”), who shall serve on the Board until the Company’s next succeeding Annual Meeting. Immediately following the Closing, the Company shall appoint the Purchaser Designee to the Board with a term expiring at the Company’s next Annual Meeting. The initial Purchaser Designee shall be ▇▇▇▇▇ ▇▇▇▇▇ (the “Initial Purchaser Designee”). If there is a vacancy on the Board as a result of (1) the resignation, death or removal of the Purchaser Designee, or (2including any successor pursuant to Subsection 9(e) the Purchaser Designee’s failure to obtain the requisite approval below, for election as a director of the Company’s shareholders necessary , who shall be elected solely by the Purchaser as sole holder of the Preferred Stock, voting separately as a series. At least ninety (90) days prior to any meeting (or written action in lieu of a meeting) of stockholders of the Company at or by which directors are to be elected, the Purchaser shall notify the Company in writing of the Purchaser Designee nominated by the Purchaser for election at any annual or special meeting of the Company’s shareholders, and where no other individual is elected to fill such vacancy, Purchaser shall have the right to designate another Purchaser Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Boardas a director. The Company shall have taken all actions necessary at or prior to disclose in its proxy the Closing to ensure there is a vacancy on nominated Purchaser Designee. In the Board absence of any such notification, it shall be presumed that the Purchaser’s then incumbent Purchaser Designee has been renominated as of its Purchaser Designee. The rights provided under this Section 9 are the Closing to permit the appointment exclusive rights of the Purchaser Designee to the Board as and are not transferable to, or exercisable by, other holders of the Closing. The Company covenants and agrees to take no action that is inconsistent with the objective of having Purchaser Designee serve on the Board pursuant to this Section 4.6(a)Preferred Stock, if any.

Purchaser Designee. Effective immediately after (a) Following the Closing, and, in the case of any Purchaser Designee other than the Initial Purchaser Designee Closing Date (as defined below), in the Purchase Agreement) and for so long as Purchaser (Purchasers and its Affiliates) beneficially owns their Affiliates collectively hold at least thirty three percent (33%) 9.99% of the Shares issued outstanding Common Stock (including securities convertible into Common Stock), Purchasers may recommend a candidate who is not an Affiliate of either Purchaser or the Company to be appointed as a member of the Board. Unless the Board reasonably objects to such candidate (in which case the Board shall so notify Purchasers in writing within twenty (20) Business Days after the recommendation of such candidate by Purchasers), the Board shall appoint such individual candidate as a member of the Board within twenty (20) Business Days after the recommendation of such candidate by Purchasers (thereafter such candidate shall be deemed the initial Purchaser Designee hereunder). From and after the Closing Date and for so long as Purchasers and their Affiliates collectively hold at least 9.99% of the closingoutstanding Common Stock (including securities convertible into Common Stock), the Board (or an authorized committee thereof) will nominate such candidate for election to the Board or such other individual who is not an Affiliate of either Purchasers or the Company recommended by Purchasers, unless the Board reasonably objects to such other candidate (in which case the Board shall so notify Purchasers in writing within twenty (20) Business Days after the recommendation of such candidate by Purchasers) (such person thereafter being the Purchaser Designee) at each annual meeting of the stockholders of the Company, such that the Purchaser Designee shall be up for election in accordance with the Company’s Certificate of Incorporation or Bylaws. If the shareholders of the Company do not elect such Purchaser Designee to the Board at any such annual meeting, Purchasers may recommend a replacement candidate who is not an Affiliate of either Purchaser or the Company to be appointed as a member of the Board. Unless the Board reasonably objects to such replacement candidate (in which case the Board shall so notify Purchasers in writing within twenty (20) Business Days after the recommendation of such replacement candidate by Purchasers), the Board shall appoint such replacement candidate as a member of the Board within twenty (20) Business Days after the recommendation of such replacement candidate by Purchasers (thereafter such replacement candidate shall be deemed the Purchaser Designee hereunder). For the avoidance of doubt, the Board may reasonably object to appointing or nominating any Purchaser Designee that does not meet all director independence and other standards of the NYSE MKT (“NYSE”) and the SEC and applicable provisions of the Exchange Act. (b) As a condition to the Purchaser Designee’s election or nomination for election and any subsequent nomination for election as a director of the Company, the Purchaser Designee shall have agreed to provide to the Company information required to be or customarily disclosed for directors, candidates for directors, and their Affiliates and representatives in a proxy statement or other filings under applicable law or the rules of NYSE or any other exchange on which the Company may list its securities and the SEC, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, as well as compensation information of the Purchaser Designee and any special arrangements (compensatory or otherwise) related to such person’s service as a member of the Board, and such other information as reasonably requested by the Company from time to time with respect to the Purchaser Designee. (c) Purchasers shall cease to have a right to designaterecommend a Purchaser Designee pursuant to this Section 2.1 once Purchasers and their Affiliates cease to collectively hold at least 9.99% of the outstanding Common Stock (including securities convertible into Common Stock), and hereby covenant to inform the Company of any such occurrence to its knowledge, and the Company shall nominate have no further obligations under this Section 2.1 following such occurrence. For the avoidance of doubt, the rights provided in this Section 2.1 are non-transferable and recommend in shall apply only to Purchasers and their Affiliates. (d) Until the Company’s proxy statement for each annual meeting earlier of Shareholders (a) the “Annual Meeting”)date that Purchasers and their Affiliates collectively cease to hold at least 9.99% of the outstanding Common Stock (including securities convertible into Common Stock) or (b) five (5) years following the date of this Agreement, one individual designated by the Purchaser and approved by the Company, such approval not to be unreasonably withheld (the “Purchaser Designee”), who shall serve on maximum authorized size of the Board until shall not be more than seven (7) directors without the Company’s next succeeding Annual Meeting. Immediately following the Closing, the Company shall appoint the Purchaser Designee to the Board with a term expiring at the Company’s next Annual Meeting. The initial Purchaser Designee shall be ▇▇▇▇▇ ▇▇▇▇▇ (the “Initial Purchaser Designee”). If there is a vacancy on the Board as a result prior written consent of (1) the resignation, death or removal of the Purchaser Designee, or (2) the Purchaser Designee’s failure to obtain the requisite approval of the Company’s shareholders necessary for election at any annual or special meeting of the Company’s shareholders, and where no other individual is elected to fill such vacancy, Purchaser shall have the right to designate another Purchaser Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Board. The Company shall have taken all actions necessary at or prior to the Closing to ensure there is a vacancy on the Board as of the Closing to permit the appointment of the Purchaser Designee to the Board as of the Closing. The Company covenants and agrees to take no action that is inconsistent with the objective of having Purchaser Designee serve on the Board pursuant to this Section 4.6(a)Purchasers.