Common use of Purchaser Designee Clause in Contracts

Purchaser Designee. (a) Following the Closing Date (as defined in the Purchase Agreement) and for so long as Purchasers and their Affiliates collectively hold at least 9.99% of the 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 outstanding 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 recommend 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 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 shall apply only to Purchasers and their Affiliates. (d) Until the earlier of (a) the 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, the maximum authorized size of the Board shall not be more than seven (7) directors without the prior written consent of Purchasers.

Purchaser Designee. (a) Following At the Closing Date (as defined in first Board meeting occurring after the Purchase Agreement) and for so long as Purchasers and their Affiliates collectively hold at least 9.99% date on which Purchaser’s ownership percentage of Common Stock of the outstanding Common Stock Company on an as-converted basis will (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 assuming appointment of the Board. Unless Purchaser Designee) equal or exceed the percentage calculated by dividing one (1) by the total number of then current directors on the Board reasonably objects to such candidate (in which case plus the Board shall so notify Purchasers in writing within twenty (20) Business Days after the recommendation of such candidate by Purchasers)Purchaser Designee, the Board shall appoint such individual candidate the Purchaser Designee to serve as a member director in the class of directors whose term expires at the annual meeting of stockholders of the Board within twenty (20) Business Days after Company in 2009 and until a successor is duly elected and qualified. The Purchaser shall have 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 outstanding Common Stock (including securities convertible into Common Stock), the Board (or an authorized committee thereof) will right to 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, including any successor pursuant to Subsection 9(e) at each annual meeting of the stockholders of the Companybelow, 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, who shall be elected solely by the Purchaser Designee shall have agreed as sole holder of the Preferred Stock, voting separately as a series. At least ninety (90) days prior to provide to any meeting (or written action in lieu of a meeting) of stockholders of the Company information required at or by which directors are to be or customarily disclosed for directorselected, 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 Purchaser shall notify 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 writing of the Purchaser Designee and any special arrangements (compensatory or otherwise) related to such person’s service nominated by the Purchaser for election as a member of director. The Company shall disclose in its proxy the Board, and such other information as reasonably requested by the Company from time to time with respect to the nominated Purchaser Designee. (c) Purchasers shall cease to have a right to recommend a Purchaser Designee pursuant to this Section 2.1 once Purchasers and their Affiliates cease to collectively hold at least 9.99% of . In the outstanding Common Stock (including securities convertible into Common Stock), and hereby covenant to inform the Company absence of any such occurrence to notification, it shall be presumed that the Purchaser’s then incumbent Purchaser Designee has been renominated as its knowledge, and the Company shall have no further obligations Purchaser Designee. The rights provided under this Section 2.1 following such occurrence. For 9 are the avoidance of doubt, the exclusive rights provided in this Section 2.1 are non-transferable and shall apply only to Purchasers and their Affiliates. (d) Until the earlier of (a) the 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) Purchaser and are not transferable to, or (b) five (5) years following the date of this Agreementexercisable by, the maximum authorized size other holders of the Board shall not be more than seven (7) directors without the prior written consent of PurchasersPreferred Stock, if any.

Purchaser Designee. (a) Following Effective immediately after the Closing Date Closing, and, in the case of any Purchaser Designee other than the Initial Purchaser Designee (as defined in the Purchase Agreement) and below), for so long as Purchasers Purchaser (and their Affiliates collectively hold its Affiliates) beneficially owns at least 9.99% thirty three percent (33%) of the outstanding Common Stock (including securities convertible into Common Stock)Shares issued to Purchaser at the closing, Purchasers may recommend a candidate who is not an Affiliate of either Purchaser or shall have the right to designate, and the Company to be appointed as a member of shall nominate and recommend in 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 Company’s proxy statement for so long as Purchasers and their Affiliates collectively hold at least 9.99% of the outstanding 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 Shareholders (the stockholders of “Annual Meeting”), one individual designated by the Purchaser and approved by the Company, such that approval not to be unreasonably withheld (the “Purchaser Designee Designee”), who shall be up for election in accordance with serve on the Board until the Company’s Certificate of Incorporation or Bylawsnext succeeding Annual Meeting. If Immediately following the shareholders of Closing, the Company do not elect such shall appoint the Purchaser Designee to the Board with a term expiring at any such annual meeting, Purchasers may recommend the Company’s next Annual Meeting. The initial Purchaser Designee shall be ▇▇▇▇▇ ▇▇▇▇▇ (the “Initial Purchaser Designee”). If there is a replacement candidate who is not an Affiliate of either Purchaser or vacancy on the Company to be appointed Board as a member result of (1) the resignation, death or removal of the Board. Unless the Board reasonably objects to such replacement candidate Purchaser Designee, or (in which case the Board shall so notify Purchasers in writing within twenty (202) 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 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 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 fill 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 recommend 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 knowledgevacancy, 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 further obligations under action that is inconsistent with the objective of having Purchaser Designee serve on the Board pursuant to this Section 2.1 following such occurrence. For the avoidance of doubt, the rights provided in this Section 2.1 are non-transferable and shall apply only to Purchasers and their Affiliates4.6(a). (d) Until the earlier of (a) the 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, the maximum authorized size of the Board shall not be more than seven (7) directors without the prior written consent of Purchasers.