Common use of Board Representation Clause in Contracts

Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis), the Parent shall be entitled to designate at its option up to that number of directors, rounded to the next whole number, of the Company Board, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.

Board Representation. The Merger Agreement provides that promptly after such (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as the Offeror acquires Shares pursuant to the Offer which represent at least a majority shares of the outstanding Shares (on a fully diluted basis)Company Common Stock are acquired by Parent or Offeror, the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Boardas will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall use commercially reasonable efforts to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company Certificate, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall use commercially reasonable efforts to enable individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company Certificate, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable lawLaw, and subject to Parent supplying the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders as promptly as practicable with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule14f-1 Rule 14f-1 promulgated thereunder. Conditions Precedent. The respective obligations , at the request of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable lawParent, the stockholders of the Company shall have approved promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Merger; provided, however, that Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent and will supply to the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacatedCompany, and (iiibe solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) Rule 14f-1 under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Exchange Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.

Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant Subject to applicable Law and to the Offer which represent at least a majority extent permitted by the requirements of the outstanding Shares New York Stock Exchange, if after the Acceptance Time the adoption of this Agreement by the Company’s stockholders is required by Law (on a fully diluted basisincluding if the conditions to the Top-Up Option are not satisfied or the Top-Up Option is for any reason deemed to be invalid or unenforceable), the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Company Board as will give Purchaser representation on the Company Board equal to the product of (i) the total number of directors on the Company Board (giving effect to the election or appointment of any additional directors pursuant to this Section 2.1(e)) and (ii) the percentage that the number of Shares beneficially owned by Parent and/or Purchaser (including all Shares which have been accepted for payment pursuant to Article III) bears to the number of Shares outstanding, and upon the request of Parent, the Company shall promptly increase the size of the Company BoardBoard or use its reasonable best efforts to secure the resignations of such number of directors as is necessary to provide Parent with such level of representation (the date on which the majority of the Company’s directors are designees of Parent that have been effectively elected or appointed to the Company Board in accordance herewith, the “Board Appointment Date”). Subject to applicable Law, the Company shall use its reasonable best efforts to cause individuals designated by Parent to constitute the same percentage as is on the entire Company Board (after giving effect to this Section 2.1(e)) to be on (i) each committee of the Company Board of the Company and (ii) each board of directors and each committee thereof of each Company Subsidiary. The Company’s obligations to elect or appoint designees to the Company Board shall be subject to compliance with Section 14(f) of the Exchange Act. At the request of Parent, as the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 2.1(e) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will make supply to the percentage Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. In the event that Parent’s designees are elected or appointed to the Company Board pursuant to this Section 2.1(e), then, until the Effective Time, the Company shall cause the Company Board to maintain at least three directors who are members of the Company's directors designated by Company Board on the Parent equal to date of this Agreement and who are independent for purposes of Rule 10A-3 under the aggregate voting power Exchange Act and applicable requirements of the Shares owned by New York Stock Exchange (the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock“Independent Directors”); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be Independent Directors is reduced below two three for any reason whatsoeverreason, any the remaining Company Designee Independent Director(s) shall be entitled to designate a person an individual or individuals to fill such vacancy who shall be deemed to be a Company Designee Independent Directors for purposes of the Merger this Agreement or, if no Company Designee Independent Directors then remainsremain, the other directors shall promptly (and in any event within ten (10) Business Days) designate two persons three individuals to fill such vacancies who shall not be stockholdersare independent for purposes of Rule 10A-3 under the Exchange Act and applicable requirements of the New York Stock Exchange, affiliates or associates of Offeror or Parent and such persons individuals shall be deemed to be Company Designees Independent Directors for purposes of the Merger this Agreement; provided, that if no such Independent Director is appointed in such time period, Parent shall designate such Independent Director(s). Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject Notwithstanding anything in this Agreement to the fulfillment at or contrary, from and after the Board Appointment Date and prior to the Effective Time Time, subject to the terms hereof, any amendment or termination of this Agreement by the Company requiring action by the Company Board, any extension by the Company of the following conditions: time for the performance of any of the obligations or other acts of Parent or Purchaser or waiver of any of the Company’s rights hereunder, will, to the fullest extent permitted by Law, require the concurrence of a majority of the Independent Directors (i) if required by applicable lawor in the case where there are two or fewer Independent Directors, the stockholders concurrence of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminatedone Independent Director).

Board Representation. The Merger Agreement provides that (a) Subject to applicable Law and to the extent permitted by the NYSE, promptly after such time as upon the Offeror acquires acceptance for payment of any Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis)Offer, the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Boardas will give Merger Subsidiary representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the number of Shares outstanding. The Company shall take all actions necessary to cause Parent's designees to be elected or appointed to the Company's Board of Directors, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the NYSE listing requirements). Unless waived in writing by Parent, the Company shall, prior to the expiration of the Offer, deliver to Parent such resignations of directors conditioned upon acceptance of Shares for payment and evidence of the valid election of Parent's designees to the Company's Board of Directors conditioned upon acceptance of Shares for payment so as to effect the provisions of this Section 2.03(a). Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 2.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company's obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make . At the percentage request of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed shall promptly take, at its expense, all actions required pursuant to take all action requested by Section 14(f) and Rule 14f-1 under the Parent which is reasonably necessary Exchange Act in order to effect any such election, including mailing fulfil its obligations under this Section 2.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) of and Rule 14f-1 under the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.

Board Representation. The Merger Agreement provides (i) Promptly following the written request of the Purchaser, if prior to a Termination Event, the Board shall adopt resolutions that promptly after (i) increase the number of natural persons that constitute the whole Board by one (1) person and (ii) fill the vacancy created by virtue of such time increase in the size of the Board with an individual designated by the Purchaser, who must in the reasonable judgment of the Company, (A) qualify as an Independent Director, (B) have the Offeror acquires Shares requisite skill and experience to serve as a director of a publicly traded company, (C) not be prohibited or disqualified from serving as a director of the Company pursuant to the Offer which represent at least a majority Company’s Bylaws (as in effect as of the outstanding Shares date of determination) or any rule or regulation of the Commission, NASDAQ (on a fully diluted basisor any other principal stock exchange or market upon which the Common Stock may trade), the Parent shall Company’s, Nominating and Corporate Governance Committee Charter (as in effect as of the date of determination) or by applicable law and (D) otherwise be entitled to designate at its option up to that number of directors, rounded reasonably acceptable to the next whole numberCompany (the “Designated Director”). Such Designated Director shall stand for nomination and appointment to the Company’s Board of Directors in accordance with the provisions in the Company’s, of Nominating and Corporate Governance Committee Charter. The Purchaser shall, and shall cause the Designated Director to, timely provide the Company Board, subject with accurate and complete information relating to compliance with Section 14(f) of the Purchaser and the Designated Director that may be required to be disclosed by the Company under the Exchange Act. In addition, as will make the percentage of at the Company's directors designated by ’s request, the Parent equal Purchaser shall cause the Designated Director to complete and execute the Company’s standard director and officer questionnaire and provide such other information as the Company may reasonably request prior to being admitted to the aggregate voting power Board or standing for reelection at an annual meeting of the Shares owned by the Offeror, the Parent Stockholders or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, at such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the other time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must as may be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminatedCompany.

Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant (a) Subject to applicable Law and to the Offer which represent at least a majority of extent permitted by the outstanding Shares (on a fully diluted basis)Stock Exchange, promptly upon the Acceptance Date, Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Boardas will give Merger Subsidiary representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of Shares beneficially owned by Parent and/or Merger Subsidiary (including all Shares which have been and will be accepted for payment pursuant to Article III) bears to the number of Shares outstanding, and upon the request of Parent, the Company shall promptly increase the size of the Board of Directors or use its reasonable best efforts to secure the resignations of such number of directors as is necessary to provide Parent with such level of representation (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the Stock Exchange listing requirements) (the date on which the majority of the Company’s directors are designees of Parent that have been effectively appointed to the Board of Directors of the Company in accordance herewith, the “Board Appointment Date”). Subject to applicable Law, the Company shall use its reasonable best efforts to cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 2.3(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make . At the percentage request of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed shall promptly take, at its expense, all actions required pursuant to take all action requested by Section 14(f) and Rule 14f-1 under the Parent which is reasonably necessary Exchange Act in order to effect any such election, including mailing fulfill its obligations under this Section 2.3(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) of and Rule 14f-1 under the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.

Board Representation. The Merger Agreement provides that promptly after such time For so long as the Offeror acquires Shares pursuant to the Offer which represent at least undersigned (or its subsidiaries) owns a majority minimum of 5% of the outstanding Shares (on a fully diluted basis)Common Stock of the Company, the Parent undersigned shall be entitled have the right (but not the obligation) to designate at its option to the board of directors of the Company up to that number of directors, as a percentage of the whole board of the Company, as shall be equal to the undersigned's percentage ownership of the outstanding shares of Common Stock. The foregoing calculation shall be made without giving effect to (i) the conversion or exercise of any options, warrants or other convertible securities of the Company held by either the undersigned or any other holder of options, warrants or other convertible securities or (ii) any shares of Common Stock held in treasury or by any subsidiary of the Company. If the calculation required above would entitle the undersigned to designate a fraction of a director to the board of the Company, the number of directors that the undersigned shall be entitled to designate shall be rounded up to the next highest whole number. Notwithstanding the foregoing percentage requirement, the undersigned will be entitled to appoint at least one director to the board of directors of the Company Board, subject to compliance with Section 14(f) for so long as it owns a minimum of 5% of the Exchange Act, as will make the percentage outstanding Common Stock of the Company's . Such designees shall receive the same compensation as is paid to other non-officer directors designated by of the Parent equal Company and shall be entitled to receive reimbursement for all reasonable costs incurred in attending meetings of the board of directors. The Company hereby agrees to indemnify and hold such designees harmless, to the aggregate voting power maximum extent permitted by law against any and all actions, suits, proceedings, inquiries, arbitrations, investigations, litigation, governmental or other proceedings, domestic or foreign, and awards and judgments arising out of such designees' service as a director of the Shares owned by Company. The Company does not presently maintain D&O Insurance for its directors but hereby covenants that it will obtain such insurance for its directors, including the Offerordesignees of the undersigned, as soon as such becomes available to it on commercially reasonable terms. The Company has further agreed, as a condition to the sale of the Units, to enter into an Indemnity Agreement, in the form attached hereto, with each of its directors, including the designees of the undersigned. As a further condition of the sale of the Units, the Parent or any Company shall deliver to the undersigned an agreement, in the form of their affiliates (assuming the exercise of all options to purchase Common Stock); providedExhibit 4 attached hereto, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date signed by shareholders of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent owning at least a majority of the entire Company Board. From and after the time that the ParentCompany's designees constitute a majority outstanding voting shares in which each such shareholder agrees to vote all shares of voting stock of the Company Boardbeneficially held by him, any actions relating her or it in accordance with the provisions of this Section 4. Immediately prior to the amendment or termination sale of the Merger Agreement by Units, the Company shall deliver all executed Exhibit 4 agreements it shall have then obtained. The Company covenants that it will deliver the balance of the Exhibit 4 agreements required to be delivered by it, to the undersigned, as soon as practicable following such sale. The Company will cause any persons or any extension entities who in the future acquire more than 5% of time requiring the approval outstanding voting stock of the Company or waiver to deliver a letter in the form of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject Exhibit 4 to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Mergerundersigned; provided, however, that the Parent and the Offeror such obligation shall vote not apply if all of their such shareholder's shares of are acquired in transactions to which the Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminatedis not a party.

Board Representation. The Merger Agreement provides that promptly after such time as Promptly upon the Offeror acquires purchase of Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis)Offer, the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of (a) the total number of directors on the Company Board (after giving effect to the directors designated by Parent pursuant to this sentence) and (b) the percentage that the total votes represented by such number of Shares in the election of directors of the Company so purchased bears to the total votes represented by the number of Shares outstanding. In furtherance thereof, the Company shall, upon request by Parent, promptly increase the size of the Company Board and/or exercise its best efforts to secure the resignations of such number of its directors as is necessary to enable Parent's designees to be elected to the Company Board and shall take all actions to cause Parent's designees to be so elected to the Company Board. At such time, the Company shall also cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of (i) each committee of the Company Board, subject (ii) each board of directors (or similar body) of each Company Subsidiary (as hereinafter defined) and (iii) each committee (or similar body) of each such board. The Company shall take, at its expense, all action required pursuant to compliance with Section 14(f) and Rule 14f-1 of the Exchange Act, as will make Act in order to fulfill its obligations under this Section 1.3 and shall include in the percentage of the Company's directors designated by the Parent equal Schedule 14D-9 to its stockholders such information with respect to the aggregate voting power Company and its officers and directors as is required by such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1. The provisions of the Shares owned by the Offerorthis Section 1.3 are in addition to and shall not limit any rights which Acquisition Sub, the Parent or any of their affiliates (assuming the exercise may have as a holder or beneficial owner of all options to purchase Common Stock); provided, however, until the Effective Time, such Board Shares as a matter of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent law with respect to the purchase election of and payment for Shares pursuant to directors or otherwise. In the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time event that the Parent's designees constitute a majority of are elected to the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.3

Board Representation. The Merger Agreement provides (i) Promptly following the written request of the Purchaser, if prior to a Termination Event, the Board shall adopt resolutions that promptly after (i) increase the number of natural persons that constitute the whole Board by one (1) person and (ii) fill the vacancy created by virtue of such time increase in the size of the Board with an individual designated by the Purchaser, who must in the reasonable judgment of the Company, (A) qualify as an Independent Director, (B) have the Offeror acquires Shares requisite skill and experience to serve as a director of a publicly traded company, (C) not be prohibited or disqualified from serving as a director of the Company pursuant to the Offer which represent at least a majority Company's Bylaws (as in effect as of the outstanding Shares date of determination) or any rule or regulation of the Commission, NASDAQ (on a fully diluted basisor any other principal stock exchange or market upon which the Common Stock may trade), the Parent shall Company's, Nominating and Corporate Governance Committee Charter (as in effect as of the date of determination) or by applicable law and (D) otherwise be entitled to designate at its option up to that number of directors, rounded reasonably acceptable to the next whole numberCompany (the "Designated Director"). Such Designated Director shall stand for nomination and appointment to the Company's Board of Directors in accordance with the provisions in the Company's, of Nominating and Corporate Governance Committee Charter. The Purchaser shall, and shall cause the Designated Director to, timely provide the Company Board, subject with accurate and complete information relating to compliance with Section 14(f) of the Purchaser and the Designated Director that may be required to be disclosed by the Company under the Exchange Act. In addition, as will make the percentage of at the Company's directors designated by request, the Parent equal Purchaser shall cause the Designated Director to complete and execute the Company's standard director and officer questionnaire and provide 7140498v.6 such other information as the Company may reasonably request prior to being admitted to the aggregate voting power Board or standing for reelection at an annual meeting of the Shares owned by the Offeror, the Parent Stockholders or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, at such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the other time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must as may be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminatedCompany.

Board Representation. The Merger Agreement provides that (a) Subject to applicable law, promptly after such time as upon the Offeror acquires acceptance for payment of any Shares pursuant to the Offer which represent at least a majority of Offer, and from time to time thereafter as Shares are acquired pursuant to the outstanding Shares (on a fully diluted basis)Offer, the Parent Merger Subsidiary shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Boardas will give Merger Subsidiary representation on the Board of Directors of the Company equal to at least that number of directors on the Company's Board of Directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section and including current directors serving as officers of the Company) multiplied by (ii) the percentage that the aggregate number of Shares beneficially owned by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the number of Shares outstanding. The Company shall take all actions necessary to cause Merger Subsidiary's designees to be elected or appointed to the Company's Board of Directors, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the Nasdaq National Market listing requirements). Subject to applicable law and to the extent permitted by the Nasdaq National Market listing requirements, the Company shall cause individuals designated by Merger Subsidiary to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company's obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make . At the percentage request of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable lawSubsidiary, the Company has agreed shall promptly take, at its expense, all actions required pursuant to take all action requested by Section 14(f) and Rule 14f-1 under the Parent which is reasonably necessary Exchange Act in order to effect any such election, including mailing fulfill its obligations under this Section 1.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders all necessary information to comply therewith. Merger Subsidiary will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and affiliates required by Section 14(f) of and Rule 14f-1 under the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.

Board Representation. The Merger Agreement provides that promptly after such time as upon the Offeror acquires Shares purchase by Parent or any of its subsidiaries pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis)Offer, the and from time to time thereafter, Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, number (but in no event more than one less than the total number of directors of the Company BoardBoard of Directors of the Company) as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, as will make representation on the Board of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to the Merger Agreement) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being the "Board Percentage"). The Company has agreed, upon request of Parent, to promptly satisfy the Board Percentage by (i) increasing the size of the Board of Directors of the Company or (ii) using its best efforts to secure the resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors of the Company and to cause Parent's designees promptly to be so elected. Following the election or appointment of Parent's designees pursuant to the Merger Agreement and prior to the Effective Time of the Merger, any amendment or termination of the Merger Agreement, extension for the performance or waiver of the obligations or other acts of Parent or the Purchaser or waiver of the Company's directors designated by rights thereunder, shall require the Parent equal to the aggregate voting power concurrence of a majority of the Shares owned by directors of the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors Company then in office who are were directors on the date of the Merger Agreement. Consideration to be Paid in the Merger. The Merger Agreement provides that upon the terms (but subject to the conditions) set forth in the Merger Agreement, the Purchaser will be merged with and into the Company whereupon the separate existence of the Purchaser shall cease, and the Company shall be the surviving corporation (the "Company DesigneesSurviving Corporation"), provided, that subsequent to the purchase of ) and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least be a majority wholly-owned subsidiary of the entire Company BoardParent. From and after In the time that the Parent's designees constitute a majority of the Company BoardMerger, any actions relating to the amendment each Share (excluding shares owned directly or termination of the Merger Agreement indirectly by the Company or any extension of time requiring its subsidiaries or by Parent, the approval Purchaser or any other subsidiary of Parent and holders who have not voted in favor of the Company Merger or consented to the Merger in writing and who have demanded appraisals for such Shares in accordance with the Delaware Law) outstanding immediately prior to the time the Certificate of Merger, or if applicable the Certificate of Ownership and Merger, is duly filed with the Secretary of the State of Delaware or at such later time as is specified in such Certificate of Merger (the "Effective Time") shall be converted into the right to receive the Merger Consideration in cash, without any interest thereon, less any required withholding taxes. Each share of the capital stock of the Purchaser outstanding immediately prior to the Effective Time shall be converted into and become one fully paid and nonassessable share of Common Stock, par value $.01 per share, of the Company, with the same rights and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. The Merger Agreement provides that the closing of the Merger shall occur as soon as practicable, but in no event later than five business days after satisfaction or, to the extent permitted under the Merger Agreement, waiver of any condition the conditions to the Merger set forth in the Merger Agreement. Employee Options, Warrants, Class A Exchangeable Preferred Stock and Exchangeable Notes. The Merger Agreement provides that, at the Effective Time, all outstanding Employee Options (regardless of whether or rights not such options have vested) shall either (i) be cancelled and each holder of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee cancelled option shall be entitled to designate a person receive, in consideration for the cancellation of such option, an amount in cash equal to fill the product of (x) the number of Shares previously subject to such vacancy who shall be deemed to be a Company Designee for purposes option and (y) the excess, if any, of the Merger Agreement orConsideration over the exercise price per Share previously subject to such option or (ii) if elected by such holder, and if no Company Designee then remainsthis option is made available by Parent, the such option will convert into options or other directors shall designate two persons rights to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes acquire shares of the Merger Agreement. Subject common stock of Parent, on terms determined in good faith by Parent to applicable law, have substantially the Company has agreed to take all action requested by same value as the Parent which is reasonably necessary to effect any value of such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedentoption. The respective obligations of each party to effect the Merger are subject to the fulfillment Agreement further provides that at or prior to the Effective Time Time, the Company shall use its reasonable best efforts to cause each holder of the following conditions: Warrants that are then outstanding to be exercised for Shares. At the Effective Time, proper provision shall be made for discharging all obligations under all outstanding unexercised Warrants by providing that each holder of a Warrant shall be entitled to solely receive, in consideration for the exercise and cancellation of such Warrant, an amount in cash equal to the product of (ix) the number of shares previously subject to such Warrant and (y) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such Warrant. In addition, at or prior to the Effective Time, with the prior consent of Parent, the Company shall give any required notice to redeem, and redeem or deposit funds sufficient to redeem, all of the outstanding shares of Class A Exchangeable Preferred Stock pursuant to the terms of ASAA International, Inc.'s (the issuer of such stock and a wholly-owned subsidiary of the Company) Certificate of Incorporation. At or prior to the Effective Time, with the prior consent of Buyer, the Company shall give any required notice to redeem, and redeem or deposit funds sufficient to redeem all of the Exchangeable Notes pursuant to the terms thereof. Stockholder Meeting. The Merger Agreement provides that unless Purchaser acquires at least 90% of the outstanding Shares in the Offer, if required by applicable law, the Company shall cause a special meeting of the Company's stockholders (the "Company Stockholder Meeting") to be duly called and held as soon as reasonably practicable after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve the Merger Agreement and the transactions contemplated thereby. At the Company Stockholder Meeting, Parent shall cause all the shares of the Company shall have approved the Merger; provided, however, that the then owned by Parent and the Offeror shall vote all Purchaser and any of their shares of Company Common Stock entitled subsidiaries or affiliates to vote thereon be voted in favor of the Merger. If the Purchaser acquires at least 90% of the outstanding Shares of the Company in the Offer, the Parent shall cause the Merger to be effected without a vote of the Company's stockholders in accordance with the provisions of Delaware Law. Representations and Warranties. The Merger Agreement contains various representations and warranties of the parties thereto. These include representations and warranties by the Company with respect to (i) due incorporation, existence, good standing, corporate power and authority or qualifications of the Company and subsidiaries of the Company; (ii) no statutecapitalization of the Company, ruleincluding the number of shares of capital stock of the Company outstanding, regulationthe number of shares reserved for issuance on the exercise of options and similar rights to purchase shares; (iii) the authorization, executive orderexecution, decreeand delivery of the Merger Agreement and the consummation of transactions contemplated thereby, ruling and the validity and enforceability thereof; (iv) subject to certain exceptions, the absence of consents and approvals necessary for consummation by the Company of the Merger, and the absence, except as disclosed, of any violations, breaches or injunction defaults which would result from compliance by the Company with any provision of the Merger Agreement; (v) compliance with the Securities Act and the Exchange Act, in connection with the Company SEC Reports (as defined in the Merger Agreement) filed by the Company with the Commission; (vi) compliance with the Exchange Act of the Company Disclosure Documents (as defined in the Merger Agreement), including the Schedule 14D-9; (vii) the absence of certain changes which would constitute a change or other order issued effect that is or would be materially adverse to the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole ("Company Material Adverse Effect") and the Company's conduct of business in the ordinary course of business consistent with past practices; (vii) except as disclosed, the absence of pending litigation or violation of any law by any court of competent jurisdiction the Company which is reasonably likely to have a Company Material Adverse Effect or other governmental which seeks to, or regulatory entity preventing is reasonably likely to delay or prevent the consummation of the Merger shall be in effectOffer or the Merger; provided(viii) certain employee benefit and ERISA matters; (ix) certain tax matters; (x) certain environmental matters; (xi) receipt of a financial opinion of DLJ; (xii) certain matters relating to affiliate transactions; (xiii) certain labor matters and (xiv) certain matters related to real property. Parent and the Purchaser have also made certain representations and warranties, howeverincluding with respect to (i) due incorporation, that each existence, good standing, corporate power and authority or qualifications of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.Company and

Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis), the Parent shall be entitled to designate at its option up to that number of directors, rounded to the next whole number, of the Company Board, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved be elected annually. The Board shall consist of (i) four individuals as may be designated from time to time by the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the MergerHM Partnership (each an "HM Designee"), (ii) no statutefour individuals, rulecollectively, regulationas may be designated from time to time by the KKR Partnerships (each a "KKR Designee"), (iii) the chief executive orderofficer of the Company from time to time serving (the "Chief Executive Officer") and (iv) any Independent Directors (to the 13 13 extent the KKR Partnerships, decreeon the one hand, ruling or injunction or and the HM Partnership on the other order issued hand, agree that there should be Independent Directors), such Independent Directors to be mutually agreed to between the HM Partnership and KKR Partnerships. If at any time the HM Partnership and its Affiliates beneficially own less than 50% of the aggregate number of shares of Stock acquired by any court of competent jurisdiction or other governmental or regulatory entity preventing them upon the consummation of the Merger (after giving effect to the transactions contemplated by the Act III Investment Agreement)(the "HM Shares"), but more than 10% of the then outstanding shares of Stock, then the number of HM Designees shall be in effect; providedreduced to the number (rounded up to the nearest whole number) that is determined by multiplying the number of directors comprising the Board by a fraction, howeverthe numerator which is the number of HM Shares, and the denominator of which is the number of then outstanding shares of Stock. The difference between (x) the number of HM Designees that each the HM Partnership was permitted to designate to the Board of Directors immediately prior to the application of the parties preceding sentence and (y) the number of HM Designees that the HM Partnership shall have used be permitted to designate immediately after giving effect to the application of the preceding sentence shall be reallocated to the KKR Partnerships. Notwithstanding anything in this Agreement to the contrary, if at any time the HM Partnership and its reasonable efforts Affiliates beneficially own less than 50% of the HM Shares and less than 10% of the then outstanding shares of Stock, then all of the HM Designees that the HM Partnership shall be permitted to designate shall be reallocated to the KKR Partnerships (or, if the last sentence of the next succeeding paragraph shall be applicable, then the number of HM Designees shall be reduced to zero and shall not be so reallocated) and the HM Partnership shall no longer have any such decree, ruling, injunction or order vacated, rights under this Article IV. If at any time the KKR Partnerships and (iii) all material governmental consents, orders and approvals legally required for their respective Affiliates beneficially own less than 50% of the aggregate number of shares of Stock acquired by them upon the consummation of the Merger shall have been obtained and any waiting period (and any extension thereofafter giving effect to the transactions contemplated by the Act III Investment Agreement) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ActKKR Shares"), but more than 10% of the then outstanding shares of stock, then the number of KKR Designees shall be reduced to the number (rounded up to the nearest whole number) that is determined by multiplying the number of directors comprising the Board by a fraction, the numerator of which is the number of KKR Shares and the denominator of which is the number of then outstanding shares of Stock. The difference between (x) the number of KKR Designees that the KKR Partnerships were permitted to designate to the Board of Directors immediately prior to the application of the preceding sentence and (y) the number of KKR Designees that the KKR Partnerships shall be permitted to designate immediately after giving effect to the application of the preceding sentence shall be reallocated to the HM Partnership. Notwithstanding anything in this Agreement to the contrary, if at any time the KKR Partnerships and their respective Affiliates beneficially own less than 50% of the KKR 14 14 Shares and less than 10% of the then outstanding shares of Stock, then all of the KKR Designees that the KKR Partnerships shall be permitted to designate shall be reallocated to the HM Partnership (or, if the last sentence of the next preceding paragraph shall be applicable, then the number of HM Designees shall be reduced to zero and shall not be so reallocated) and the KKR Partnerships shall no longer have any rights under antitrust laws this Article IV. The ownership percentages referred to in the two immediately preceding paragraphs will be tested annually as of applicable jurisdictions outside the United States applicable record date for the annual meeting of shareholders of the Company, with any then required reduction in the number of HM Designees or KKR Designees (and the related increase in the number of designees of the HM Partnership or the KKR Partnership, as applicable) to occur at the Merger annual meeting of shareholders of the Company. The board of directors of each subsidiary of the Company shall have expired or been terminatedconsist of not less than one HM Designee, one KKR Designee and the Chief Executive Officer.

Board Representation. The Merger Agreement provides that that, promptly after such time as upon the Offeror acquires purchase of Shares pursuant to the Offer which represent at least a majority of and from time to time thereafter until the outstanding Shares (on a fully diluted basis)Effective Time, the Parent shall be entitled to designate at its option up to that such number of directors, rounded to the next whole number, of the Company Board, subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power greater of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a) a majority of the entire Company Board. From Board plus one and after (b) the time that the Parent's designees constitute a majority product of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if (i) the number of directors on the Board and (ii) the percentage that the number of Shares owned by Acquisition Company Designees shall be reduced below two for any reason whatsoeverbears to the number of Shares outstanding less the number of Independent Directors (as defined below). The Company has agreed, any remaining Company Designee shall be entitled upon request by Parexx, xx promptly increase the size of the Board and/or use its reasonable efforts to designate a person secure the resignations, or the removal, of such number of directors as is necessary to fill such vacancy who shall be deemed enable Acquisition Company's designees to be a Company Designee for purposes of elected to the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons Board and to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed cause Acquisition Company's designees to be Company Designees for purposes of so elected. The Company's obligations to appoint designees to the Merger Agreement. Subject Board are subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 the rules promulgated thereunderthereunder (Schedule III hereto contains the information required under Rule 14f-1 promulgated under the Exchange Act). Conditions Precedent. The respective obligations of each party to effect In addition, the Merger are subject Agreement requires the Company to the fulfillment have at or all times prior to the Effective Time two members on the Board who were members of the following conditions: (i) if required by applicable law, Board on the stockholders date of the Merger Agreement and who are not employees of the Company shall have approved ("Independent Directors"). Following the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor election or appointment of the Mergerdesignees of Parent to the Board, (ii) no statutebut prior to the Effective Time, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation permitted termination of the Merger shall be in effect; providedAgreement by the Company, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation amendment of the Merger shall have been obtained Agreement or the Company's certificate of incorporation or by-laws requiring action by the Board, any extension of time for the performance of any of the obligations or other acts of Parent, and any waiting period (waiver of compliance with any of the agreements or conditions contained in the Merger Agreement must by authorized by a majority of the Independent Directors as well as a majority of all Board members. The Merger. The Merger Agreement provides that, subject to the terms and any extension thereof) conditions set forth in the Merger Agreement and the applicable provisions of the DGCL, Acquisition Company will be merged with and into the Company at the Effective Time and the separate existence of Acquisition Company will cease. All of the properties, rights, privileges, powers and franchises of the Company and Acquisition Company will vest in the Company, and all debts, liabilities and duties of the Company and Acquisition Company will become the debts, liabilities and duties of the Company. Subject to the provisions of the Merger Agreement and applicable provisions of the DGCL, the closing of the Merger will occur promptly following the satisfaction or, to the extent permitted under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Merger Agreement, waiver of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable conditions to the Merger shall have expired or been terminatedset forth in the Merger Agreement.

Board Representation. The Merger Agreement provides that promptly after such time as Promptly upon the Offeror acquires purchase of Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis)Offer, the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of (a) the total number of directors on the Company Board (after giving effect to the directors designated by Parent pursuant to this sentence) and (b) the percentage that the total votes represented by such number of Shares in the election of directors of the Company so purchased bears to the total votes represented by the number of Shares outstanding. In furtherance thereof, the Company shall, upon request by Parent, promptly increase the size of the Company Board and/or exercise its best efforts to secure the resignations of such number of its directors as is necessary to enable Parent's designees to be elected to the Company Board and shall take all actions to cause Parent's designees to be so elected to the Company Board. At such time, the Company shall also cause persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company Board of (i) each committee of the Company Board, subject (ii) each board of directors (or similar body) of each Company Subsidiary (as hereinafter defined) and (iii) each committee (or similar body) of each such board. The Company shall take, at its expense, all action required pursuant to compliance with Section 14(f) and Rule 14f-1 of the Exchange Act, as will make Act in order to fulfill its obligations under this Section 1.3 and shall include in the percentage of the Company's directors designated by the Parent equal Schedule 14D-9 to its stockholders such information with respect to the aggregate voting power Company and its officers and directors as is required by such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3. Parent will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section 14(f) and Rule 14f-1. The provisions of the Shares owned by the Offerorthis Section 1.3 are in addition to and shall not limit any rights which Acquisition Sub, the Parent or any of their affiliates (assuming the exercise may have as a holder or beneficial owner of all options to purchase Common Stock); provided, however, until the Effective Time, such Board Shares as a matter of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent law with respect to the purchase election of and payment for Shares pursuant to directors or otherwise. In the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time event that the Parent's designees constitute a majority of are elected to the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.A-3

Board Representation. The Merger Agreement provides that promptly after In the event the parties identified on Schedule 5(CC) cease to be members of the Board of Directors, the Company agrees until such time as the Offeror acquires Shares pursuant to the Offer which represent at least a majority 90% of the amount outstanding Shares (on a the Notes shall have been fully diluted basis)paid, the Parent Subscribers shall be entitled have the right, but not the obligation, from time to time to designate at its option up in writing an additional nominee to that number of directors, rounded to the next whole number, serve as a member of the Company Board, subject to compliance with Section 14(f) Board of the Exchange Act, as will make the percentage Directors of the Company's directors . The Company will nominate and secure the election of such designee as Director of the Company. All reasonable costs and expenses incurred in connection therewith by any such designated Director shall be reimbursed by the Parent equal Company to the aggregate voting power extent that the Company reimburses such expenses incurred by any directors of the Shares owned by Company. It is provided and agreed that the Offeror, actions and advice of any person while serving pursuant to this section as a Director at meetings of the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on be construed to be the date actions and advice of that person alone and not be construed as actions of any Subscriber as to any notice, requirements or rights of any Subscriber under the Transaction Documents, nor as action of any Subscriber to approve modifications, consents, amendments or waivers thereof; and all such actions or notices shall be deemed actions or notices to the Subscribers only when duly provided in writing and given in accordance with the provisions of the Merger Agreement (Transaction Documents. The relationship between the "Company Designees")and the Subscribers is, providedand shall at all times remain, solely that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, with a purchaser of its securities. The Subscribers neither undertake nor assume any actions relating responsibility or duty to the amendment Company to review, inspect, supervise, pass judgment upon, or termination inform the Company of any matter in connection with any phase of the Merger Agreement Company’s business, operations, or condition, financial or otherwise. The Company shall rely entirely upon their own judgment with respect to such matters, and any review, inspection, supervision, exercise of judgment, or information supplied to the Company by the Company Subscribers, or any extension of time requiring the approval representative or agent of the Company or waiver of Subscribers, in connection with any condition or rights such matter is for the protection of the Company thereunder or any action that would adversely affect the rights of the stockholders of Subscribers, and neither the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for nor any reason whatsoever, any remaining Company Designee shall be third party is entitled to designate a person to fill such vacancy who rely thereon. It shall be deemed to be a Company Designee for purposes default of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all a material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) obligation under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act Notes if Company does not comply with the requirements of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminatedthis section.

Board Representation. The Merger Agreement provides that (a) Subject to applicable Law and to the extent permitted by Nasdaq, promptly after such time as upon the Offeror acquires acceptance for payment of any Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (on a fully diluted basis)Offer, the Parent shall be entitled to designate at its option up to that such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company Boardas will give Merger Sub representation on the Board of Directors of the Company equal to the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section 2.03(a)) and (ii) the percentage that the number of Shares beneficially owned by Parent and/or Merger Sub (including Shares accepted for payment) bears to the number of Shares outstanding. Subject to applicable Law, including applicable fiduciary duties, and to the extent permitted by Nasdaq, the Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy applicable Nasdaq listing requirements). Subject to applicable Law, including applicable fiduciary duties, and to the extent permitted by Nasdaq, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 2.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make . At the percentage request of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable law, the Company has agreed shall promptly take, at its expense, all actions required pursuant to take all action requested by Section 14(f) and Rule 14f-1 under the Parent which is reasonably necessary Exchange Act in order to effect any such election, including mailing fulfill its obligations under this Section 2.03(a) and shall include in the Schedule 14D-9 or otherwise timely mail to its stockholders shareholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and affiliates required by Section 14(f) of and Rule 14f-1 under the Exchange Act and Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, the stockholders of the Company shall have approved the Merger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (iii) all material governmental consents, orders and approvals legally required for the consummation of the Merger shall have been obtained and any waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.