AT ANY
TIME BY THE DEATH, DISABILITY, RETIREMENT, RESIGNATION OR REMOVAL (WITH OR
WITHOUT CAUSE) OF ANY DIRECTOR DESIGNATED BY A STOCKHOLDER, SO LONG AS SUCH
STOCKHOLDER HAS THE RIGHT TO DESIGNATE A REPLACEMENT DESIGNEE AT SUCH TIME, THE
COMPANY AND THE OTHER STOCKHOLDER SHALL USE THEIR REASONABLE BEST EFFORTS TO
TAKE ALL APPROPRIATE ACTION NECESSARY TO CAUSE THE VACANCY CREATED THEREBY TO BE
FILLED BY THE REPLACEMENT DESIGNATED BY SUCH STOCKHOLDER.
(H)
POI ACQUISITION AND QDRF EACH SHALL BE ENTITLED TO DESIGNATE AN EMPLOYEE,
DIRECTOR OR OFFICER OF SUCH ENTITY OR ITS AFFILIATES TO SERVE AS A NONVOTING
OBSERVER TO THE BOARD OF DIRECTORS (AN "OBSERVER") AT ANY TIME THAT SUCH ENTITY
OWNS AT LEAST 5% OF THE OUTSTANDING COMMON SHARES. THE OBSERVER SHALL BE
PERMITTED TO ATTEND ALL MEETINGS OF THE BOARD OF DIRECTORS. THE COMPANY SHALL
PROVIDE THE OBSERVER, IN THE SAME MANNER AS PROVIDED TO DIRECTORS, NOTICE OF
SUCH MEETINGS AND COPIES OF ALL MATERIALS, FINANCIAL OR OTHERWISE, WHICH THE
COMPANY PROVIDES TO ITS DIRECTORS; PROVIDED, HOWEVER, THAT THE COMPANY MAY
EXCLUDE THE OBSERVER FROM ACCESS TO ANY MATERIALS OR FROM ANY MEETING, OR ANY
PORTION OF THE FOREGOING, IF THE COMPANY REASONABLY BELIEVES UPON ADVICE OF
COUNSEL THAT SUCH EXCLUSION IS REASONABLY NECESSARY TO PRESERVE THE
ATTORNEY-CLIENT PRIVILEGE, TO PROTECT CONFIDENTIAL OR PROPRIETARY INFORMATION OR
FOR OTHER SIMILAR REASONS.
(I)
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT DESIGNATION OF A DIRECTOR AS
A STOCKHOLDER DESIGNEE DOES NOT IN ITSELF PRECLUDE SUCH DIRECTOR FROM BEING
DEEMED "INDEPENDENT" FOR PURPOSES OF APPLICABLE RULES AND REGULATIONS OF THE
UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES EXCHANGE UPON
WHICH THE COMMON SHARES ARE LISTED (EACH SUCH QUALIFYING DIRECTOR, AN
"INDEPENDENT DESIGNEE").
6
(J)
FOR PURPOSES OF THIS AGREEMENT, A STOCKHOLDER SHALL BE DEEMED TO OWN ITS
PROPORTIONAL INTEREST OF ANY COMMON SHARES HELD BY A PERSON BENEFICIALLY OWNED
BY SUCH STOCKHOLDER (DETERMINED BASED ON SUCH STOCKHOLDER'S PRO RATA DIRECT OR
INDIRECT EQUITY INTEREST IN SUCH PERSON).
(K)
THE COMPANY SHALL REIMBURSE EACH STOCKHOLDER DESIGNEE AND EACH OBSERVER
FOR THEIR REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY THEM FOR THE PURPOSE OF
ATTENDING MEETINGS OF THE BOARD OF DIRECTORS, THE BOARD OF DIRECTORS OF ANY
SUBSIDIARY OF THE COMPANY OR THE RESPECTIVE COMMITTEES THEREOF.
SECTION 2.2
BYLAWS.
(A)
AT THE FIRST MEETING OF THE BOARD OF DIRECTORS
FOLLOWING THE DATE OF THIS AGREEMENT, THE BYLAWS OF THE COMPANY SHALL BE AMENDED
TO PROVIDE THAT (I) UNTIL SUCH TIME AS POI ACQUISITION CEASES TO OWN COMMON
SHARES IN AN AMOUNT EQUAL TO AT LEAST 20% OF THE COMMON SHARES ISSUED AND
OUTSTANDING AS OF THE EFFECTIVE DATE HEREOF, AT LEAST ONE OF THE ACQUISITION
DESIGNEES (OTHER THAN AN INDEPENDENT DESIGNEE) SHALL BE REQUIRED TO BE PRESENT
TO CONSTITUTE A QUORUM OF THE BOARD OF DIRECTORS AND (II) UNTIL SUCH TIME AS
QDRF CEASES TO OWN COMMON SHARES IN AN AMOUNT EQUAL TO AT LEAST 20% OF THE
COMMON SHARES ISSUED AND OUTSTANDING AS OF THE EFFECTIVE DATE HEREOF, AT LEAST