(whether as a result of dilution (subject to Section 9
of this Agreement), Transfer or otherwise) for sixty (60) consecutive days (the
"Investor Nominee Termination Event").
(b)
The number of Investor Nominees the Investor shall have the right
to designate shall first be determined as of the close of business on the date
of the Investment Triggering Event and thereafter shall be determined as of the
close of business on the record date for each meeting of the stockholders during
the Representation Term at which directors of the Company are to be elected
(each such date, a "Representation Date"). Subject to the terms and conditions
of this Agreement, from and after the date of the Investment Triggering Event
until the date of an Investor Nominee Termination Event, the Investor shall have
the right to designate up to a number of Investor Nominees equal to (x) the
Investor's Interest multiplied by (y) the total number of Directors on the Board
at the time of the nomination, including any vacancies that may have occurred
since the prior annual meeting and remain unfilled, rounded to the nearest whole
number.
Notwithstanding the foregoing, for so long as the calculation of the
Investor's Interest includes the Investor's Debt Investment and no Event of
Default (as defined under the Credit Facility) has occurred, the number of
Investor Nominees that the Investor shall have the right to designate shall not
exceed two (2) Investor Nominees.
(c)
If an Event of Default (as defined under the Credit Facility) has
occurred and is continuing, in addition to the Investor Nominees the Investor is
entitled to designated pursuant to paragraph (b) above, the Investor shall be
entitled to designate an additional two (2) Investor Nominees.
(d)
Notwithstanding paragraphs (b) and (c) above, in no event shall the
aggregate number of Investor Nominees the Investor is entitled to designate
exceed (i) if the Board is then comprised of an odd number of Directors, then
50% of the number of Directors, rounded down to the nearest whole number and
(ii) if the Board is then comprised of an even number of Directors, then one
less than half the number of Directors.
3
(e)
If the Investor is entitled to nominate more than one (1) Investor
Nominee, no more than one (1) of the Investor Nominees may be an Affiliate of
the Investor. If the Investor is entitled to nominate more than two (2) Investor
Nominees, no more than one (1) of the Investor Nominees may be an Affiliate of
the Investor. If the Investor is entitled to nominate more than three (3)
Investor Nominees, no more than two (2) of the Investor Nominees may be an
Affiliate of the Investor (each, an "Affiliate Nominee") and not more than one
(1) of the Affiliate Nominees may be a director, manager, officer or other
employee of the Investor (an "Investor Insider"). Notwithstanding anything to
the contrary herein, the Investor will not nominate as an Investor Nominee any
individual who previously served as a