election, there would be more
than two (2) Behringer Nominees serving as directors on the MF REIT Board at any
given time.
(i)
MF REIT acknowledges and agrees that the individuals set forth in
Schedule 8.4 (the "Initial Nominees") are deemed reasonably acceptable to MF
REIT and the Nominating Committee of the MF REIT Board as of the date hereof and
each Initial Nominee shall continue to be acceptable until such time as actions
(if
57
any) by the applicable Initial Nominee would require disclosure pursuant to
Items 401(f)(2) through 401(f)(8) of Regulation S-K promulgated under the
Exchange Act.
(ii)
If a Behringer Nominee is not an Initial Nominee and if the Nominating
Committee of the MF REIT Board (or any other committee of the MF REIT Board
serving such function) reasonably determines that any such Behringer Nominee is
not reasonably acceptable, the MF REIT Board may require that Services Holdings
designate an alternative director nominee; otherwise, such Behringer Nominee
shall be deemed reasonably acceptable to MF REIT and the Nominating Committee of
the MF REIT Board.
(b)
At each annual meeting of MF REIT's stockholders, special meeting of
MF REIT's stockholders called for the purpose of electing directors of MF REIT,
and at any adjournment or postponement thereof, the MF REIT Board (or a duly
authorized committee thereof) shall, subject to Section 8.4(a) above, (i)
nominate each Behringer Nominee for election as a member of the MF REIT Board
and (ii) include each Behringer Nominee in any proxy statement and related
materials used by MF REIT in respect of the election to which such nomination
pertains. Subject to Section 8.4(a) above, MF REIT agrees to use its reasonable
best efforts (to the extent within the control of MF REIT) to cause each
Behringer Nominee to be elected to the MF REIT Board. Subject to the MF REIT
Organizational Documents, if a Behringer Nominee is not elected a member of the
MF REIT Board at a stockholders meeting, (i) Services Holdings may designate a
replacement Behringer Nominee to serve as director, subject to Section 8.4(a),
and (ii) the MF REIT Board shall appoint (as promptly as practicable) such
replacement Behringer Nominee to the MF REIT Board, including, if necessary, by
adding additional directorships to the MF REIT Board. Upon the death,
resignation or removal of a Behringer Nominee that is a member of the MF REIT
Board (or has been nominated), Services Holdings may designate a replacement
Behringer Nominee to fill such vacancy (or nomination), and MF REIT shall
appoint such replacement Behringer Nominee to the MF REIT Board as promptly as
practicable (or use the same reasonable best efforts to cause such Behringer
Nominee to be elected to the MF REIT Board as it was obligated to use with
respect to the original Behringer Nominee), subject to Section 8.4(a).
Notwithstanding the foregoing or anything else in this Agreement to the
contrary, (A) there shall not be more than two (2) Behringer Nominees serving as
directors on the MF