(f)“Beneficially Own” shall mean that a specified person has or shares the right, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, to vote shares of capital stock of the Company. “Affiliate” of any person shall mean any other person controlled by, controlling or under common control with such person; where “control” (including, with its correlative meanings, “controlling,” “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities, by contract or otherwise).
(g)“Director” means any member of the Board.
(h)“Original Amount of THL Stockholder” means the aggregate number of shares of Common Stock held, directly or indirectly, by THL Stockholder immediately prior to the consummation of the IPO, as such number may be adjusted from time to time for any reorganization, recapitalization, stock dividend, stock split, reverse stock split or other similar changes in the Company’s capitalization.
(i)“Total Number of Directors” means the total number of Directors comprising the Board.
(j)No reduction in the number of shares of Common Stock that THL Stockholder Beneficially Owns shall shorten the term of any incumbent director. At the Effective Date, the Board shall be comprised of nine members and the initial Nominees shall be Thomas J. Leonard, Darren M. Friedman, Joshua M. Nelson, Gary L. Gottlieb, Megan M. Preiner, John L. Workman, Michael A. Bell, Scott M. Sperling and Diane B. Patrick.
(k)In the event that any Nominee shall cease to serve for any reason, THL Stockholder shall be entitled to designate such person’s successor in accordance with this Agreement (regardless of THL Stockholder’s beneficial ownership in the Company at the time of such vacancy) and the Board shall promptly fill the vacancy with such successor nominee; it being understood that any such designee shall serve the remainder of the term of the director whom such designee replaces.
(l)If a Nominee is not appointed or elected to the Board because of such person’s death, disability, disqualification, withdrawal as a nominee or for other reason is unavailable or unable to serve on the Board, THL Stockholder shall be entitled to designate promptly another nominee and the director position for which the original Nominee was nominated shall not be filled pending such designation.
(m)So long as THL Stockholder has the right to nominate Nominees under Section 1(b) or any such Nominee is serving on the Board, the Company shall use its reasonable best efforts to maintain in effect at all times directors and officers indemnity insurance coverage reasonably satisfactory to THL Stockholder, and the Company’s Second Amended and Restated Certificate of Incorporation, the Third Amended and Restated Bylaws and the Indemnity Agreement executed by each Nominee (each as may be further amended, supplemented or waived in accordance with its terms) shall at all times provide for indemnification, exculpation and advancement of expenses to the fullest extent permitted under applicable law.