(c) In addition to the nomination rights set forth in Section 1(a) above, from the Effective Date, for so long as MDP Beneficially Owns shares of Common Stock representing at least 5% of the Original Amount of MDP, MDP shall have the right, but not the obligation, to designate a person (a Non-Voting Observer) to attend meetings of the Board (including any meetings of any committees thereof) in a non-voting observer capacity. Any such Non-Voting Observer shall be permitted to attend all meetings of the Board. MDP shall have the right to remove and replace its Non-Voting Observer at any time and from time to time. The Company shall furnish to any Non-Voting Observer (i) notices of Board meetings no later than, and using the same form of communication as, notice of Board meetings are furnished to Directors and (ii) copies of any materials prepared for meetings of the Board that are furnished to the Directors no later than the time such materials are furnished to the Directors; provided that failure to deliver notice, or materials, to such Non-Voting Observer in connection with such Non-Voting Observers right to attend and/or review materials with respect to, any meeting of the Board shall not, by itself, impair the validity of any action taken by such Board at such meeting. Such Non-Voting Observer shall be required to execute or otherwise become subject to any codes of conduct or confidentiality agreements of the Company generally applicable to Directors of the Company or as the Company reasonably requests.
(d) The Company shall pay all reasonable out-of-pocket expenses incurred by the Nominees and the Non-Voting Observer in connection with the performance of his or her duties as a Director or a Non-Voting Observer and in connection with his or her attendance at any meeting of the Board.
(e) 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).
(f) Director means any member of the Board.
(g) Original Amount of MDP means the aggregate number of shares of Common Stock held, directly or indirectly, by MDP 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 Companys capitalization.
(h) Person means any natural person, sole proprietorship, partnership, trust, unincorporated association, corporation, limited liability company, entity or governmental entity.
(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 MDP Beneficially Owns shall shorten the term of any incumbent Director.
(k) In the event that any Nominee shall cease to serve for any reason, MDP shall be entitled to designate such persons successor in accordance with this Agreement (regardless of MDPs 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 persons death, disability, disqualification, withdrawal as a nominee or for other reason is unavailable or unable to serve on the Board, MDP 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 MDP has the right to nominate Nominees under Section 1(a) 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 MDP, and the Companys Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws (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.