Common use of Board Composition and Representation Clause in Contracts

Board Composition and Representation. (a) On the Closing Date, the Corporation agrees that the Board shall consist of seven directors. Of such directors, the Corporation covenants and agrees to appoint, within 15 days of the Closing Date, one individual selected by the Investor to serve on the Board (the “Board Designee”) until the next meeting of Shareholders at which the election of directors to the Board is considered. The Corporation covenants and agrees that it will procure the resignation of one director to facilitate the change to the composition of the Board contemplated by the preceding sentence. (b) The Corporation covenants and agrees that, in addition to the right set out in Section 3.1(a), the Investor shall have the right to source for consideration by the Board (or the Corporate Governance and Nominating Committee) an additional individual who is Independent as a candidate to serve on the Board as the eighth director (an “Independent Board Candidate”). The Independent Board Candidate sourced by the Investor shall be mutually acceptable to the Board (or the Corporate Governance and Nominating Committee), acting reasonably, and if an individual sourced by the Investor is not mutually acceptable to the Board (or the Corporate Governance and Nominating Committee), the Investor shall continue to source individuals who are Independent until the Board (or the Corporate Governance and Nominating Committee) approves such an individual as an Independent Board Candidate. The Investor shall, as expeditiously as possible following the Closing Date, source such Independent Board Candidate (and make any successive suggestions that are required until the Independent Board Candidate is accepted by the Board (or the Corporate Governance and Nominating Committee)), acting reasonably, and, promptly following the identification of an acceptable Independent Board Candidate and in any event no later than 90 days following the Closing Date, the Board shall pass a resolution to: (i) increase the size of the Board by one person from seven directors to eight directors; and (ii) pass a resolution appointing the Independent Board Candidate to the Board. (c) As long as the Investor owns in the aggregate 10% or more of the issued and outstanding Common Shares, the Investor shall continue to be entitled to designate one Board Designee and to source one Independent Board Candidate for election pursuant to the procedures set out in Section 3.1(b). For greater certainty, the Investor shall have the right but not the obligation to nominate a Board Designee. ​ ​ (d) Notwithstanding any other provision of this Agreement, if at any time the Investor has a Triggering Ownership Percentage, the Investor agrees to take all commercially reasonable actions within its control to ensure that at least 50% of the directors on the Board are Independent. (e) The Corporation shall in respect of every meeting of Shareholders at which the election of directors to the Board is considered, and at every reconvened meeting following an adjournment or postponement thereof, nominate for election to the Board one Board Designee and one Independent Board Candidate, and shall use its commercially reasonable efforts to obtain Shareholder approval for the election of the Board Designee and Independent Board Candidate at such meeting (including by soliciting proxies in favour of the Board Designee and Independent Board Candidate) and to that end, the Corporation shall (i) support the Board Designee and Independent Board Candidate for election in a manner no less rigorous or favourable than the manner in which the Corporation supports all of its other nominees, and (ii) use commercially reasonable efforts to cause management of the Corporation to vote their Common Shares, and the Common Shares in respect of which management is granted a discretionary proxy, in favour of the election of the Board Designee and Independent Board Candidate at such meeting. (f) In the event that a Board Designee is not elected to the Board at a meeting of Shareholders or a Board Designee resigns as a director or otherwise refuses to or is unable to serve as a director for any reason, including as a result of death or disability, the Investor shall be entitled to designate a replacement director and the Corporation agrees to appoint, subject to applicable laws and TSX requirements, such individual to the Board to serve as a Board Designee until the next meeting of Shareholders at which the election of directors to the Board is considered. (g) In the event that an Independent Board Candidate is not elected to the Board at a meeting of Shareholders, resigns as a director or otherwise refuses to or is unable to serve as a director for any reason including as a result of death or disability, or if the Investor determines at any time and for good reason that an Independent Board Candidate is not a suitable candidate for director, the Investor shall be entitled to source for consideration by the Board (or the Corporate Governance and Nominating Committee) a replacement director that is acceptable to the Board (or the Corporate Governance and Nominating Committee), acting reasonably, in accordance with the procedures set out in Section 3.1(b), and the Corporation agrees to appoint, subject to applicable laws and TSX requirements, such individual to the Board to serve as an Independent Board Candidate until the next meeting of Shareholders at which the election of directors to the Board is considered. (h) As long as the Investor owns in the aggregate 10% or more of the issued and outstanding Common Shares and has exercised its right to nominate a Board Designee, the Investor shall be entitled to designate its Board Designee to any special committee formed by the Corporation to consider a material transaction; provided that the Board Designee is not in a conflict of interest in relation to such transaction, as determined by the Board, acting reasonably. (i) Any employee of the Investor who serves as a Board Designee shall not be entitled to any salary or compensation from the Corporation for his or her service as a director of the Corporation. Notwithstanding the foregoing, each Board Designee shall be entitled to the benefit of customary director’s and officer’s liability insurance and a contractual indemnity agreement with the Corporation in substantially the form attached hereto as Schedule A. All directors and officers (including existing directors and officers) of the Corporation shall be ​ ​ entitled to the same director’s and officer’s liability insurance and the same form of contractual indemnity agreement with Corporation as each Board Designee. (j) The Investor shall advise the Corporation of the identity of any Board Designee at least ten Business Days prior to the date on which proxy solicitation materials are to be mailed (as advised by the Corporation to the Investor) for purposes of any meeting of Shareholders at which the election of directors to the Board is to be considered. If the Investor does not advise the Corporation of the identity of any such Board Designee prior to such deadline, then the Investor shall be deemed to have nominated its incumbent nominee. The Corporation shall advise the Investor of the mailing date of any such proxy solicitation materials at least 20 Business Days prior to such date.

Board Composition and Representation. (a) On The Board shall consist at all times of an odd number of Directors. As of the Initial Closing Date, the Corporation agrees that the Board it shall consist of seven directors. Of such directors, the Corporation covenants and agrees to appoint, within 15 days of the Closing Datehave five (5) Directors, one individual selected of which shall be appointed on the Initial Closing Date by the Lead Investor and appointed by the Board. The Lead Investor shall be entitled to serve on designate nominees for election or appointment to the Board (the “Board Designee”"DH Directors") until the next meeting of Shareholders at which the election of directors to the Board is considered. The Corporation covenants and agrees that it will procure the resignation of one director to facilitate the change to the composition of the Board contemplated by the preceding sentence.as follows: (b) The Corporation covenants and agrees that, in addition to the right set out in Section 3.1(a), the Investor shall have the right to source for consideration by the Board (or the Corporate Governance and Nominating Committee) an additional individual who is Independent as a candidate to serve on the Board as the eighth director (an “Independent Board Candidate”). The Independent Board Candidate sourced by the Investor shall be mutually acceptable to the Board (or the Corporate Governance and Nominating Committee), acting reasonably, and if an individual sourced by the Investor is not mutually acceptable to the Board (or the Corporate Governance and Nominating Committee), the Investor shall continue to source individuals who are Independent until the Board (or the Corporate Governance and Nominating Committee) approves such an individual as an Independent Board Candidate. The Investor shall, as expeditiously as possible following the Closing Date, source such Independent Board Candidate (and make any successive suggestions that are required until the Independent Board Candidate is accepted by the Board (or the Corporate Governance and Nominating Committee)), acting reasonably, and, promptly following the identification of an acceptable Independent Board Candidate and in any event no later than 90 days following the Closing Date, the Board shall pass a resolution to: (i) increase the size of the Board by one person from seven directors to eight directors; and (ii) pass a resolution appointing the Independent Board Candidate to the Board. (c) As as long as the Investor owns Lead Investor, together with its Affiliates, own in the aggregate 10% or more of the issued and outstanding Common Shares, the Investor shall continue to be entitled to designate one Board Designee and to source one Independent Board Candidate for election pursuant to the procedures set out in Section 3.1(b). For greater certainty, the Investor shall have the right but not the obligation to nominate a Board Designee. ​ ​ (d) Notwithstanding any other provision of this Agreement, if at any time the Investor has a Triggering Ownership Percentage, the Investor agrees to take all commercially reasonable actions within its control to ensure that at least 50% of the directors on the Board are Independent. (e) The Corporation shall in respect of every meeting of Shareholders at which the election of directors to the Board is considered, and at every reconvened meeting following an adjournment or postponement thereof, nominate for election to the Board one Board Designee and one Independent Board Candidate, and shall use its commercially reasonable efforts to obtain Shareholder approval for the election of the Board Designee and Independent Board Candidate at such meeting (including by soliciting proxies in favour of the Board Designee and Independent Board Candidate) and to that end, the Corporation shall (i) support the Board Designee and Independent Board Candidate for election in a manner no less rigorous or favourable than the manner in which the Corporation supports all of its other nominees, and (ii) use commercially reasonable efforts to cause management Equity Shares of the Corporation to vote their Common Shares, and the Common Shares in respect of which management is granted on a discretionary proxy, in favour of the election of the Board Designee and Independent Board Candidate at such meeting. (f) In the event that a Board Designee is not elected to the Board at a meeting of Shareholders or a Board Designee resigns as a director or otherwise refuses to or is unable to serve as a director for any reason, including as a result of death or disabilityFully Diluted Basis, the Lead Investor shall be entitled to designate a replacement director and one (1) DH Director in addition to having the right to vote for the directors elected by the Shareholders of the Corporation; (ii) provided that the Lead Investor consents to an increase in the size of the Board pursuant to Section 2.1 of this Agreement, should the Board be expanded to include another Director, the Corporation agrees will ensure that another outside Director will be added to appointthe Board, subject to applicable laws and TSX requirements, such individual to increasing the Board to serve as a Board Designee until the next meeting of Shareholders at which the election of directors to the Board is considered. seven (g7) In the event that an Independent Board Candidate is not elected to the Board at a meeting of Shareholders, resigns as a director or otherwise refuses to or is unable to serve as a director for any reason including as a result of death or disability, or if the Investor determines at any time and for good reason that an Independent Board Candidate is not a suitable candidate for director, the Investor shall be entitled to source for consideration by the Board (or the Corporate Governance and Nominating Committee) a replacement director that is acceptable to the Board (or the Corporate Governance and Nominating Committee), acting reasonably, in accordance with the procedures set out in Section 3.1(b), and the Corporation agrees to appoint, subject to applicable laws and TSX requirements, such individual to the Board to serve as an Independent Board Candidate until the next meeting of Shareholders at which the election of directors to the Board is considered. (h) As Directors. So long as the Investor owns Lead Investor, together with its Affiliates, own in the aggregate 10% or more of the issued and outstanding Common Equity Shares of the Corporation on a Fully Diluted Basis, the Lead Investor shall have the right to designate an additional outside DH Director to the Board who shall be independent of the Lead Investor and the Corporation. The parties hereto acknowledge and agree that the Lead Investor is entitled to designate and appoint certain Directors to the Board pursuant to the terms of the Series 8 Preferred Shares and has exercised its that this provision is intended to be in furtherance of such rights. In no event will this Section 4.1 be construed to duplicate the rights granted to the Lead Investor pursuant to the terms of the Series 8 Preferred Shares. In the event that the Lead Investor no longer holds any Series 8 Preferred Shares and is therefore not entitled to elect Directors to the Board pursuant to the terms thereof, this Section 4.1 shall survive and remain in full force and effect and the Lead Investor shall have the right to nominate designate Directors in accordance with the terms hereof. (b) For so long as the Lead Investor, together with its Affiliates, own in the aggregate 10% or more of the issued and outstanding Equity Shares of the Corporation on a Board DesigneeFully Diluted Basis, one DH Director shall have the right to be a member of any standing committee of the Board. (c) Subject to the DH Director(s) consenting to serve as a Director of the Corporation, for so long as the Lead Investor, together with its Affiliates, own in the aggregate 10% or more of the issued and outstanding Equity Shares of the Corporation on a Fully Diluted Basis, the Corporation shall cause the DH Director(s) to be included as nominees proposed by the Board to the Shareholders for election to the Board of each future meeting of the Shareholders where Directors are to be elected by Shareholders. The Corporation shall use its commercially reasonable efforts to cause the election of such DH Director(s) at such meetings and shall solicit proxies in favour of the election of such DH Director(s) at such meetings. At all such meetings where Shareholders shall elect Directors, the Corporation shall, subject to applicable law, ensure that Shareholders will only be able to vote "for" the election of a Director or in the alternative, have the option to "withhold" their vote. (d) In the event that a DH Director shall cease to serve as a Director of the Corporation, whether due to such DH Director's death, disability, resignation or removal, the Corporation shall cause the Board to appoint a replacement DH Director designated by the Lead Investor to fill the vacancy created by such death, disability, resignation or removal. (e) Subject to applicable law, the designation of a Director by the Lead Investor shall be entitled made by written notice sent to designate its Board Designee to any special committee formed by the Corporation to consider a material transaction; provided that the Board Designee is not in a conflict of interest in relation to such transaction, as determined by the Board, acting reasonably. (i) Any employee of the Investor who serves as a Board Designee shall not be entitled to any salary or compensation from the Corporation for his or her service as a director of the Corporation. Notwithstanding the foregoing, each Board Designee shall be entitled prior to the benefit mailing of customary director’s and officer’s liability insurance and a contractual indemnity agreement shareholder materials with the Corporation in substantially the form attached hereto as Schedule A. All directors and officers (including existing directors and officers) respect to an annual or special meeting of the Corporation shall be ​ ​ entitled to the same director’s and officer’s liability insurance and the same form of contractual indemnity agreement with Corporation as each Board Designee. (j) Shareholders. The Lead Investor shall advise the Corporation of the identity of any Board Designee the DH Director(s) at least ten Business Days fifty (50) days prior to the date on which proxy solicitation materials are to be mailed (as advised by the Corporation to the Investor) for purposes of any meeting of Shareholders at which directors of the election of directors to the Board is Corporation are to be consideredelected or within ten (10) days of being notified of the record date for such a meeting. If the Lead Investor does not advise the Corporation of the identity of any such Board Designee DH Director(s) prior to such deadline, then the Lead Investor shall will be deemed to have nominated its incumbent nominee. The Corporation shall advise the Investor of the mailing date of any such proxy solicitation materials at least 20 Business Days prior to such datenominee(s).