Board Composition. (a) Subject to the terms of this Section 5, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee. (b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board (the “Director Conditions”). Without limiting the foregoing, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and the Board in the same manner as the Nominating and Corporate Governance Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchange. (c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5. (d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5. (e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board. (f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
Appears in 3 contracts
Sources: Investor Agreement (SK Ecoplant Co., Ltd.), Investor Agreement (SK Ecoplant Co., Ltd.), Investor Agreement (Bloom Energy Corp)
Board Composition. (a) Subject to At the terms of this Section 5, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of Effective Time the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease increase the size of the Board if such decrease would require the resignation board of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company (the “Board”) by the Company’s Nominating two directors and Corporate Governance Committee cause ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to be appointed to the Board until the first annual or special meeting of stockholders of the Company at which directors of the Company are to be elected immediately following the Effective Time; provided, that in the event that the Representative’s Ownership Percentage is less than 10% at any time after the Effective Time and prior to such annual or special meeting of stockholders, the Company shall have the right to remove ▇▇▇▇▇▇ policy ▇▇▇▇▇▇ from the Board effective immediately as of such date; and Section 16 reporting proceduresprovided, further, that in the event HWP Capital Partners II, L.P.’s Ownership Percentage is less than 5% at any time after the Effective Time and prior to such annual or special meeting of stockholders, the Company shall have the right to remove ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ from the Board effective immediately as of such date.
(ivb) be able to dedicate sufficient time and resources for At the diligent performance first annual or special meeting of stockholders of the duties required of a member Company after the Effective Time at which directors of the Company are to be elected and at any subsequent annual or special meeting of stockholders of the Company at which directors of the Company are to be elected, for so long as the Representative’s Ownership Percentage is equal to or greater than 10%, the Representative, on its own behalf, shall have the right to nominate for election to the Board one director (the “Director ConditionsDesignee”). Without limiting , and the foregoingCompany shall, each proposed Investor Designee shall be at any such annual or special meeting of stockholders of the Company, subject to satisfaction the fulfillment of the criteria requirements set forth in Section 2.1(c), nominate the Designee for election to the Board membership established by and use commercially reasonable efforts to cause the Nominating and Corporate Governance Committee Designee to be elected as a director of the Board. Notwithstanding the foregoing in this Section 2.1(b), including on the director qualification criteria thereof, as determined in the reasonable and good faith discretion date following a mandatory conversion of the Nominating and Corporate Governance Committee Company Preferred Stock into Company Common Stock in accordance with the terms of the Certificates of Designations governing the Company Preferred Stock, the Representative, on its own behalf, shall cease to have any right to nominate a Designee for election to the Board and the Board in Company shall have the same manner as the Nominating and Corporate Governance Committee of right to remove such Designee serving on the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee effective immediately as of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchangedate.
(c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior Any designee for election to the expiration of the Director Period, the Investor Board in accordance with this Section 2 shall have the right to select a replacement Investor Designee, (i) be reasonably acceptable to the Board and subject to compliance with the Director ConditionsBoard’s Corporate Governance Committee (the “Governance Committee”), it being agreed that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company▇▇▇▇▇▇ ▇▇▇▇▇▇ are so acceptable, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from shall comply in all respects with the Company, such Investor ’s corporate governance guidelines and the Company’s code of business conduct and ethics as in effect from time to time. The Representative shall notify the Company of any proposed Designee shall either promptly (x) destroy all confidential information in writing no later than the latest date on which stockholders of the Company that he or she received may make nominations to the Board in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return accordance with the Bylaws, together with all information concerning such nominee required to be delivered to the Company by the Bylaws then in effect and such other information reasonably requested by the Company; provided that in each such case, all confidential such information is generally required to be delivered to the Company by the other outside directors of the Company (the “Nominee Disclosure Information”); provided, further that he or she received in his or her capacity the event the Representative fails to provide any such notice, the Designee shall be the person then serving as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) as long as the Representative provides the Nominee Disclosure Information to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed promptly upon request by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable)Company.
Appears in 2 contracts
Sources: Stockholders Agreement (Amn Healthcare Services Inc), Merger Agreement (Amn Healthcare Services Inc)
Board Composition. (a) Subject During the Director Period, the Designated Holders holding the Purchased Securities (acting together) may nominate one director if the total number of directors of the Company is eight or less, and two directors if the total number of directors of the Company is twelve or more, to be elected or appointed to the terms of this Section 5Board (any such director, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the an “Investor Designee”) as a director ); provided, however, that any Investor Designee must meet the Board Qualifications and be reasonably acceptable to the Board at the time of his or her designation. During the Company for a term expiring Director Period, at each meeting of the Company’s next annual meeting Members (as defined in the Articles) at which the appointment of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior directors is to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Periodconsidered, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor such Designated Holders to serve as the Investor Designee) for election appointment or re-electionappointment, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be electeddirector, and use commercially reasonable efforts to cause the Investor Designee to be elected appointed or re-electedappointed, including providing the same level of support as is provided for other nominees. Upon The Company shall use reasonable best efforts to cause each Investor Designee to be appointed to the Board (including voting all unrestricted proxies in favor of the election of such Investor Designee and including recommending approval of such Investor Designee’s appointment to the Board) and shall not take any action designed to diminish the prospects of such Investor Designee(s) of being appointed to the Board. At each subsequent re-appointment of an Investor Designee, such Investor Designee shall be assigned to a class with a full term of three (3) years. During the Director Period, the Board or the Company will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee. The Investor’s rights pursuant to this Section 5 with respect to the Investor Designee shall not be transferable to any Third Party without the Company’s prior written consent.
(b) Subject to any fiduciary obligations under applicable Law and the terms of this Section 5, effective as of the Closing Date, the Board will appoint the Investor Designee as a Class II director of the Company for a term expiring at the Company’s 2025 annual meeting of shareholders or upon such Investor Designee’s earlier death, disability, resignation, vacation of office or removal (including removal by operation of Law).
(c) At the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(bd) As a condition to any appointment or nomination for election appointment to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee (the “NCG Committee”) and those the Board (the “Board Qualifications”), (ii) meet the qualifications mandated by applicable Law, (iiiii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, to the extent required by the Company to be entered into by all directors, (iiiiv) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (ivv) be able to dedicate sufficient time and resources for the diligent performance of the duties reasonably required of a member of the Board (the “Director Conditions”). Without limiting The NCG Committee and the foregoing, each proposed Board shall determine whether the Investor Designee shall be subject to satisfaction of has met the criteria for Board membership established by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined Qualifications in the their reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and the Board discretion, applied in the same manner as the Nominating and Corporate Governance NCG Committee of the Board and the Board would consider any candidate for Board membership; provided, that, the Investor Designee may, if the Investor so desires, be an officer, director or employee of the Investor or its Affiliates. The Board or the Nominating and Corporate Governance NCG Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchangethe Nasdaq Global Select Market.
(ce) If an Investor Designee resigns from the Board, is removedremoved as a director of the Company in accordance with the Articles, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, or otherwise vacates their office as a director in accordance with Article 24.1 (Disqualification of Directors) of the Articles, in each case prior to the expiration of the Director Period, the Investor Designated Holders holding Purchased Securities (acting together) shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(df) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii5(d) and the foregoing, and subject to Section 7.169.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance governing body) of SK ecoplant Investor and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or and the SVP, as applicable) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backupsbackups created pursuant to bona fide document retention policies), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(eg) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(fh) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider considers (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
(i) The Company shall add each Investor Designee as a beneficiary to the Company’s directors’ and officers’ liability insurance policy effective from the Closing Date (or such date as such Investor Designee is appointed pursuant to this Section 5) and shall provide all other contractual or insurance director liability or indemnification coverage provided to other members of the Board.
Appears in 2 contracts
Sources: Investor Agreement (Penguin Solutions, Inc.), Securities Purchase Agreement (SMART Global Holdings, Inc.)
Board Composition. (a) Subject to the terms of this Section 5, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement that [•] shall be a condition precedent to the obligation of each of the Company and the initial Investor to consummate the Second ClosingDesignee. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board (the “Director Conditions”). Without limiting the foregoing, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and the Board in the same manner as the Nominating and Corporate Governance Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchange.
(c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
Appears in 1 contract
Board Composition. (a) Subject to the terms of this Section 5, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement that [●] shall be a condition precedent to the obligation of each of the Company and the initial Investor to consummate the Second ClosingDesignee. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board (the “Director Conditions”). Without limiting the foregoing, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and the Board in the same manner as the Nominating and Corporate Governance Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchange.
(c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
Appears in 1 contract
Sources: Securities Purchase Agreement (SK Ecoplant Co., Ltd.)
Board Composition. (a) Subject Prior to December 31, 2010, and in accordance with the terms certificate of this Section 5, effective as incorporation and bylaws of the Second Closing Date, the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee increase its size to twelve (12) members. Concurrently with or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days promptly following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease increase in the size of the Board if such decrease would require Board, the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election Company shall appoint to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, Board ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as a Class B director, and ▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of as a member of the Board (the “Director Conditions”). Without limiting the foregoingClass C director, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established after a determination by the Nominating and Board’s Corporate Governance Committee that such individuals are qualified and are independent under the rules and regulations of the SEC and The NASDAQ Stock Market LLC, provided, however, that if the Corporate Governance Committee does not find such individuals qualified and independent or if such individuals should withdraw their nomination prior to accepting their initial appointment to the Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance Committee representatives of the Board and the Board Golconda Group shall work together in the same manner as the Nominating and Corporate Governance Committee of good faith to propose alternative director nominees to the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchange.
(c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, Golconda Group and determined to be qualified and independent by the Corporate Governance Committee. The Company shall provide nominate ▇▇. ▇▇▇▇▇▇ for re-election to the Board at the 2011 Annual Meeting and ▇▇. ▇▇▇▇▇▇ for re-election to the Board at the 2012 annual meeting of stockholders of the Company with (such meeting, including any adjournment thereof, the name “2012 Annual Meeting”). For purposes of this Agreement, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and relevant background information for such replacement Investor Designee. Subject ▇▇▇▇ ▇▇▇▇▇▇, or the director nominees in lieu thereof determined to be qualified and independent and appointed to the Board pursuant to the terms of this Section 51(a), within twenty are hereinafter referred to as the “New Nominees.”
(20b) days following receipt The Company shall, prior to each of the 2011 Annual Meeting and 2012 Annual Meeting, file a definitive proxy statement with the SEC which includes such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable applicable New Nominee nominated for any breach re-election as is required by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company federal securities laws in connection with his or her role nomination by the Company; provided that it shall be a precondition to each such nomination that the New Nominees cooperate and provide such required information to the Company as the Company may request. The Board shall recommend that the Company’s stockholders vote directly or by proxy in favor of, and shall otherwise use reasonable commercial efforts to cause, the election of ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ at the 2011 Annual Meeting and of ▇▇▇▇ ▇▇▇▇▇▇ at the 2012 Annual Meeting.
(c) The New Nominees, upon appointment and continuing through their possible re-election to the Board, will serve as integral members of the Board and be governed by the same protections and obligations regarding confidentiality, conflicts of interests, fiduciary duties, trading and disclosure policies and other governance guidelines, including the Company’s Code of Conduct, and shall have the same rights and benefits, including (but not limited to) with respect to insurance, indemnification, compensation and fees, as are applicable to all independent directors of the Company.
(d) For the avoidance of doubt, the Company intends to nominate for election to the Board:
(i) at the 2011 Annual Meeting, in addition to four (4) Class B directors (including ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or other applicable New Nominee), (i) two (2) Class A directors and (ii) one (1) Class C director;
(ii) at the 2012 Annual Meeting, in addition to ▇▇▇▇ ▇▇▇▇▇▇ or other applicable New Nominee, as a director Class C director, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or service on other applicable New Nominee (in the event such person did not receive an 80% vote of stockholders at the 2011 Annual Meeting) as a Class B director, together with such other individuals as the Board or deems appropriate; and
(iii) at the 2013 annual meeting of stockholders of the Company (such meeting, including any committeeadjournment thereof, the “2013 Annual Meeting”), and subsequent annual meetings of the stockholders of the Company, such individuals as the Board deems appropriate.
(e) The Company shall not increase the size of the Board beyond twelve (12) members without the approval of the Company’s stockholders. The Investor Designee Company will be entitled announce a current intention of the Board to reimbursement from reduce the Company size of out the Board over time through the non-replacement of pocket expenses in connection with his current directors who retire or her role as a director consistent with other directors on the Boardare otherwise unable to serve.
(f) Notwithstanding anything contained herein to In furtherance of its recent public disclosures, the contrary, if Company shall include and the Board (or any committee thereof) shall consider (i) recommend the Company’s existing proposal to reduce the percentage of votes required to elect directors from 80% to a proposed contract, transaction or other arrangement between the Investor or any of simple majority in its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest proxy statement for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable)2011 Annual Meeting.
Appears in 1 contract
Board Composition. (a) Subject to the terms of this Section 56, effective as of the Second Closing DateClosing, the Board will appoint a designee of the Investor (the “Investor Designee”) ), reasonably acceptable to the Board, as a director of the Company for a term expiring at the Company’s next 2023 annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law)removal. The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement that Kyungyeol Song shall be a condition precedent to the obligation of each of the Company and the initial Investor to consummate the Second ClosingDesignee. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board Company will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance and Nominating Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board (the “Director Conditions”). Without limiting the foregoing, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established by the Nominating and Company’s Corporate Governance Committee of the BoardGuidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Nominating and Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance and Nominating Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Nasdaq Stock ExchangeMarket.
(c) If an Investor Designee resigns from the BoardBoard (whether pursuant to the Company’s Majority Voting Policy or otherwise), is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 56, within twenty fifteen (2015) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 56.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee Director shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii6(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board Board of directors (or equivalent governance body) Directors of the Investor, Plutus, SK ecoplant E&S Americas, SK Holdings and its Subsidiaries SK E&S, and their respective advisers (such as legal counsel) having a duty of confidentiality to the Investor, Plutus, SK E&S Americas, SK Holdings and SK E&S, as the case may be, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 56.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor Investor, SK Holdings, SK E&S or any of its their respective Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor Investor, SK Holdings, SK E&S (or any of its Affiliatestheir respective Affiliates (disregarding for such purposes the penultimate sentence of the definition of “Affiliate” in Section 1(b) of this Agreement)), on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor Investor, SK Holdings, SK E&S (or any of its Affiliatestheir respective Affiliates (disregarding for such purposes the penultimate sentence of the definition of “Affiliate” in Section 1(b) of this Agreement)), on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board Chair or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
Appears in 1 contract
Sources: Investor Agreement (Plug Power Inc)
Board Composition. (a) Subject During the Director Period, the Designated Holders holding the Purchased Securities (acting together) may nominate one director if the total number of directors of the Company is eleven or less, and two directors if the total number of directors of the Company is twelve or more, to be elected or appointed to the terms of this Section 5Board (any such director, effective as of the Second Closing Date, the Board will appoint a designee of the Investor (the an “Investor Designee”) as a director ); provided, however, that any Investor Designee must meet the Board Qualifications and be reasonably acceptable to the Board at the time of his or her designation. During the Company for a term expiring Director Period, at each meeting of the Company’s next annual meeting Members (as defined in the Articles) at which the appointment of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior directors is to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Periodconsidered, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor such Designated Holders to serve as the Investor Designee) for election appointment or re-electionappointment, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be electeddirector, and use commercially reasonable efforts to cause the Investor Designee to be elected appointed or re-electedappointed, including providing the same level of support as is provided for other nominees. Upon The Company shall use reasonable best efforts to cause each Investor Designee to be appointed to the Board (including voting all unrestricted proxies in favor of the election of such Investor Designee and including recommending approval of such Investor Designee’s appointment to the Board) and shall not take any action designed to diminish the prospects of such Investor Designee(s) of being appointed to the Board. At each subsequent re-appointment of an Investor Designee, such Investor Designee shall be assigned to a class with a full term of three (3) years. During the Director Period, the Board or the Company will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee. The Investor’s rights pursuant to this Section 5 with respect to the Investor Designee shall not be transferable to any Third Party without the Company’s prior written consent.
(b) Subject to any fiduciary obligations under applicable Law and the terms of this Section 5, effective as of the Closing Date, the Board will appoint the Investor Designee as a Class II director of the Company for a term expiring at the Company’s 2025 annual meeting of shareholders or upon such Investor Designee’s earlier death, disability, resignation, vacation of office or removal (including removal by operation of Law).
(c) At the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(bd) As a condition to any appointment or nomination for election appointment to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee (the “NCG Committee”) and those the Board (the “Board Qualifications”), (ii) meet the qualifications mandated by applicable Law, (iiiii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, to the extent required by the Company to be entered into by all directors, (iiiiv) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (ivv) be able to dedicate sufficient time and resources for the diligent performance of the duties reasonably required of a member of the Board (the “Director Conditions”). Without limiting The NCG Committee and the foregoing, each proposed Board shall determine whether the Investor Designee shall be subject to satisfaction of has met the criteria for Board membership established by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined Qualifications in the their reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and the Board discretion, applied in the same manner as the Nominating and Corporate Governance NCG Committee of the Board and the Board would consider any candidate for Board membership; provided, that, the Investor Designee may, if the Investor so desires, be an officer, director or employee of the Investor or its Affiliates. The Board or the Nominating and Corporate Governance NCG Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchangethe Nasdaq Global Select Market.
(ce) If an Investor Designee resigns from the Board, is removedremoved as a director of the Company in accordance with the Articles, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, or otherwise vacates their office as a director in accordance with Article 24.1 (Disqualification of Directors) of the Articles, in each case prior to the expiration of the Director Period, the Investor Designated Holders holding Purchased Securities (acting together) shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(df) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii5(d) and the foregoing, and subject to Section 7.169.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board of directors (or equivalent governance governing body) of SK ecoplant Investor and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or and the SVP, as applicable) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backupsbackups created pursuant to bona fide document retention policies), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5.
(eg) If any Investor Designee is an employee of, or otherwise compensated by, the Investor or any of its Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(fh) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider considers (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
(i) The Company shall add each Investor Designee as a beneficiary to the Company’s directors’ and officers’ liability insurance policy effective from the Closing Date (or such date as such Investor Designee is appointed pursuant to this Section 5) and shall provide all other contractual or insurance director liability or indemnification coverage provided to other members of the Board.
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Board Composition. (a) Subject to the terms of this Section 56, effective as of the Second Closing DateClosing, the Board will appoint a designee of the Investor (the “Investor Designee”) ), reasonably acceptable to the Board, as a director of the Company for a term expiring at the Company’s next 2023 annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law)removal. The Company and the Investor shall agree on the identity of the Investor Designee prior to the Second Closing Date and such agreement that [______] shall be a condition precedent to the obligation of each of the Company and the initial Investor to consummate the Second ClosingDesignee. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board Company will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance and Nominating Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and Section 16 reporting procedures, and (iv) be able to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board (the “Director Conditions”). Without limiting the foregoing, each proposed Investor Designee shall be subject to satisfaction of the criteria for Board membership established by the Nominating and Company’s Corporate Governance Committee of the BoardGuidelines, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance and Nominating Committee of the Board and the Board in the same manner as the Nominating and Corporate Governance and Nominating Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance and Nominating Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Nasdaq Stock ExchangeMarket.
(c) If an Investor Designee resigns from the BoardBoard (whether pursuant to the Company’s Majority Voting Policy or otherwise), is removed, or refuses or is unable to serve or fulfill his or her duties as a director because of death or disability, in each case prior to the expiration of the Director Period, the Investor shall have the right to select a replacement Investor Designee, reasonably acceptable to the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 56, within twenty fifteen (2015) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board to replace the departing Investor Designee to serve the remaining term of the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 56.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to the Investor Designee Director shall be deemed confidential information and will be kept confidential and not disclosed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii6(b)(iii) and the foregoing, and subject to Section 7.16, the Investor Designee shall be permitted to disclose such confidential information to the executive officers and members of the board Board of directors (or equivalent governance body) Directors of the Investor, Plutus, SK ecoplant E&S Americas, SK Holdings and its Subsidiaries SK E&S, and their respective advisers (such as legal counsel) having a duty of confidentiality to the Investor, Plutus, SK E&S Americas, SK Holdings and SK E&S, as the case may be, provided (i) such disclosure is made on a need-to-know basis solely for the purposes of, and to the extent necessary to, monitor and make decisions regarding the Investor’s investment in the Company, and (ii) that the Investor (whether SK ecoplant or the SVP) will be liable for any breach by any of such Persons of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee shall either promptly (x) destroy all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof or (y) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 56.
(e) If any Investor Designee is an employee of, or otherwise compensated by, the Investor Investor, SK Holdings, SK E&S or any of its their respective Affiliates, such Investor Designee shall not be entitled to any compensation from the Company in connection with his or her role as a director or service on the Board or any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Board.
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) shall consider (i) a proposed contract, transaction or other arrangement between the Investor Investor, SK Holdings, SK E&S (or any of its Affiliatestheir respective Affiliates (disregarding for such purposes the penultimate sentence of the definition of “Affiliate” in Section 1(b) of this Agreement)), on the one hand, and the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver of the rights of the Company or any of its Affiliates under any agreement between the Investor Investor, SK Holdings, SK E&S (or any of its Affiliatestheir respective Affiliates (disregarding for such purposes the penultimate sentence of the definition of “Affiliate” in Section 1(b) of this Agreement)), on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board Chair or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable).
Appears in 1 contract
Board Composition. (a) Subject to During the terms term of this Section 5Agreement, effective as Investors holding a majority in interest of the Second Closing Date, Investors’ Shares shall have the Board will appoint a designee of the Investor (the “Investor Designee”) as a director of the Company for a term expiring at the Company’s next annual meeting of stockholders or upon such Investor Designee’s earlier death, disability, resignation or removal (including removal by operation of Law). The Company and the Investor shall agree on the identity of the Investor Designee prior right to the Second Closing Date and such agreement shall be a condition precedent to the obligation of each of the Company and the Investor to consummate the Second Closing. The Company agrees that, during the Director Period, the Board shall nominate the individual serving as such Investor Designee (or any individual subsequently designated by the Investor to serve as the Investor Designee) for election or re-election, as the case may be, as a director at each subsequent meeting of the Company’s stockholders at which directors are to be elected, and use commercially reasonable efforts to cause the Investor Designee to be elected or re-elected, including providing the same level of support as is provided for other nominees. Upon the end of the Director Period, the Investor shall cause the Investor Designee to tender to the Board, as soon as practicable and in any event within five (5) days following the end of the Director Period, his or her resignation from the Board. During the Director Period, the Board will not decrease the size of the Board if such decrease would require the resignation of the Investor Designee.
(b) As a condition to any appointment or nomination for election to the Board, each Investor Designee shall (i) meet the qualifications required of all directors of the Company by the Company’s Nominating and Corporate Governance Committee and those mandated by applicable Law, (ii) agree, in writing, to be bound by the terms and conditions of all of the Company’s policies applicable to its directors, (iii) make such acknowledgements and enter into such agreements as the Company requires of all directors, including, without limitation, with respect to confidentiality, the Company’s code of ethics, ▇designate either ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ policy and Section 16 reporting procedures▇▇▇▇▇▇▇, and (iv) be able or another qualified person reasonably acceptable to dedicate sufficient time and resources for the diligent performance of the duties required of a member of the Board of Directors (the “Director ConditionsBoard”) of the Company (such person so designated being the “Investor Designee”). Without limiting , for nomination to serve on the foregoingBoard.
(b) At least five (5) Business Days prior to the Closing Date, each proposed the Investors shall provide written notice to the Company of its initial selection for the Investor Designee, together with all information set forth in Section 2.6 of the Company’s Bylaws and such other information as the Company shall reasonably request.
(c) On or prior to the Closing Date, the Investor Designee shall be subject to satisfaction of the criteria for Board membership established will have been recommended by the Nominating and Corporate Governance Committee of the Board, including the director qualification criteria thereof, as determined in the reasonable and good faith discretion of the Nominating and Corporate Governance Committee of the Board and to the full Board in the same manner as the Nominating and Corporate Governance Committee of the Board and the Board would consider any candidate for Board membership. The Board or the Nominating and Corporate Governance Committee of the Board will evaluate the Investor Designee for potential roles on the committees of the Board, consistent with evaluations of other directors for such positions and subject to applicable Law and the listing rules and requirements of The New York Stock Exchange.
(c) If an Investor Designee resigns from the Board, is removed, or refuses or is unable to serve or fulfill his or her duties nomination as a director because of death or disability, in each case prior to the expiration of the Director PeriodCompany. The Company shall, at the Investor shall first scheduled Board meeting on or after August 1, 2012 (but in no event later than August 31, 2012), have the right Board take such corporate action as is necessary to select a replacement Investor Designee, reasonably acceptable to elect the Board and subject to compliance with the Director Conditions, and shall provide the Company with the name of and relevant background information for such replacement Investor Designee. Subject to the terms of this Section 5, within twenty (20) days following receipt of such information and compliance with the Director Conditions, the Board will appoint such replacement Investor Designee to the Board, subject to applicable law. So long as the Minimum Voting Power Event shall not have occurred, the Company shall maintain the size of the Board so as to permit the appointment or election of the Investor Designee, subject to applicable law. The Company shall, beginning with the 2013 Annual Meeting of Stockholders and continuing during the term of this Agreement so long as the Minimum Voting Power Event has not occurred, subject to applicable law, include in the slate of nominees recommended by the Board to replace stockholders, and included in the departing related Company proxy statement, for election to the Board at any annual meeting of stockholders of the Company, one Investor Designee. At the written request of Investors holding a majority in interest of the Investors’ Shares, at any time between annual meetings when the director seat to which the Investor Designee was elected at the last annual meeting is vacant, the Company shall cause another Investor Designee to serve be appointed, subject to applicable law, to fill such vacant seat. From the remaining term of Closing Date until the departing Investor Designee, and the replacement Investor Designee shall be considered an Investor Designee for all purposes of this Section 5.
(d) All confidential or proprietary information and data relating to the Company and its Affiliates provided by the Company to date that the Investor Designee shall be deemed confidential information and will be kept confidential and not disclosed has been appointed to any Person outside of the Company. Notwithstanding the confidentiality obligations set forth in Section 5(b)(iii) and the foregoing, and subject to Section 7.16Board, the Investor Designee shall be permitted entitled to disclose such confidential information attend any meetings of the Board as an observer and to receive copies of all notices, minutes, consents and other materials that the Company provides to the executive officers and members Board.
(d) At any meeting of stockholders of the board Company beginning with the 2013 Annual Meeting of directors Stockholders (however noticed or equivalent governance body) of SK ecoplant and its Subsidiaries and their advisers (such as legal counsel) having a duty of confidentiality to the Investor, provided (i) such disclosure is made on a need-to-know basis solely for the purposes ofcalled), and in any action by written consent of holders of Capital Stock to the extent necessary to, monitor and make decisions regarding the Investor’s investment in elect directors of the Company, and (ii) that at which an Investor Designee is proposed for election to the Investor (whether SK ecoplant Board, each ▇▇▇▇▇▇ Stockholder shall vote all ▇▇▇▇▇▇ Stockholder Shares then outstanding, or the SVP) will cause all such ▇▇▇▇▇▇ Stockholder Shares to be liable for any breach by any of such Persons voted, in favor of the confidentiality obligations applicable to the Investor Designee. Upon the resignation or removal election of the Investor Designee from the Board and written request (including via email) from the Company, such Investor Designee (but only one Investor Designee) to the Board. In addition, each ▇▇▇▇▇▇ Stockholder agrees to vote all ▇▇▇▇▇▇ Stockholder Shares, or cause all such ▇▇▇▇▇▇ Stockholder Shares to be voted, from time to time and at all times, in whatever manner as shall either promptly (x) destroy all confidential information be necessary to ensure that upon the written request of the Company that he or she received Investors holding a majority in his or her capacity interest of the Investors’ Shares, any Investor Designee then serving as a director in his or her possession or control and any copies thereof or on the Board (ythe “Investor Director”) return to the Company all confidential information of the Company that he or she received in his or her capacity as a director in his or her possession or control and any copies thereof (but the Investor Designee need not purge electronic archives and backups), and, in either case, confirm in writing (which may shall be via email) to the Company that all such material has been destroyed or returned, as applicable, in compliance with this Section 5removed.
(e) If Except as prohibited by applicable law or stock exchange rules, any Investor Designee is an employee ofDirector shall be appointed to sit on at least two committees of the Board, or otherwise compensated by, to be selected by the Investor or any of its AffiliatesDirector from time to time (but in no event more frequently than annually, such Investor Designee shall not be entitled to any compensation from unless the Company in connection with his or her role as a director or service on materially changes the Board or duties of any committee. The Investor Designee will be entitled to reimbursement from the Company of out of pocket expenses in connection with his or her role as a director consistent with other directors on the Boardsuch committees more frequently).
(f) Notwithstanding anything contained herein to the contrary, if the Board (or any committee thereof) The provisions in this Section 2.2 shall consider (i) a proposed contract, transaction or other arrangement between the Investor or any of its Affiliates, on the one handnot apply, and shall terminate automatically and be of no further force or effect, from and after the Company or any of its Affiliates, on the other hand, (ii) the enforcement or waiver occurrence of the rights of the Company or any of its Affiliates under any agreement between the Investor or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand, or (iii) a matter which the Board determines in good faith presents an actual or potential conflict of interest for the Investor Designee, then the Investor Designee will, if directed by the chairperson of the Board or the remaining directors, be excluded from participation in such Board or committee meeting (or portion thereof, as applicable) at which such matters are to be discussed, and the Investor Designee will not be entitled to receive copies of the materials or other documents relating to such matter or meeting (or portion thereof, as applicable)Minimum Voting Power Event.
Appears in 1 contract
Sources: Stockholders' Agreement (Thomas Properties Group Inc)