Board Representation. (a) Following the closing of the Initial Investment, the Purchaser shall be entitled to designate one Qualified Candidate to the Nomination and Governance Committee (the “NGC”) of the Board of Directors of the Company (the “Board”) for appointment to the Board (any such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board. (b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board). (c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members. (d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board. (e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal. (f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company: (i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards; (ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and (iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board: (1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and (2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and (iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.
Appears in 2 contracts
Sources: Investment Agreement (Brookfield Asset Management Inc.), Investment Agreement (American Equity Investment Life Holding Co)
Board Representation. (a) Following The Board of Directors shall, prior to the closing Closing, elect a total of four nominees designated in writing by the Investor (such persons, or replacements designated by the Investor, the "Board Nominees"), to the Board of Directors, to be allocated to Class I, Class II or Class III as specified by the Investor. Commencing with the annual meeting of stockholders of the Initial InvestmentCompany the record date for which next follows the Closing Date, and at each annual meeting of stockholders of the Company thereafter, the Purchaser Investor shall be entitled to designate one Qualified Candidate present to the Nomination Board of Directors or the nominating committee thereof a number of nominees for election to the class of directors up for election to the Board of Directors at such annual meeting equal to the number of Board Nominees in such class immediately prior to such election and Governance Committee (the “NGC”) of Company shall use its best efforts to cause the election to the Board of Directors of such Board Nominees. If the Company (Board of Directors shall cease to be a classified board, the “Board”) for appointment Investor shall be entitled to present to the Board (any such designee, of Directors or the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation nominating committee thereof two nominees for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board of Directors at each annual meeting of stockholders of the Company’s annual meeting, and (ii) use reasonable best efforts to have . In the Purchaser Director elected as a director event of the Company and death, disability, resignation or removal of a Board Nominee, the Investor shall designate a replacement for such director, which replacement the Company shall solicit proxies for each such person cause to be elected to the same extent as it does for any Board of its other nominees to the BoardDirectors.
(b) The Purchaser Company shall have cause each Board Nominee designated for election to the power Board of Directors pursuant to designate Section 5.02(a) to be included in the Purchaser Director’s replacement upon slate of nominees recommended by the deathBoard of Directors to the stockholders of the Company for election as directors at the relevant annual meeting of the stockholders, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement and shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable use its best efforts to have cause the election of each such person elected as director Board Nominee, including soliciting proxies in favor of the Company and the Company soliciting proxies for election of such person to the same extent as it does for any of its other nominees to the Board)person.
(c) The Purchaser Director Notwithstanding the foregoing provisions of this Section 5.02, the Investor shall not be entitled to receive from designate Board Nominees for election to the Company Board of Directors in the same indemnification event that (i) less than $130,000,000 in connection with his or her role as a director as the other members Stated Value of the BoardSeries A Preferred Stock is outstanding or (ii) the Investor and its Affiliates do not Beneficially Own, and in the Purchaser Director aggregate, more than 50% of the then outstanding shares of Series A Preferred Stock. In the event that the Investor shall not be entitled to reimbursement designate Board Nominees for expenses incurred election to the same extent Board of Directors, the Board Nominees shall resign from the Board of Directors no later than the thirtieth day after the day on which the Investor becomes aware that the aggregate Beneficial Ownership of it and its Affiliates is reduced below the threshold ownership level of Original Number of Series A Shares specified in this Section 5.02(c). If a Board Nominee does not resign on or prior to such thirtieth day as required pursuant to the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all noticesimmediately preceding sentence, minutes, consents and other materials provided to all other members a majority of the Board concurrently as of Directors (excluding any Board Nominees) shall have the right to remove such materials are provided to Board Nominee from the other membersBoard of Directors.
(d) If the Purchaser no longer beneficially owns an aggregate amount Board of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described Directors shall determine in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) good faith in the exercise of any of the Company’s rights or enforcement its fiduciary duties, that nomination of any of person designated by the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed Investor for election to the directors Board of Directors would be contrary to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies best interests of the Company, then the Company shall promptly notify the Investor of such determination (either in each caseperson, if such determination shall be made at a Board of Directors meeting at which a Board Nominee is present or by telephone (promptly confirmed in writing), if such determination shall be made at a Board of Directors meeting at which a Board Nominee is not present) and thereafter the Investor shall have a period of no less than five Business Days to designate a new person for nomination for election to the extent applicable to all other non-executive directors Board of Directors as a Board Nominee. The Board of Directors has approved the executives of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as Investor set forth in this Agreementon Schedule 5.02(d) as Board Nominees for all purposes hereof as the date hereof.
Appears in 2 contracts
Sources: Restructuring Agreement (Memc Electronic Materials Inc), Restructuring Agreement (Memc Electronic Materials Inc)
Board Representation. (a) Following Effective upon the closing of the Initial InvestmentIPO and prior to the date of the Business Combination Closing, the Purchaser shall be entitled have the right to designate one Qualified Candidate to the Nomination and Governance Committee individual (the “NGCPurchaser Designee”) to be, at Purchaser’s election, either (a) a non-voting observer (a “Board Observer”) of the Board of Directors or (b) elected as a member of the Company (Board. Any Board Observer shall be entitled to attend meetings of the “Board”) for appointment , and to receive all information provided to the members of the Board during the period in which such person is a Board Observer; provided, that the Board Observer shall not be entitled to vote on any matter submitted to the Board (or any of its committees nor to offer any motions or resolutions to the Board or such designee, committees. In the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment event of the Purchaser Director and Designee’s death, disability or resignation from the Board prior to the Business Combination Closing, the Purchaser shall appoint such have the right to designate a replacement Purchaser Director Designee. In the event the Purchaser designates a Purchaser Designee to fill a vacancy on be elected to the Board pursuant to clause (it being understood that if no vacancy then existsb) above, the Board shall create such a vacancy by taking such actions as are necessary each Sponsor hereby agrees to increase the size vote all of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions shares in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing election of the Purchaser Director to the Board at the Company’s annual meetingDesignee, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director Designee shall be entitled to receive such contractual indemnification as is provided to the other directors of the Company. The Company may exclude any Board Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company the same indemnification in connection with his and such counsel; or her role as (ii) such portion of a meeting is an executive session limited solely to independent director as the other members of the Board, independent auditors and/or legal counsel, as the Board may designate, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to Board Observer (assuming the same extent as the other members Board Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded. The Company shall notify In the event the Purchaser Director of all regular and special meetings of the Board. The Company designates a Board Observer pursuant to clause (a) above, Purchaser’s Board Observer shall provide the Purchaser Director with copies of all noticeshave no duties, minutesfiduciary or otherwise, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) Company. If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal does not designate a Purchaser Designee prior to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request date of the BoardBusiness Combination Closing, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s its rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director 9 shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreementterminate.
Appears in 2 contracts
Sources: Forward Purchase Agreement, Forward Purchase Agreement (Mosaic Acquisition Corp.)
Board Representation. (a) Following the closing Upon completion of the First Closing and once Buyer provides a written confirmation to Issuer to increase the Initial Investment, the Purchaser shall be entitled to designate one Qualified Candidate Buyer Percentage to the Nomination and Governance Committee (the “NGC”) of the Board of Directors of the Company (the “Board”) for appointment to the Board (any such designeeStep Two Buyer Percentage, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC Issuer shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one (1) director). Thereafter, neither the NGC nor so that upon such increase, (i) the Board shall withhold its recommendation for the re-election consist of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock ten (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x10) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meetingdirectors, and (ii) use reasonable best efforts the Board shall elect as director to have fill the Purchaser Director elected vacancy a person designated by Buyer who shall be reasonably acceptable to Issuer and the Board. Such person shall, unless removed by Buyer or otherwise for cause, serve as a duly appointed director of the Company Issuer. Each subsequent designee of Buyer shall, if reasonably acceptable to Issuer and the Company shall solicit proxies Board and subject to this Section 6.1, be nominated by the Board for each such person election by the stockholders to the same extent Board, and if so elected, shall serve as it does a duly elected director of Issuer. Subject to Section 6.1(e), so long as Buyer from time to time maintains the Initial Buyer Percentage, Issuer shall continue to nominate and recommend for any of its other nominees election one (1) person designated by Buyer who is reasonably acceptable to Issuer and the Board to serve as director on the Board.
(b) The Purchaser Promptly after completion of the Third Closing, Issuer shall have increase the power to designate size of the Purchaser Director’s replacement Board by one (1) director so that upon such increase, (i) the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required consist of eleven (11) directors and (ii) the Board shall elect as director to fill the vacancy resulting therefrom with such a person (including using all reasonable best efforts designated by Buyer who shall be reasonably acceptable to have such Issuer and the Board. Such person elected shall, unless removed by Buyer or otherwise for cause, serve as a duly appointed director of the Company Issuer. Each subsequent designee of Buyer shall, if reasonably acceptable to Issuer and the Company soliciting proxies Board and subject to this Section 6.1, be nominated by the Board for such person to election by the same extent as it does for any of its other nominees stockholders to the Board, and if so elected, shall serve as a duly elected director of Issuer. Subject to Section 6.1(e), so long as Buyer from time to time maintains the Step Three Buyer Percentage, Issuer shall continue to nominate and recommend for election two (2) persons designated by Buyer who are reasonably acceptable to Issuer and the Board to serve as directors on the Board. For the avoidance of doubt, this Section 6.1(b) shall not apply in the event that Buyer first acquires the Step Three Buyer Percentage after the expiry of the Standstill Period.
(c) The Purchaser Director shall be entitled At least thirty (30) days prior to receive from the Company the same indemnification in connection its distribution of its proxy statement or information statement with his or her role as respect to each meeting of stockholders at which a term of a director as designated by Buyer expires, Issuer shall notify Buyer. On or prior to the other members close of business on the Boardlater of (i) the fifteenth (15th) day following its receipt of Issuer’s notice and (ii) the thirtieth (30th) day prior to Issuer’s anticipated distribution of such proxy statement or information statement, Buyer shall notify Issuer information regarding its nominee required by the Exchange Act and the Purchaser Director shall rules and regulations promulgated by the SEC thereunder to be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as set forth in such materials are provided to the other membersproxy statement or information statement.
(d) If Promptly after completion of the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away ThresholdSecond Closing, the Purchaser will have no further rights under this Section 7.1 andboard of directors of Buyer shall elect as director one (1) person designated by Issuer who shall (i) be reasonably acceptable to Buyer and its board of directors (the “Buyer’s Board”), at and (ii) has been approved by the written request of CBRC, the CSRC and the Shanghai Stock Exchange to serve as director on the Buyer’s Board (an “Approved Issuer Designee”). The Approved Issuer Designee shall be nominated by the Buyer’s Board for election by the stockholders to the Buyer’s Board, and if so elected, shall serve as a duly elected director of Buyer. So long as Buyer from time to time maintains the irrevocable resignation letter described in Section 7.1(f)(ivStep Two Percentage, Buyer shall continue to nominate and recommend for election one (1) shall become operative and Approved Issuer Designee to serve as director on the Purchaser Director shall be deemed to have resigned from the Buyer’s Board.
(e) The Purchaser Director For purposes of Sections 6.1(a) and (b), Buyer shall be subject deemed to customary confidentiality and information use restrictions applicable have maintained the Initial Buyer Percentage or the Step Three Buyer Percentage, as applicable, if from time to members time the Buyer Percentage is less than the Initial Buyer Percentage or the Step Three Buyer Percentage, as the case may be, by less than 1%. Without limiting the generality of the Board. The Purchaser agrees that foregoing, in no event shall Buyer be deemed to have failed to maintain the Board Initial Buyer Percentage or the Step Three Buyer Percentage, as the case may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action be, if, with respect to (i) any Dilutive Event that decreases the exercise of any of Buyer Percentage to below the Company’s rights or enforcement of any of the obligations under this Agreement Initial Buyer Percentage or the Reinsurance Agreement or (ii) any transaction proposed byStep Three Buyer Percentage, or with, the Purchaser or Buyer has provided a written notice to Issuer of its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed desire to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings acquire Additional Shares in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this AgreementSection 2.4(b).
Appears in 2 contracts
Sources: Investor's Rights and Standstill Agreement (Ucbh Holdings Inc), Investor's Rights and Standstill Agreement (China Minsheng Banking Corp., Ltd.)
Board Representation. (a) Following the closing Upon consummation of the Initial Investmentpurchase and sale of the Series B Preferred Stock and the Warrant pursuant to Section 2.1 hereof, the Purchaser shall be entitled to designate one Qualified Candidate to the Nomination and Governance Committee (the “NGC”) of the Board of Directors of the Company (the “Board”) for appointment to the Board of Directors six (any such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment 6) out of the Purchaser Director and ten (10) members of the Board of Directors, which designees (the "Purchaser Designees") shall appoint such Purchaser Director to fill a vacancy on be distributed evenly among the three classes of members of the Board (it being understood that if no vacancy then existsof Directors. Prior to the Closing, the Board Company shall create such a vacancy by taking such actions as are take all necessary corporate action to increase the size of its Board of Directors to ten (10) members and obtain all necessary resignations in consultation with Purchaser for existing directors to enable all six Purchaser Designees to be appointed to the Board by one director). Thereafterof Directors, neither the NGC nor and Company shall cause the Board of Directors to fill the vacancies created thereby by electing the Purchaser Designees effective as of the Closing. If a vacancy shall withhold its recommendation exist on the Board of Directors as a result of the resignation, removal, death or failure to stand for the re-election of such a Purchaser Director Designee, Purchaser shall be entitled to designate a successor who shall be appointed to the BoardBoard of Directors by the remaining Directors. Following If a vacancy shall exist on the expiration Board of Directors as a result of the Purchaser Director’s initial termresignation, so long removal, death or failure to stand for re-election of a Continuing Director (as Purchaser’s aggregate beneficial ownership such term is defined in Article IX of the Common Stock is equal to or greater than 9.0% Company's Restated Certificate of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”Incorporation), the remaining Continuing Directors shall be entitled to designate a successor who shall be appointed to the Board of Directors by the remaining directors pursuant to the recommendation of the remaining Continuing Directors. If, prior to Closing, the number of directors of Company will be required to is increased by virtue of any right of security holders (i) include the Purchaser Director in the Company’s slate event dividends or other payments provided for under the terms of director nominees and recommend to its shareholders that such securities are not made, or otherwise), then such increase shall include a sufficient number of directors of the Company’s shareholders , who shall be designated by Purchaser and appointed to the Board of Directors by the Continuing Directors so that Purchaser's Designees shall constitute a majority of such increased Board of Directors. Purchaser agrees that it shall vote all Company securities beneficially owned by it that are entitled to vote in the election of directors in favor of the electing Continuing Directors' designees for election or re-election as Continuing Directors until the Purchaser Director to first election of directors following the Board at payment of the Company’s annual meetingdistribution contemplated by Section 6.14 of this Agreement, and that it will require any transferee of any such Company securities (ii) use reasonable best efforts other than transferees that acquire such securities in a registered public offering or in a transaction pursuant to have the Purchaser Director elected as a director Rule 144 of the Company and Securities Act) to agree to vote such securities in the Company manner provided herein. For so long as Purchaser is obligated to vote for the Continuing Directors' designees, no Purchaser Designee shall solicit proxies be deemed to be a Continuing Director for each such person to the same extent as it does for any purposes of its other nominees to the BoardArticle IX of Company's Restated Certificate of Incorporation.
(b) The Prior to the Closing, Purchaser shall have the power timely furnish to designate Company all information concerning the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is Designees required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives included in a proxy the information statement or other filings referred to in accordance with Requirements of Law or any stock exchange rules or listing standards;
(iiSection 7.2(d) all so that such information reasonably requested by the Company may be included in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional that information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreementstatement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Leucadia National Corp), Securities Purchase Agreement (Finova Group Inc)
Board Representation. (a) Following the closing of the Initial Investment, the Purchaser The Company shall be entitled to designate one Qualified Candidate to the Nomination and Governance Committee (the “NGC”) of the Board of Directors of the Company (the “Board”) for appointment to the Board (any take all requisite action such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy that on the Board (it being understood that if no vacancy then existsdate hereof, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board shall be set at nine (9) members and five (5) individuals designated by the WP Purchasers (each director designated by the WP Purchasers under this Agreement, a “WP Purchaser Designee”, and collectively, the “WP Purchaser Designees”) as Board nominees shall be appointed to the Board, and on the date hereof, the Resigning Directors shall resign; provided, however, the WP Purchasers shall be permitted, in their discretion, to defer appointment of one director). Thereafteror more of the WP Purchaser Designees to one or more subsequent dates.
(b) (i) From and after the date hereof, neither the NGC nor Company shall cause five (5) WP Purchaser Designees to be nominated by the Company to serve on the Board and the total number of members of the Board shall withhold its recommendation for the re-election of such Purchaser Director be nine (9) or fewer to the Board. Following the expiration extent certain of the WP Purchaser Director’s initial termDesignees have not been appointed to the Board (as permitted above). Any WP Purchaser Designees shall be appointed to the Board on the date hereof or to the extent designated following the First Closing Date, shall be appointed to the Board promptly following notice from the WP Purchasers and in any event, within one (1) Business Day. From and after the date hereof, the Company shall not change the size of the Board without the prior written consent of the WP Purchasers; provided that, unless waived by the WP Purchasers, in the event the size of the Board is changed, the WP Purchasers shall have the right to designate that number of WP Purchaser Designees to be nominated or appointed to the Board to maintain proportional Board representation not less that set forth in the previous sentence. For so long as Purchaser’s aggregate beneficial ownership such membership does not conflict with any applicable law or regulation or listing requirement of any Approved Market on which the Common Stock is equal listed for trading (as determined in good faith by the Board), the WP Purchaser Designees shall be entitled to serve as a member of, or greater than 9.0observer to, at the WP Purchaser Designee’s election, each of the committees of the Board, except for any committee formed to consider a transaction between the Company and a member of the WP Purchaser Group. The Company acknowledges that the WP Purchaser Designees intend to hold positions on the Board committees and that following the date hereof the Company will take all actions necessary to arrange for the prompt appointment of the WP Purchaser Designees to any such committees (subject to the limitations in the immediately preceding sentence). The Company shall consult with the WP Purchasers, and the WP Purchasers shall have the right to participate (including in any interviews), in the selection of other directors that will serve on the Board. The WP Purchasers’ rights set forth in this Section 5.16(b) shall terminate on the first date on which the WP Purchasers collectively do not own at least 75% of the shares of Series A Preferred actually issued to, and outstanding Common Stock purchased by, the WP Purchasers hereunder (without taking into account including Conversion Shares issued on conversion thereof and any reductions in the Purchaser’s ownership stake resulting from (x) new issuances other securities of Common Stock or (y) repurchases by the Company of Common Stock and or any successor thereto into which such Shares are converted or exchanged).
(c) Solely with respect to those WP Purchaser Designees that the requirements of Section 7.4(b)WP Purchasers are entitled to designate pursuant to Sections 5.16(a) and/or 5.16(b) (and solely as long as the “Fall-away Threshold”), the Company will be required WP Purchasers remain entitled to so designate such WP Purchaser Designees):
(i) include the Purchaser Director in the Company’s slate of director nominees and recommend to The Company shall use its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the such WP Purchaser Director Designees elected as a director directors of the Company and Company, including, without limitation, including such WP Purchaser Designees in the Company shall solicit Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for each such person WP Purchaser Designees to the same extent as it does for any of its other nominees to the Board, and including the recommendation of the Board in favor of election of the WP Purchaser Designees. In the event a WP Purchaser Designee is not elected at a stockholders meeting at which such designee is up for election, the Company shall cause such WP Purchase Designee to be appointed to the Board.
(bii) The WP Purchasers may remove any WP Purchaser shall have Designee at any time, with or without cause. Any vacancy in the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office position of such director; provided that a WP Purchaser Designee shall only be filled with another WP Purchaser Designee. Any vacancy created by any such removal of a WP Purchaser Designee or an election of the WP Purchasers to defer appointing one or more WP Purchaser Designees shall also only be filled with another WP Purchaser Designee. The Company shall not take any action to remove any WP Purchaser Designee without the consent of the WP Purchasers or fill a vacancy reserved for a WP Purchaser Designee. Any replacement WP Purchaser Designees shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person appointed to the same extent as it does for Board promptly following notice from the WP Purchasers and in any of its other nominees to the Board)event, within two (2) Business Days.
(ciii) The Each WP Purchaser Director Designee shall be entitled to receive from the Company given notice of (in the same indemnification in connection with his or her role as a director as the manner that notice is given to other members of the Board) all meetings (whether in person, telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such WP Purchaser Designee serves. Each WP Purchaser Designee shall receive a copy of all notices, agendas and other materials distributed to the Board, whether provided to directors in advance or during or after any meeting, regardless of whether such WP Purchaser Designee will be in attendance at the meeting.
(d) In addition to any other indemnification rights the WP Purchaser Designees have pursuant to this Agreement, the Certificate of Incorporation and the Bylaws, each such WP Purchaser Designee that serves on the Board shall have the right to enter into, and the Company agrees to enter into, an Indemnification Agreement and a side letter contemplated by Section 6.1(n). The Company shall maintain director and officer insurance covering the WP Purchaser Director shall be entitled to reimbursement for expenses incurred to Designees on the same extent terms and with the same amount of coverage as the is provided to other members of the Board. The Company shall notify reimburse the reasonable expenses incurred by the WP Purchaser Director of Designees in connection with attending (whether in person or telephonically) all regular and special meetings of the Board. The Board or committees thereof or other Company shall provide related meetings to the Purchaser Director with copies of all notices, minutes, consents and other materials provided to same extent as all other members of the Board concurrently as are reimbursed for such materials are provided expenses (or, in case any such expense reimbursement policy shall apply only to non-employee directors, to the same extent as all other members.
(d) If non-employee directors). The WP Purchaser Designees shall be entitled to the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of same compensation for service on the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative including, without limitation, cash fees, stock options, restricted stock and the Purchaser Director shall be deemed other equity awards, as is provided to have resigned from the Boardother non-employee directors.
(e) The Purchaser Director Company and the Purchasers shall take or cause to be subject taken all lawful action necessary to customary confidentiality ensure at all times as of and information use restrictions applicable to members following the Closing Date that the Organizational Documents of the Board. The Purchaser agrees that Company are not inconsistent with the Board may recuse the Purchaser Director by majority vote provisions of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement and the Transaction Documents or the Reinsurance Agreement transactions contemplated hereby or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusalthereby.
(f) As a condition Solely during the period from the date hereof until the date that is 185 days after the date hereof, the WP Purchasers shall not take any action to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election remove ▇▇▇▇▇▇ ▇▇▇▇▇ as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members member of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.
Appears in 1 contract
Board Representation. (a) Following the closing of the Initial Investment, the Purchaser The Company shall be entitled to designate one Qualified Candidate to the Nomination and Governance Committee (the “NGC”) of the Board of Directors of the Company (the “Board”) for appointment to the Board (any take all requisite action such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy that on the Board (it being understood that if no vacancy then existsClosing Date hereof, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board shall be set at seven (7) members, and two (2) individuals designated by Accretive (each director designated by Accretive under this Agreement, an “Accretive Designee”, and collectively, the “Accretive Designees”) as Board nominees shall be appointed to the Board; provided, however, Accretive shall be permitted, in its discretion, to defer appointment of one directoror more of the Accretive Designees to one or more subsequent dates and in such case one Board vacancy shall be left to be filled by an Accretive Designee; and provided, further, that ▇▇▇▇▇▇ Tick shall submit his irrevocable resignation from the Board to the President or Secretary of the Company, which resignation shall specify that it shall take effect only at the sole discretion of Accretive as to timing to appoint such second Accretive Designee, and shall not be subject to acceptance by the Board or the Company (provided that the foregoing shall not impair Mr. Tick’s ability to resign at any time without acceptance or consent from Accretive, the Company or any other party). ThereafterThe rights of Accretive under this Article 7 shall continue in effect as long as either: (i) any obligations under the Notes remain due and outstanding or (ii) Accretive is the beneficial owner (as defined by the regulations of the SEC) of at least five percent (5%) of the common stock of the Company.
(b) From and after the date hereof, neither the NGC nor Company shall cause two (2) Accretive Designees to be nominated by the Company to serve on the Board and the total number of members of the Board shall withhold its recommendation for the re-election of such Purchaser Director be seven (7) or fewer to the Board. Following the expiration extent certain of the Purchaser Director’s initial termAccretive Designees have not been appointed to the Board (as permitted above). Any Accretive Designees shall be appointed to the Board on the Closing Date or to the extent designated following the Closing Date, so shall be appointed to the Board promptly following notice from Accretive and in any event, within one (1) Business Day.
(c) Solely with respect to those Accretive Designees that Accretive is entitled to designate pursuant to Article 7 (and solely as long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal Accretive remains entitled to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to so designate such Accretive Designees):
(i) include the Purchaser Director in the Company’s slate of director nominees and recommend to The Company shall use its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director such Accretive Designees elected as a director directors of the Company and Company, including, without limitation, including such Accretive Designees in the Company shall solicit Company’s proxy statement for the election of directors as part of “management’s slate”, soliciting proxies for each such person Accretive Designees to the same extent as it does for any of its other nominees to the Board, and including the recommendation of the Board in favor of election of the Accretive Designees. In the event an Accretive Designee is not elected at a stockholders meeting at which such designee is up for election, the Company shall cause such Accretive Designee to be appointed to the Board.
(bii) Any vacancy in the position of an Accretive Designee shall only be filled with another Accretive Designee. Any vacancy created by any removal of an Accretive Designee or an election of Accretive to defer appointing one or more Accretive Designees shall also only be filled with another Accretive Designee. The Purchaser Company shall have not take any action to remove any Accretive Designee or fill a vacancy reserved for an Accretive Designee without the power to designate the Purchaser Director’s consent of Accretive. Any replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement Accretive Designees shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person appointed to the same extent as it does for Board promptly following notice from Accretive and in any of its other nominees to the Board)event, within two (2) Business Days.
(ciii) The Purchaser Director Each Accretive Designee shall be entitled to receive from the Company given notice of (in the same indemnification in connection with his or her role as a director as the manner that notice is given to other members of the Board) all meetings (whether in person, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which such Accretive Designee serves. The Company Each Accretive Designee shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies receive a copy of all notices, minutes, consents agendas and other materials distributed to the Board, whether provided to all other members directors in advance or during or after any meeting, regardless of whether such Accretive Designee will be in attendance at the Board concurrently as such materials are provided to the other membersmeeting.
(d) If Except as specified in Section 5.2(c) to the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Thresholdcontrary, the Purchaser will have no further rights under provisions of this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) Article 7 shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed apply mutatis mutandis to the right of Accretive to appoint subsidiary directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this AgreementSection 5.2(c) hereof.
Appears in 1 contract
Sources: Note and Common Stock Purchase Agreement (Nutrastar International Inc.)
Board Representation. (a) Following the closing of the Initial Investment, The Company and the Purchaser shall take all reasonable action within their respective powers to cause one person named by the Purchaser to be entitled to designate one Qualified Candidate to the Nomination and Governance Committee (the “NGC”) appointed a member of the Board of Directors of the Company (the “Board”"PURCHASER DIRECTOR") to serve for appointment a period commencing on the date that the Company obtains directors' and officers' liability insurance pursuant to Section 8.3 (or such date after the Closing Date as the Purchaser waives the requirement of such directors' and officers' liability insurance) and ending on the third anniversary of the Closing Date, PROVIDED, that the Purchaser's right to appoint a member to the Board (any of Directors of the Company shall be extended to the Mandatory Redemption Date if the Company does not complete a Qualifying Public Offering. At such designee, the “Purchaser Director”). Upon such designation, so long time as the Purchaser Director is a Qualified Candidateand its affiliates no longer own any Shares, the NGC Purchaser shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing cause the Purchaser Director to the Board at resign from the Company’s annual meeting, and (ii) use 's Board of Directors. The reasonable best efforts to have the Purchaser Director elected as a director actions required of the Company and the Company Purchaser in this Section 8.2 shall solicit proxies for each such person include, without limitation, to the same extent within their respective powers, the nomination of the Purchaser Director, the execution of written consents, the calling of special meetings, the removal of directors, the filling of vacancies on the Board of Directors and the waiving of notice. During the period from the Closing Date until the term on the Board of Directors of the individual named by the Purchaser as it does for any of its other nominees the Purchaser Director begins, such individual shall receive all notices and materials sent to the BoardBoard of Directors of the Company, shall be entitled to attend all meetings of the Board of Directors as an observer, and shall be entitled to receive compensation and benefits pursuant to Section 8.2(b) as though he were a member of the Board of Directors.
(b) The Purchaser Director shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to receive the same extent compensation and benefits as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested those paid by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreementemployee directors.
Appears in 1 contract
Sources: Investment Agreement (Zebu)
Board Representation. (a) Following On or prior to the closing Closing Date, the Board of Directors of the Initial InvestmentCompany and the Audit Committee of the Board of Directors shall each be expanded by one position, and Doug▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇ll be appointed to fill the vacancies created by such expansion. Thereafter, for so long as Purchaser and the Permitted Transferees own, in the aggregate, at least the Minimum Interest, Purchaser shall be entitled to designate one Qualified Candidate director on the management slate of nominees to the Nomination and Governance Committee Company's Board of Directors (the “NGC”"Purchaser Designee"). In the event that the number of directors comprising the Company's Board of Directors (in addition to the Purchaser Designee) shall be six or more, the Board of Directors shall be expanded by an additional position, and Purchaser shall be entitled to designate an additional director on such management slate of nominees (the "Additional Designee"). At least 90 days prior to each annual meeting of stockholders at which a Purchaser Designee (and Additional Designee, if applicable) will stand for election, Purchaser shall provide written notice to the Company indicating the Purchaser Designee (and Additional Designee, if applicable) to be nominated by Purchaser at such annual meeting, and such notice shall set forth as to each Person proposed for nomination all information relating to such Persons that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act (including such Person's written consent to being named in the related proxy statement as a nominee and to serving as a director if elected).
(b) Subject to applicable law, the Company shall use its best efforts at all times to take such action as is necessary to ensure that the nominating committee of the Board of Directors (or the full Board if there is no nominating committee) of the Company shall nominate and recommend to the stockholders of the Company that the stockholders elect the Purchaser Designee (the “Board”and Additional Designee, if applicable) for appointment to the Board (of Directors. As a condition precedent to the inclusion of any such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment Designee on any slate of the Purchaser Director and nominees to be recommended to stockholders by the Board shall appoint such Purchaser Director of Directors pursuant to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”4.10(a), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members nominating committee of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement full Board if there is no nominating committee) may review the information provided pursuant to Section 4.10(a) to evaluate in good faith such Purchaser Designee's (and such Additional Designee's) character and fitness to serve as a director. If the nominating committee (or the full Board if there is no nominating committee) determines in good faith that any such Purchaser Designee (iior Additional Designee) any transaction proposed by, lacks the character or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed fitness to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election serve as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors based on applicable legal and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.reasonable
Appears in 1 contract
Sources: Stock Purchase Agreement (American Bank Note Holographics Inc)
Board Representation. (a) Following So long as the closing "Purchaser Group" (as defined below) beneficially owns at least 10% of the Initial Investmentissued and outstanding shares of Common Stock, the Purchaser shall be entitled have the right to designate one Qualified Candidate individual to the Nomination and Governance Committee (the “NGC”) of serve on the Board of Directors of the Company (Company; provided, however, that if the “Board”) for appointment Purchaser Group ceases at any time to beneficially own an aggregate of at least 10% of the Board (any such designeeissued and outstanding shares of Common Stock, the “Purchaser Director”). Upon such designation, so long as rights set forth in this Section 6.2 shall immediately terminate and shall not re-vest if at any time thereafter the Purchaser Director is Group beneficially owns an aggregate of 10% or more of the issued and outstanding shares of Common Stock. After the Closing, promptly upon receipt of a Qualified Candidaterequest by the Purchaser, the NGC Company shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are take all action necessary to increase the size of the Board of Directors by one director)director and to appoint the person designated by the Purchaser to fill the vacancy caused by such increase in the size of the Board of Directors. The term of such designee shall continue until the next succeeding annual meeting of shareholders of the Company and until his successor is duly elected and qualified. Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership the Purchaser continues to have the right to designate a member of the Common Stock Company's Board of Directors pursuant to this Section 5.1, the Company shall use its best efforts to cause the designee or such other person designated by the Purchaser from time to time (who shall be reasonably satisfactory to the Company; provided, however, that any officer of the Purchaser shall be deemed to be satisfactory to the Company) (the "Purchaser Representative") to be elected to the Board of Directors of the Company at any succeeding annual meeting of the shareholders of the Company or, if the election of directors occurs other than pursuant to a meeting of shareholders, to otherwise effect the election of the Purchaser Representative as a director.
(b) In the event that the Purchaser Representative resigns, is equal unable to serve as a director or greater than 9.0is removed, with or without cause, the Purchaser shall give written notice to the Secretary of the Company designating a replacement Purchaser Representative. Promptly upon receipt of such notice, the Company shall use its best efforts to fill the resulting vacancy by causing the person designated in the notice to be appointed to fill such vacancy.
(c) In the event that the Purchaser Group shall, at any time, cease to beneficially own at least 10% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away ThresholdStock, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director Representative shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members as a director effective as of the Board. The date the Purchaser agrees that Group's aggregate beneficial ownership of Common Stock first falls below 10% and shall cease to be a member of the Board may recuse of Directors; provided, however, that such person's participation in the Purchaser Director by majority vote deliberations of the Board of Directors subsequent to the date of his termination as a director shall not affect in any respect any corporate action which has been approved by a majority of the remaining members of the Board of Directors, whether at a meeting at which a quorum of the Board of Directors (but excluding the Purchaser DirectorRepresentative for this purpose) from was present or pursuant to a written consent signed by the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusalremaining directors.
(fd) As used herein, the term "beneficial owner" (and, with correlative meanings, "beneficially own" and "beneficial ownership") of any interest means a condition person or entity who, together with his or its affiliates, is or may be deemed a beneficial owner of such interest for purposes of Rule 13d-3 or 13d-5 under the Exchange Act or who, together with his or its affiliates, has the right to become such a beneficial owner of such interest (whether such right is exercisable immediately or only after the appointment passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise, conversion or exchange of any warrant, right or other instrument, or otherwise. As used herein, the term "Purchaser Group" means the Purchaser and all Permitted Transferees of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.Purchaser. Article VI
Appears in 1 contract
Board Representation. (a) Following the closing Within 10 days of the Initial Investmentdate hereof, the Company shall take all necessary action to cause the Purchaser Designees (as defined below) to be elected to the Board of Directors of the Company. In connection with the 1998 Annual Meeting of Shareholders, the Company shall take all necessary action to cause the Purchaser Designees to be nominated and shall use its best efforts to cause such Purchaser Designees to be elected to the Board of Directors of the Company. Thereafter, in connection with any annual meeting of shareholders at which the term of a Purchaser Designee is to expire, the Company will take all necessary action to cause a Purchaser Designee to be nominated and use its best efforts to cause such Purchaser Designee to be elected to the Board of Directors of the Company. In the event of any vacancy arising by reason of the resignation, death, removal, or inability to serve of any of the Purchaser Designees, Purchaser shall be entitled to designate one Qualified Candidate a successor to fill such vacancy for the Nomination unexpired term. If any Purchaser Designee is not elected at an annual meeting of shareholders, Purchaser shall be entitled to designate an alternative Person and Governance Committee (the “NGC”) Company shall, within 10 days of such designation, take all necessary action to cause such alternative Person to be elected to the Board of Directors of the Company Company. "Purchaser Designees" shall mean those individuals designated from time to time by Purchaser to serve on the Company's Board of Directors. The number of Purchaser Designees shall be the smallest number possible such that the ratio of Purchaser Designees to total number of directors (the “Board”) for appointment to the Board (any such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment after election of the Purchaser Director and Designees) is at any time greater than or equal to the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size ratio of the Board number of Primary Shares held by one director). Thereafter, neither the NGC nor the Board shall withhold Purchaser and its recommendation for the re-election of such Purchaser Director Affiliates to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount total number of shares of Common Stock equal to at least the Fall-away Threshold, outstanding (e.g. if there are 7 directors without the Purchaser will have no further rights under this Section 7.1 and, at the written request Designees and Purchaser and its Affiliates own 27% of the BoardCommon Stock outstanding, then the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the number of Purchaser Director shall Designees will be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed bythree, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives resulting in a proxy statement or other filings in accordance with Requirements total of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement10 directors).
Appears in 1 contract
Board Representation. (a) Following Each of USRG and ETP shall have the closing of the Initial Investment, the Purchaser shall be entitled right to designate one Qualified Candidate Director for election to the Nomination Company’s Board of Directors, upon the terms and Governance conditions set forth in this Section 2. The Nominating Committee (the “NGC”) of shall recommend to the Board of Directors that one Qualified Director designated by each of USRG and ETP (each a “Director Designee”) be elected to serve as a director and the Board of Directors shall use its reasonable efforts to cause the election of such designated Qualified Director with a term of office beginning no later than concurrently with or immediately following the Closing and, if the Board of Directors is classified, ending no earlier than the third annual meeting of stockholders of the Company following the Closing. The identification of a Director Designee by each of USRG and ETP shall occur in time sufficient (as reasonably established by the “Board”Board of Directors) for appointment such Director Designee’s name to be included in the Board (any such designee, prospectus used in connection with the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment marketing of the Purchaser Planned Public Offering and such Director and the Board Designee shall appoint furnish such Purchaser Director Designee’s consent to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected named as a director of in such prospectus in form reasonably requested by the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the BoardCompany.
(b) The Purchaser shall have In the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided event that any such replacement Director Designee shall be cease to serve as a Qualified Candidate. The Board shall promptly take all action reasonably required to fill director for any reason, the vacancy resulting therefrom shall be filled with a Qualified Director designated by the person, USRG or ETP, as the case may be, that designated the Director Designee that so ceases to serve; provided that USRG and ETP shall not be obligated to designate an individual to fill such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board)vacancy.
(c) The Purchaser Company agrees with USRG that if ▇▇▇▇▇▇▇▇ ▇▇▇▇ is serving on the Board of Directors as the Director Designee of USRG and he is an Independent Director, then ▇▇▇▇▇▇▇▇ ▇▇▇▇ shall be entitled to receive from the Company the same indemnification in connection with his or her role as appointed a director as the other members member of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the BoardNominating Committee. The Company further agrees with ETP that if ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is serving on the Board of Directors as the Director Designee of ETP, he is an Independent Director and ▇▇▇▇▇▇▇▇ ▇▇▇▇ is not serving on the Nominating Committee, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ shall notify the Purchaser Director of all regular and special meetings be appointed a member of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other membersNominating Committee.
(d) If the Purchaser no longer beneficially owns an aggregate amount The agreements set forth in this Section 2 shall terminate and be of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at force or effect upon the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed earliest to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to occur of: (i) the exercise of any date that is the third anniversary of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or Closing, (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject date of that recusal.
(f) As a condition to the appointment Change of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies Control of the Company, in and (iii) if the Closing has not occurred on or before June 30, 2012, on July 1, 2012. In addition, as to each caseof USRG and ETP, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as agreements set forth in this AgreementSection 2 benefiting each of USRG and ETP shall terminate and be of no further force or effect as to it upon the date following the Closing when it ceases to be the beneficial owner of at least 50% of the Series B Preferred Stock it would be entitled to receive if the shares of Series A Preferred Stock that it owns of record on the date hereof were converted pursuant to the provisions of Section F of Article IV of the Second Restated Certificate (assuming the over-allotment option of the underwriters for Planned Public Offering is not exercised) or, prior to the Closing, on the date when it ceases to beneficially own at least 50% of the Series A Preferred Stock that it owns of record as of the date hereof.
Appears in 1 contract
Sources: Investment Agreement (Renewable Energy Group, Inc.)
Board Representation. (a) Following On or prior to the closing Closing Date, the Board of Directors of the Initial InvestmentCompany shall be expanded by two positions, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇ shall be appointed to fill the vacancies created by such expansion with ▇▇. ▇▇▇▇▇ designated as a Class I director and ▇▇. ▇▇▇▇▇▇ designated as a Class III director. Thereafter, for so long as Purchasers and the Permitted Transferees own, in the aggregate, at least the Required Interest, Purchasers shall be entitled to designate an aggregate of two directors on the management slate of nominees to the Company's Board of Directors (the "Purchaser Designees") (with MSP having the right to designate one director and MSREF III having the right to designate one director) except the foregoing number of directors shall be reduced to the extent one or more Purchaser Designees have been elected to and are serving on the Board of Directors and are in a class of directors not currently standing for re- election. In the event that the aggregate interest owned by Purchasers and the Permitted Transferees shall be less than the Required Interest but equal to or greater than the Minimum Interest and Purchasers currently have two Purchaser Designees serving on the Board of Directors, then Purchasers shall cause one of the two Purchaser Designees to resign within 10 Business Days, the Purchaser Board of Directors shall be reduced by one member and thereafter MSP shall be entitled to designate one Qualified Candidate member on the management slate of nominees to the Nomination Company's Board of Directors (until such time as the aggregate interest owned by Purchasers and Governance Committee the Permitted Transferees shall be less than the Minimum Interest, whereupon Purchasers shall within 10 Business Days cause the remaining Purchaser Designee to resign and Purchasers shall have no further rights under this Section) except the foregoing shall not apply to the extent MSP's Purchaser Designee has been elected to and is serving on the Board of Directors and is in a class of directors not currently standing for re-election. At least 90 days prior to each annual meeting of shareholders at which a Purchaser Designee will stand for election, MSREF III and MSP, as the case may be, shall provide written notice to the Company indicating the Purchaser Designee to be nominated by each such Purchaser at such annual meeting, and such notice shall set forth as to each Person proposed for nomination all information relating to such Persons that is required to be disclosed in solicitations of proxies for election of directors pursuant to Regulation 14A under the Exchange Act (including such Person's written consent to being named in the “NGC”related proxy statement as a nominee and to serving as a director if elected).
(b) The Company shall use its reasonable best efforts at all times to take such action as is necessary to ensure that the nominating committee of the Board of Directors (or the full Board if there is no nominating committee) of the Company shall nominate and recommend to the shareholders of the Company and the shareholders of the Company shall elect the Purchaser Designees to the Board of Directors. As a condition precedent to the inclusion of any Purchaser Designee on any slate of nominees to be recommended to shareholders by the Board of Directors pursuant to Section 4.10(a), the nominating committee of the Board (or the full Board if there is no nominating committee) may review the information provided pursuant to Section 4.10(a) to evaluate in good faith such Purchaser Designee's character and fitness to serve as a director. If the nominating committee (or the full Board if there is no nominating committee) determines in good faith that any such Purchaser Designee lacks the character or fitness to serve as a director based on applicable legal and reasonable commercial standards, the nominating committee (or the full Board if there is no nominating committee) shall inform the Purchaser who nominated such Purchaser Designee of such determination, and such Purchaser shall then have the right to propose an alternative Purchaser Designee who is reasonably acceptable to the Company. All Purchaser Designees elected to the Board of Directors shall receive, during the period in which they serve, any and all benefits (including, without limitation, any director compensation and grants of stock options under the 1998 Non-Employee Director Plan) provided to the other members of the Board of Directors of the Company Company.
(c) If at any time Purchasers and the “Board”) for appointment Permitted Transferees are entitled to designate one or more nominees to the Board (any such designee, of Directors pursuant to this Section 4.10 and Purchasers do not have a representative on the “Purchaser Director”). Upon such designationBoard, so long as Purchasers and the Purchaser Director is a Qualified CandidatePermitted Transferees own, in the aggregate, at least the Minimum Interest, the NGC Company shall recommend permit two representatives (or in the appointment case that Purchasers are entitled to designate only one nominee to the Board, only one representative) of Purchasers (which representatives shall be acceptable to the Purchaser Director and the Board shall appoint such Purchaser Director Company in its reasonable discretion) to fill a vacancy on the Board (it being understood that if no vacancy then existsattend, the Board shall create such a vacancy by taking such actions but not vote, as are necessary to increase the size observers at each meeting of the Board by one director). Thereafter, neither the NGC nor of Directors or any committee of the Board shall withhold its recommendation for empowered to act with full authority of the re-election of entire Board, including telephonic meetings, provided that each such Purchaser Director representative executes and delivers to the BoardCompany a confidentiality agreement in a form reasonably satisfactory to the Company prior to attendance at any such meetings. Following the expiration The Company shall cause notice of any meeting of the Purchaser Director’s initial term, Board of Directors or any such committee of the Board to be delivered to any such representatives at the same time and in the same manner as notice is given to the members of the Board of Directors. Such representatives will be entitled to receive all written materials given to the members of the Board of Directors in connection with such meetings at the time such materials and information are given to the Board of Directors. The Company shall reimburse such representatives for his or her reasonable out- of-pocket expenses incurred in connection with attending meetings of the Board of Directors or any such committee of the Board.
(d) For so long as Purchaser’s aggregate beneficial ownership any Purchaser or Permitted Transferee has the right to designate at least one director on a management slate of nominees to the Common Stock is equal to or greater than 9.0% Company's Board of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”)Directors, the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) shall use reasonable best efforts to have cause the Purchaser Director elected as a director Board of Directors and the shareholders of the Company not to increase the number of members of the Board of Directors above nine without the prior written consent of each Purchaser and Permitted Transferee (unless such increase is required to comply with Applicable Law), which consent may be withheld in each Purchaser's and Permitted Transferee's reasonable discretion. In the event of a vacancy (either by death, removal or resignation) of a director other than a Purchaser Designee which does not cause the total number of directors to be less than seven, the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all use reasonable best efforts to have cause the Board of Directors not to appoint a replacement to fill such person elected as director vacancy without the prior written consent of the Company each Purchaser and Permitted Transferee (unless required to comply with Applicable Law and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the BoardCompany's bylaws).
(c) The Purchaser Director shall , which consent may be entitled to receive from the Company the same indemnification withheld in connection with his or her role as a director as the other members of the Board, each Purchaser's and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the BoardPermitted Transferee's reasonable discretion.
(e) The Each Purchaser Director Designee shall be subject entitled to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members serve on any standing committee of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors except to the extent directly relating the Purchaser Designee's participation would cause the Purchaser Designees' participation on such committee to exceed their proportionate representation on the full Board, provided, however, that at least one Purchaser Designee may serve on each standing committee selected in accordance with this subsection (e). Subject to the subject preceding sentence, MSREF III and MSP shall each have the right to select the committees of the Board on which its Purchaser Designee will serve. The Company shall use its reasonable best efforts at all times as is necessary to ensure that recusaleach Purchaser Designee is appointed to all such committees of the Board of Directors.
(f) As a condition For so long as Purchasers and the Permitted Transferees own, in the aggregate, at least the Minimum Interest and the Purchaser Designees are serving on the Board of Directors, Purchasers shall, and shall cause the Permitted Transferees, to the appointment vote all of their shares of Common Stock at any regular or special meeting of the Purchaser Director (including any replacement thereof) or nomination for election as a director shareholders of the Company pursuant to this Section 7.1, such Purchaser Director shall provide (and any adjournments thereof) called for the purpose of electing directors to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directorsBoard, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Directoror, to the extent the same is made permitted by the other members Company's Restated Articles of Organization and Amended and Restated Bylaws and by Applicable Law, in any written consent executed in lieu of such a meeting of shareholders, for election of the Board:management slate of nominees (other than the Purchaser Designees) to the Company's Board of Directors. The Purchasers shall and shall cause the Permitted Transferees to vote all of their shares of Common Stock at any regular or special meeting of the shareholders of the Company (and any adjournments thereof) called for the purpose of approving the issuance of the shares under this Agreement in favor of such issuance and the transactions contemplated by this Agreement.
(1g) Subject to be availability on reasonable terms and at a reasonable cost, for so long as any Purchaser Designee remains on the Board of Directors, the Company shall use reasonable best efforts to maintain directors' and officers' liability insurance with financially sound and reputable insurers at a level of coverage of at least $10,000,000.
(h) It is understood and agreed that the Company's Board of Directors is subject toto fiduciary duties under Applicable Law, bound by and duly comply that the Company's shareholders have rights with respect to the code of conduct and other policies composition of the Company, in each case, to the extent applicable to all other non-executive directors Board of Directors under Applicable Law and the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory 's Amended and Restated Bylaws. Accordingly, for purposes of this Section 4.10, all obligations of the Company; and
Company under paragraphs (iva), (b), (d) an irrevocable advance resignation letter pursuant and (e) hereof shall be deemed to which be "to use reasonable best efforts" to cause the Purchaser Director shall resign from intended action to be taken, recognizing that the Company cannot guaranty what action its Board as set forth of Directors or stockholders may take in this Agreementthe future.
Appears in 1 contract
Sources: Securities Purchase Agreement (Morgan Stanley Dean Witter & Co)
Board Representation. (a) Following Concurrently with the closing execution of the Initial InvestmentOriginal Agreement, the Purchaser shall Company caused two nominees of EIP to be entitled to designate one Qualified Candidate appointed to the Nomination and Governance Committee Board of Directors of the Company (each, an "EIP Designee"). Pursuant to the “NGC”terms of the Stock Purchase Agreement, at the Second Closing (as defined in such agreement) the Company shall cause the size of the Board of Directors of the Company to be increased to nine members and cause two nominees of Purchaser (each, a "Purchaser Designee" and, together with the “Board”EIP Designees, the "Holder Designees") for appointment be to elected or appointed to the Board (any such designeeof Directors. For the purposes of this Article 2, the “Purchaser Director”)term "EIP" shall include any Holders that become Holders by being transferees of EIP and the term "Purchaser" shall include any Holders that become Holders by being transferees of Purchaser. Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment The Board of Directors of the Purchaser Director and the Board Company shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such also take all actions as are necessary to increase ensure that a Purchaser Designee (in addition to the size existing EIP Designee) is appointed to the Compensation Committee and Audit Committee of the Board by one director). Thereafterof Directors, neither and, if established, the NGC nor Executive Committee of the Board of Directors. Each Holder Designee shall withhold its serve until the next annual meeting of shareholders of the Company and until their respective successors are elected and qualified or until their earlier death, resignation or removal from office. The Company agrees to continue to cause two EIP Designees and two Purchaser Designees to be nominated for election to the Board of Directors of the Company at each annual meeting of the Company's shareholders after such Second Closing. The Holders agree that no Holder Designee shall be a director or officer of an independent exploration and production company that could reasonably be viewed as a competitor of the Company. To the extent the Company's proxy statement for any annual meeting of shareholders includes a recommendation for regarding the re-election of such Purchaser Director any other nominees to the Board. Following the expiration Company's Board of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”)Directors, the Company will be required agrees to (i) include the Purchaser Director in the Company’s slate a recommendation of director nominees and recommend to its shareholders Board of Directors that the Company’s shareholders also vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the BoardHolders' nominees. The Company shall notify appoint an EIP Designee and a Purchaser Designee serving on the Purchaser Director Company's Board of all regular and special meetings Directors to be members of the BoardCompensation Committee and Audit Committee of the Board of Directors and, if established, the Executive Committee of the Board of Directors. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees ensure that the Board may recuse the Purchaser Director by majority vote articles of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director incorporation and bylaws of the Company pursuant to this Section 7.1as in effect immediately following the date hereof do not, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directorsat any time thereafter, candidates for directors and their respective Affiliates and representatives conflict in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply respect with the code provisions of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.
Appears in 1 contract
Board Representation. (a) Following Concurrently with the closing execution of the Initial InvestmentOriginal Agreement, the Purchaser shall Company caused two nominees of EIP to be entitled to designate one Qualified Candidate appointed to the Nomination and Governance Committee Board of Directors of the Company (each, an "EIP Designee"). Pursuant to the “NGC”terms of the Stock Purchase Agreement, at the Closing (as defined in such agreement) the Company shall cause the size of the Board of Directors of the Company to be increased to nine members and cause two nominees of Purchaser (each, a "Purchaser Designee" and, together with the “Board”EIP Designees, the "Holder Designees") for appointment be to elected or appointed to the Board (any such designeeof Directors. For the purposes of this Article 2, the “Purchaser Director”)term "EIP" shall include any Holders that become Holders by being transferees of EIP and the term "Purchaser" shall include any Holders that become Holders by being transferees of Purchaser. Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment The Board of Directors of the Purchaser Director and the Board Company shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such also take all actions as are necessary to increase ensure that a Purchaser Designee (in addition to the size existing EIP Designee) is appointed to the Compensation Committee and Audit Committee of the Board by one director). Thereafterof Directors, neither and, if established, the NGC nor Executive Committee of the Board of Directors. Each Holder Designee shall withhold its serve until the next annual meeting of shareholders of the Company and until their respective successors are elected and qualified or until their earlier death, resignation or removal from office. The Company agrees to continue to cause two EIP Designees and two Purchaser Designees to be nominated for election to the Board of Directors of the Company at each annual meeting of the Company's shareholders after the Closing. The Holders agree that no Holder Designee shall be a director or officer of an independent exploration and production company that could reasonably be viewed as a competitor of the Company. To the extent the Company's proxy statement for any annual meeting of shareholders includes a recommendation for regarding the re-election of such Purchaser Director any other nominees to the Board. Following the expiration Company's Board of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”)Directors, the Company will be required agrees to (i) include the Purchaser Director in the Company’s slate a recommendation of director nominees and recommend to its shareholders Board of Directors that the Company’s shareholders also vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected as a director of the Company and the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the BoardHolders' nominees. The Company shall notify appoint an EIP Designee and a Purchaser Designee serving on the Purchaser Director Company's Board of all regular and special meetings Directors to be members of the BoardCompensation Committee and Audit Committee of the Board of Directors and, if established, the Executive Committee of the Board of Directors. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees ensure that the Board may recuse the Purchaser Director by majority vote articles of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director incorporation and bylaws of the Company pursuant to this Section 7.1as in effect immediately following the date hereof do not, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directorsat any time thereafter, candidates for directors and their respective Affiliates and representatives conflict in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply respect with the code provisions of conduct and other policies of the Company, in each case, to the extent applicable to all other non-executive directors of the Company; and
(2) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant to which the Purchaser Director shall resign from the Board as set forth in this Agreement.
Appears in 1 contract
Board Representation. (a) Following From the closing date of this Agreement, the Company and, after the Effective Time, the Surviving Corporation, shall take all Necessary Actions such that:
(i) Immediately following the Effective Time, the Sponsor Designee shall serve as a Class III director of the Initial Investment, Company and a director of the Purchaser shall be entitled to designate one Qualified Candidate to Surviving Corporation for a term expiring at the Nomination and Governance Committee third annual meeting of stockholders of the Company following the Effective Time (the “NGCFirst Term”) ); provided that if the Charter shall have been amended to remove the classification of the Board of Directors of the Company (the “Board”) for appointment to the Board (any such designee, the “Purchaser Director”). Upon such designation, so long as the Purchaser Director is a Qualified Candidate, the NGC shall recommend the appointment of the Purchaser Director and the Board shall appoint such Purchaser Director to fill a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size of the Board by one director). Thereafter, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases by the Company of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”), the Company will be required to (i) include the Purchaser Director in the Company’s slate of director nominees and recommend to its shareholders shall take all Necessary Actions such that the Company’s shareholders vote in favor of the electing the Purchaser Director to the Board at the Company’s annual meeting, and (ii) use reasonable best efforts to have the Purchaser Director elected Sponsor Designee shall serve as a director of the Company until the end of the First Term.
(ii) So long as the Sponsor and its Permitted Transferees collectively hold at least 50% of the Sponsor Shares, the Sponsor Designee shall be re-nominated for election as a Class III director of the Company at the third annual meeting of stockholders of the Company following the Effective Time and shall serve as a Class III director of the Company and a director of the Surviving Corporation for a term expiring at the sixth annual meeting of stockholders of the Company following the Effective Time (the “Second Term”); provided, that if the Sponsor Designee is not elected to serve as a Class III director of the Company, the Company shall solicit proxies for each take all Necessary Actions to appoint the Sponsor Designee as a Class III director of the Company, including increasing the size of the Board and appointing the Sponsor Designee to fill the vacancy created by such person increase; provided, further, that if the Charter shall have been amended to remove the same extent as it does for any classification of its other nominees to the Board, the Company shall take all Necessary Actions such that the Sponsor Designee shall serve as a director of the Company until the end of the Second Term.
(b) The Purchaser shall have Company agrees not to take, directly or indirectly, any actions that would frustrate, obstruct or otherwise affect the power to designate the Purchaser Director’s replacement upon the death, resignation, retirement, disqualification or removal from office provisions of such director; provided that any such replacement shall be a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board)this Section 7.
(c) The Purchaser Director Company agrees that any director serving on the Board pursuant to this Section 7 shall be entitled to receive from the Company the same indemnification in connection with his or her role as a director as the other members of the Board, rights and the Purchaser Director shall be entitled to reimbursement for expenses incurred to the same extent as the other members of the Board. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided privileges applicable to all other members of the Board concurrently as generally or to which all such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to at least the Fall-away Threshold, the Purchaser will have no further rights under this Section 7.1 and, at the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority vote of the members of the Board (but excluding the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action with respect to (i) the exercise of any are entitled. In furtherance of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or (ii) any transaction proposed by, or withforegoing, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed Company shall indemnify, exculpate, and reimburse fees and expenses of such director and provide such director with directors’ and officers’ liability insurance to the directors to the same extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination it indemnifies, exculpates, reimburses and provides insurance for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) Board pursuant to be subject tothe Charter, bound by and duly comply with the code of conduct and Bylaws or other policies organizational documents of the Company, in each caseany indemnification agreement with such director, to applicable Law or otherwise; provided, that upon removal or resignation of such director for any reason, the extent applicable to Company shall take all other non-executive directors of the Company; and
(2) to provide such additional information reasonably actions reasonable necessary to comply with future legal extend such directors’ and officers’ liability insurance coverage for a period of not less than six (6) years from any such event in respect of any act or regulatory obligations of the Company; and
(iv) an irrevocable advance resignation letter pursuant omission occurring at or prior to which the Purchaser Director shall resign from the Board as set forth in this Agreementsuch event.
Appears in 1 contract
Board Representation. (a) Following The Merger Agreement provides that promptly upon the closing purchase by Parent or any of its subsidiaries pursuant to the Initial InvestmentOffer, the Purchaser and from time to time thereafter, Parent shall be entitled to designate one Qualified Candidate such number of directors, rounded up to the Nomination next whole number (but in no event more than one less than the total number of directors of the Board of Directors of the Company) as will give Parent, subject to compliance with Section 14(f) of the Exchange Act, representation on the Board of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to the Merger Agreement) and Governance Committee (y) the “NGC”percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being the "Board Percentage"). The Company has agreed, upon request of Parent, to promptly satisfy the Board Percentage by (i) increasing the size of the Board of Directors of the Company or (ii) using its best efforts to secure the “Board”) for appointment resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board of Directors of the Company and to cause Parent's designees promptly to be so elected. Following the election or appointment of Parent's designees pursuant to the Merger Agreement and prior to the Effective Time of the Merger, any amendment or termination of the Merger Agreement, extension for the performance or waiver of the obligations or other acts of Parent or the Purchaser or waiver of the Company's rights thereunder, shall require the concurrence of a majority of the directors of the Company then in office who were directors on the date of the Merger Agreement. Consideration to be Paid in the Merger. The Merger Agreement provides that upon the terms (any such designeebut subject to the conditions) set forth in the Merger Agreement, the “Purchaser Director”). Upon such designation, so long as will be merged with and into the Purchaser Director is a Qualified Candidate, Company whereupon the NGC shall recommend the appointment separate existence of the Purchaser Director shall cease, and the Board Company shall appoint such Purchaser Director to fill be the surviving corporation (the "Surviving Corporation") and shall be a vacancy on the Board (it being understood that if no vacancy then exists, the Board shall create such a vacancy by taking such actions as are necessary to increase the size wholly-owned subsidiary of the Board by one director)Parent. ThereafterIn the Merger, neither the NGC nor the Board shall withhold its recommendation for the re-election of such Purchaser Director to the Board. Following the expiration of the Purchaser Director’s initial term, so long as Purchaser’s aggregate beneficial ownership of the Common Stock is equal to each Share (excluding shares owned directly or greater than 9.0% of the issued and outstanding Common Stock (without taking into account any reductions in the Purchaser’s ownership stake resulting from (x) new issuances of Common Stock or (y) repurchases indirectly by the Company or any of Common Stock and the requirements of Section 7.4(b)) (the “Fall-away Threshold”)its subsidiaries or by Parent, the Company will be required to (i) include the Purchaser Director in the Company’s slate or any other subsidiary of director nominees Parent and recommend to its shareholders that the Company’s shareholders vote holders who have not voted in favor of the electing Merger or consented to the Merger in writing and who have demanded appraisals for such Shares in accordance with the Delaware Law) outstanding immediately prior to the time the Certificate of Merger, or if applicable the Certificate of Ownership and Merger, is duly filed with the Secretary of the State of Delaware or at such later time as is specified in such Certificate of Merger (the "Effective Time") shall be converted into the right to receive the Merger Consideration in cash, without any interest thereon, less any required withholding taxes. Each share of the capital stock of the Purchaser Director outstanding immediately prior to the Board Effective Time shall be converted into and become one fully paid and nonassessable share of Common Stock, par value $.01 per share, of the Company, with the same rights and privileges as the shares so converted and shall constitute the only outstanding shares of capital stock of the Surviving Corporation. The Merger Agreement provides that the closing of the Merger shall occur as soon as practicable, but in no event later than five business days after satisfaction or, to the extent permitted under the Merger Agreement, waiver of the conditions to the Merger set forth in the Merger Agreement. Employee Options, Warrants, Class A Exchangeable Preferred Stock and Exchangeable Notes. The Merger Agreement provides that, at the Company’s annual meetingEffective Time, all outstanding Employee Options (regardless of whether or not such options have vested) shall either (i) be cancelled and each holder of a cancelled option shall be entitled to receive, in consideration for the cancellation of such option, an amount in cash equal to the product of (x) the number of Shares previously subject to such option and (y) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such option or (ii) if elected by such holder, and if this option is made available by Parent, such option will convert into options or other rights to acquire shares of the common stock of Parent, on terms determined in good faith by Parent to have substantially the same value as the value of such option. The Merger Agreement further provides that at or prior to the Effective Time, the Company shall use its reasonable best efforts to have the Purchaser Director elected as a director cause each holder of the Company and Warrants that are then outstanding to be exercised for Shares. At the Company shall solicit proxies for each such person to the same extent as it does for any of its other nominees to the Board.
(b) The Purchaser shall have the power to designate the Purchaser Director’s replacement upon the deathEffective Time, resignation, retirement, disqualification or removal from office of such director; provided that any such replacement proper provision shall be made for discharging all obligations under all outstanding unexercised Warrants by providing that each holder of a Qualified Candidate. The Board shall promptly take all action reasonably required to fill the vacancy resulting therefrom with such person (including using all reasonable best efforts to have such person elected as director of the Company and the Company soliciting proxies for such person to the same extent as it does for any of its other nominees to the Board).
(c) The Purchaser Director Warrant shall be entitled to receive from solely receive, in consideration for the exercise and cancellation of such Warrant, an amount in cash equal to the product of (x) the number of shares previously subject to such Warrant and (y) the excess, if any, of the Merger Consideration over the exercise price per Share previously subject to such Warrant. In addition, at or prior to the Effective Time, with the prior consent of Parent, the Company the same indemnification in connection with his shall give any required notice to redeem, and redeem or her role as a director as the other members deposit funds sufficient to redeem, all of the Boardoutstanding shares of Class A Exchangeable Preferred Stock pursuant to the terms of ASAA International, Inc.'s (the issuer of such stock and a wholly-owned subsidiary of the Company) Certificate of Incorporation. At or prior to the Effective Time, with the prior consent of Buyer, the Company shall give any required notice to redeem, and redeem or deposit funds sufficient to redeem all of the Exchangeable Notes pursuant to the terms thereof. Stockholder Meeting. The Merger Agreement provides that unless Purchaser acquires at least 90% of the outstanding Shares in the Offer, if required by applicable law, the Company shall cause a special meeting of the Company's stockholders (the "Company Stockholder Meeting") to be duly called and held as soon as reasonably practicable after the purchase of Shares pursuant to the Offer for the purpose of acting upon proposals to approve the Merger Agreement and the transactions contemplated thereby. At the Company Stockholder Meeting, Parent shall cause all the shares of the Company then owned by Parent and the Purchaser Director shall and any of their subsidiaries or affiliates to be entitled to reimbursement for expenses incurred to the same extent as the other members voted in favor of the BoardMerger. The Company shall notify the Purchaser Director of all regular and special meetings of the Board. The Company shall provide the Purchaser Director with copies of all notices, minutes, consents and other materials provided to all other members of the Board concurrently as such materials are provided to the other members.
(d) If the Purchaser no longer beneficially owns an aggregate amount of shares of Common Stock equal to acquires at least 90% of the Fall-away Thresholdoutstanding Shares of the Company in the Offer, the Purchaser will have no further rights under this Section 7.1 and, at Parent shall cause the written request of the Board, the irrevocable resignation letter described in Section 7.1(f)(iv) shall become operative and the Purchaser Director shall Merger to be deemed to have resigned from the Board.
(e) The Purchaser Director shall be subject to customary confidentiality and information use restrictions applicable to members of the Board. The Purchaser agrees that the Board may recuse the Purchaser Director by majority effected without a vote of the members Company's stockholders in accordance with the provisions of Delaware Law. Representations and Warranties. The Merger Agreement contains various representations and warranties of the Board (but excluding parties thereto. These include representations and warranties by the Purchaser Director) from the portion of any Board meeting at which the Board or is evaluating or taking action Company with respect to (i) due incorporation, existence, good standing, corporate power and authority or qualifications of the exercise of any Company and subsidiaries of the Company’s rights or enforcement of any of the obligations under this Agreement or the Reinsurance Agreement or ; (ii) any transaction proposed by, or with, the Purchaser or its Affiliates or Representatives. The Board may withhold from the Purchaser Director any material distributed to the directors to the extent directly relating to the subject of that recusal.
(f) As a condition to the appointment of the Purchaser Director (including any replacement thereof) or nomination for election as a director of the Company pursuant to this Section 7.1, such Purchaser Director shall provide to the Company:
(i) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective Affiliates and representatives in a proxy statement or other filings in accordance with Requirements of Law or any stock exchange rules or listing standards;
(ii) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations; and
(iii) an undertaking in writing by such Purchaser Director, to the extent the same is made by the other members of the Board:
(1) to be subject to, bound by and duly comply with the code of conduct and other policies capitalization of the Company, in each case, to including the extent applicable to all other non-executive directors number of shares of capital stock of the CompanyCompany outstanding, the number of shares reserved for issuance on the exercise of options and similar rights to purchase shares; and
(2iii) to provide such additional information reasonably necessary to comply with future legal or regulatory obligations the authorization, execution, and delivery of the CompanyMerger Agreement and the consummation of transactions contemplated thereby, and the validity and enforceability thereof; and
(iv) an irrevocable advance resignation letter pursuant subject to certain exceptions, the absence of consents and approvals necessary for consummation by the Company of the Merger, and the absence, except as disclosed, of any violations, breaches or defaults which would result from compliance by the Company with any provision of the Merger Agreement; (v) compliance with the Securities Act and the Exchange Act, in connection with the Company SEC Reports (as defined in the Merger Agreement) filed by the Company with the Commission; (vi) compliance with the Exchange Act of the Company Disclosure Documents (as defined in the Merger Agreement), including the Schedule 14D-9; (vii) the absence of certain changes which would constitute a change or effect that is or would be materially adverse to the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole ("Company Material Adverse Effect") and the Company's conduct of business in the ordinary course of business consistent with past practices; (vii) except as disclosed, the absence of pending litigation or violation of any law by the Company which is reasonably likely to have a Company Material Adverse Effect or which seeks to, or is reasonably likely to delay or prevent the consummation of the Offer or the Merger; (viii) certain employee benefit and ERISA matters; (ix) certain tax matters; (x) certain environmental matters; (xi) receipt of a financial opinion of DLJ; (xii) certain matters relating to affiliate transactions; (xiii) certain labor matters and (xiv) certain matters related to real property. Parent and the Purchaser Director shall resign from have also made certain representations and warranties, including with respect to (i) due incorporation, existence, good standing, corporate power and authority or qualifications of the Board as set forth in this Agreement.Company and
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Sources: Tender Offer Statement