Composition of the Board of Directors. (i) WELLC shall, on behalf of the WELLC Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its control, (ii) ERI shall, on behalf of the ERI Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary actions within its control and (iii) the Belfer Group shall, on behalf of the Belfer Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its control, in each case, so that the composition of the Board of Directors and the manner of selecting members thereof shall be as follows: (a) The Board of Directors shall be comprised of eleven (11) Directors (two of whom shall be Independent Directors) divided into three classes, with Directors in each class having a three-year term following a transition period in which the initial Class 1 Directors serve a one-year term, the initial Class 2 Directors serve a two-year term and the initial Class 3 Directors serve a three-year term. WELLC and ERI shall each have the right to designate one (1) Director to Class 3, one (1) Director to Class 2 and one (1) Director to Class 1 and the Belfer Group shall have the right to designate one (1) Director to Class 3 and one (1) Director to Class 1; provided, that the initial membership of the Board of Directors at the Effective Time and the class to which each director nominee shall belong shall be as set forth in Exhibit 2.3 of the Merger Agreement. Each of WELLC, ERI and the Belfer Group, respectively, shall have the right (i) subject to applicable law, to remove, with or without cause, any Director nominated in accordance with this Section 3.2 by WELLC, ERI or the Belfer Group, respectively, and (ii) to designate any replacement for a Director nominated in accordance with this Section 3.2 by WELLC, ERI or the Belfer Group, respectively, upon the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors shall duly appoint as a Director each person so designated to fill a vacancy on the Board of Directors. Notwithstanding the foregoing: (i) if either the WELLC Parties or the ERI Parties own less than 18% of the Company's then outstanding Common Stock, then WELLC or ERI, as the case may be, shall have the right to designate only: (x) one (1) Director to the class of Directors having the then longest remaining term; and (y) one (1) Director to the class of Directors having the next longest remaining term; provided that in either case, if necessary to put one or more of a Party's Director designees into such classes, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; (ii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 8% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall have the right to designate only one (1) Director to the class of Directors having the then longest remaining term; provided that if necessary to put a Party's Director designee into such class, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; and (iii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 5% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall not have the right to designate any Directors. (b) For so long as any Party has the right to designate a Director under this Agreement, the Company will give such Party written notice of each regularly scheduled meeting of its Board of Directors as far in advance as such notice is required to be delivered to the Directors (and at least three business days prior to the date of each special meeting of the Board of Directors), and the Board of Directors will permit up to two (2) representatives of each such Party to attend as observers of all meetings of the Board of Directors (including any meetings of committees thereof); provided that in the case of telephonic meetings conducted in accordance with the Company's bylaws and applicable law, each such Party's representatives will be given the opportunity to listen to such telephonic meetings. Each representative will be entitled to receive all written materials and other information (including, without limitation, copies of meeting minutes and press releases) given to Directors in connection with such meetings at the same time such materials and information are given to the Directors. If the Board of Directors proposes to take any action by written consent in lieu of a meeting of the Board of Directors or of any committee thereof, the Company will give written notice thereof to each such Party who has the right to designate a director under this Agreement prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company will reimburse each Party that has observer rights under this Section 3.2(b) for all reasonable expenses incurred by such Party's representatives in connection with attending meetings of the Board of Directors and committees thereof.
Appears in 1 contract
Composition of the Board of Directors. (ia) WELLC shallOn and after ------------------------------------- the date hereof, on behalf the Board of Directors shall initially be comprised of seven Directors, subject to expansion after the WELLC Parties, vote all shares of Common Stock owned or controlled date hereof by them, and shall take all necessary action within its control, (ii) ERI shall, on behalf of the ERI Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary actions within its control and (iii) the Belfer Group shall, on behalf of the Belfer Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its control, in each case, so that the composition of the Board of Directors.
(b) The Shareholders acknowledge that Article VII of the Company's Certificate of Incorporation provides for staggered terms of the Directors, with Directors and serving in Class I, Class II, or Class III. The Shareholders agree that until the manner first annual meeting of selecting members thereof shareholders following the date hereof, the Board of Directors shall be composed as follows:
(ai) The Board of Class I - ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) Class II - ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(iii) Class III - ▇▇▇▇▇ Tanning, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(c) From and after the date hereof, Directors shall be comprised nominated as follows (it being understood that such nomination shall include any nomination of eleven any incumbent Director for reelection to the Board of Directors):
(11i) Directors (two of whom shall be Independent Directors) divided into three classes, with Directors in each class having a three-year term following a transition period in which the initial Class 1 Directors serve a one-year term, the initial Class 2 Directors serve a two-year term and the initial Class 3 Directors serve a three-year term. WELLC and ERI shall each have the right to designate one (1) Director to Class 3, one (1) Director to Class 2 and one (1) Director to Class 1 and the Belfer Group TTC shall have the right to designate one (1) Director to in Class 3 and one (1) Director to Class 1; provided, that the initial membership II of the Board of Directors at the Effective Time and the class to which each director nominee shall belong shall be (it being understood that ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is TTC's initial designee as set forth in Exhibit 2.3 clause (b) above);
(ii) TFP shall have the right to designate one Director, in any class, to the Board of Directors (it being understood that ▇▇▇▇▇ Tanning is TFP's initial designee as set forth in clause (b) above);
(iii) WinSoft shall have the Merger Agreement. right to designate one Director, in any class, to the Board of Directors (it being understood that ▇▇▇▇▇ ▇▇▇▇▇▇▇ is WinSoft's initial designee as set forth in clause (b) above);
(d) If there are insufficient vacancies in a particular class of directors, the available positions shall be allocated first to the nominee of TTC (as to Class II only), second to the nominee of TFP, and third to the nominee of WinSoft (it being understood that each of TTC, TFP and WinSoft shall not have the right to have more than one nominee on the Board of Directors at any time).
(e) Each of WELLCTTC, ERI TFP and the Belfer GroupWinSoft, respectively, shall have the right (i) subject to applicable law, to remove, with or without cause, any Director nominated in accordance with this Section 3.2 by WELLCeach of TTC, ERI TFP or the Belfer GroupWinsoft, respectively, and (ii) to designate any replacement for a Director nominated in accordance with this Section 3.2 by WELLCTTC, ERI TFP or the Belfer GroupWinsoft, respectively, (including the initial designees during the period prior to the first annual meeting of shareholders following the date hereof) upon the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors shall duly appoint as a Director each person so designated to fill a vacancy on the Board of Directors. Notwithstanding the foregoing:
(i) if either the WELLC Parties or the ERI Parties own less than 18% of the Company's then outstanding Common Stock, then WELLC or ERI, as the case may be, shall have the right to designate only: (x) one (1) Director to the class of Directors having the then longest remaining term; and (y) one (1) Director to the class of Directors having the next longest remaining term; provided that in either case, if necessary to put one or more of a Party's Director designees into such classes, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees;
(ii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 8% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall have the right to designate only one (1) Director to the class of Directors having the then longest remaining term; provided that if necessary to put a Party's Director designee into such class, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; and
(iii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 5% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall not have the right to designate any Directors.
(b) For so long as any Party has the right to designate a Director under this Agreement, the Company will give such Party written notice of each regularly scheduled meeting of its Board of Directors as far in advance as such notice is required to be delivered to the Directors (and at least three business days prior to the date of each special meeting of the Board of Directors), and the Board of Directors will permit up to two (2) representatives of each such Party to attend as observers of all meetings of the Board of Directors (including any meetings of committees thereof); provided that in the case of telephonic meetings conducted in accordance with the Company's bylaws and applicable law, each such Party's representatives will be given the opportunity to listen to such telephonic meetings. Each representative will be entitled to receive all written materials and other information (including, without limitation, copies of meeting minutes and press releases) given to Directors in connection with such meetings at the same time such materials and information are given to the Directors. If the Board of Directors proposes to take any action by written consent in lieu of a meeting of the Board of Directors or of any committee thereof, the Company will give written notice thereof to each such Party who has the right to designate a director under this Agreement prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company will reimburse each Party that has observer rights under this Section 3.2(b) for all reasonable expenses incurred by such Party's representatives in connection with attending meetings of the Board of Directors and committees thereof.
Appears in 1 contract
Composition of the Board of Directors. (ia) WELLC shallOn and after ------------------------------------- the date hereof, on behalf the Board of Directors shall initially be comprised of seven Directors [,subject to expansion after the WELLC Parties, vote all shares of Common Stock owned or controlled date hereof by them, and shall take all necessary action within its control, (ii) ERI shall, on behalf of the ERI Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary actions within its control and (iii) the Belfer Group shall, on behalf of the Belfer Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its control, in each case, so that the composition of the Board of Directors].
(b) The Shareholders acknowledge that Article VII of the Company's Certificate of Incorporation provides for staggered terms of the Directors, with Directors and serving in Class I, Class II, or Class III. The Shareholders agree that until the manner first annual meeting of selecting members thereof shareholders following the date hereof, the Board of Directors shall be composed as follows:
(ai) The Board of Class I - ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ii) Class II - ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(iii) Class III - ▇▇▇▇▇ Tanning, ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(c) From and after the date hereof, Directors shall be comprised nominated as follows (it being understood that such nomination shall include any nomination of eleven any incumbent Director for reelection to the Board of Directors):
(11i) Directors (two of whom shall be Independent Directors) divided into three classes, with Directors in each class having a three-year term following a transition period in which the initial Class 1 Directors serve a one-year term, the initial Class 2 Directors serve a two-year term and the initial Class 3 Directors serve a three-year term. WELLC and ERI shall each have the right to designate one (1) Director to Class 3, one (1) Director to Class 2 and one (1) Director to Class 1 and the Belfer Group TTC shall have the right to designate one (1) Director to in Class 3 and one (1) Director to Class 1; provided, that the initial membership II of the Board of Directors at the Effective Time and the class to which each director nominee shall belong shall be (it being understood that ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ is TTC's initial designee as set forth in Exhibit 2.3 clause (b) above);
(ii) TFP shall have the right to designate one Director, in any class, to the Board of Directors (it being understood that ▇▇▇▇▇ Tanning is TFP's initial designee as set forth in clause (b) above);
(iii) WinSoft shall have the Merger Agreement. right to designate one Director, in any class, to the Board of Directors (it being understood that ▇▇▇▇▇ ▇▇▇▇▇▇▇ is WinSoft's initial designee as set forth in clause (b) above);
(d) If there are insufficient vacancies in a particular class of directors, the available positions shall be allocated first to the nominee of TTC (as to Class II only), second to the nominee of TFP, and third to the nominee of WinSoft (it being understood that each of TTC, TFP and WinSoft shall not have the right to have more than one nominee on the Board of Directors at any time).
(e) Each of WELLCTTC, ERI TFP and the Belfer GroupWinSoft, respectively, shall have the right (i) subject to applicable law, to remove, with or without cause, any Director nominated in accordance with this Section 3.2 by WELLCeach of TTC, ERI TFP or the Belfer GroupWinsoft, respectively, and (ii) to designate any replacement for a Director nominated in accordance with this Section 3.2 by WELLCTTC, ERI TFP or the Belfer GroupWinsoft, respectively, (including the initial designees during the period prior to the first annual meeting of shareholders following the date hereof) upon the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors shall duly appoint as a Director each person so designated to fill a vacancy on the Board of Directors. Notwithstanding the foregoing:
(i) if either the WELLC Parties or the ERI Parties own less than 18% of the Company's then outstanding Common Stock, then WELLC or ERI, as the case may be, shall have the right to designate only: (x) one (1) Director to the class of Directors having the then longest remaining term; and (y) one (1) Director to the class of Directors having the next longest remaining term; provided that in either case, if necessary to put one or more of a Party's Director designees into such classes, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees;
(ii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 8% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall have the right to designate only one (1) Director to the class of Directors having the then longest remaining term; provided that if necessary to put a Party's Director designee into such class, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; and
(iii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 5% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall not have the right to designate any Directors.
(b) For so long as any Party has the right to designate a Director under this Agreement, the Company will give such Party written notice of each regularly scheduled meeting of its Board of Directors as far in advance as such notice is required to be delivered to the Directors (and at least three business days prior to the date of each special meeting of the Board of Directors), and the Board of Directors will permit up to two (2) representatives of each such Party to attend as observers of all meetings of the Board of Directors (including any meetings of committees thereof); provided that in the case of telephonic meetings conducted in accordance with the Company's bylaws and applicable law, each such Party's representatives will be given the opportunity to listen to such telephonic meetings. Each representative will be entitled to receive all written materials and other information (including, without limitation, copies of meeting minutes and press releases) given to Directors in connection with such meetings at the same time such materials and information are given to the Directors. If the Board of Directors proposes to take any action by written consent in lieu of a meeting of the Board of Directors or of any committee thereof, the Company will give written notice thereof to each such Party who has the right to designate a director under this Agreement prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company will reimburse each Party that has observer rights under this Section 3.2(b) for all reasonable expenses incurred by such Party's representatives in connection with attending meetings of the Board of Directors and committees thereof.
Appears in 1 contract
Composition of the Board of Directors. (ia) WELLC shallOn and after the date hereof, on behalf the Board of Directors shall initially be comprised of seven Directors [,subject to expansion after the WELLC Parties, vote all shares of Common Stock owned or controlled date hereof by them, and shall take all necessary action within its control, (ii) ERI shall, on behalf of the ERI Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary actions within its control and (iii) the Belfer Group shall, on behalf of the Belfer Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its control, in each case, so that the composition of the Board of Directors].
(b) The Shareholders acknowledge that Article VII of the Company's Certificate of Incorporation provides for staggered terms of the Directors, with Directors and serving in Class I, Class II, or Class III. The Shareholders agree that until the manner first annual meeting of selecting members thereof shareholders following the date hereof, the Board of Directors shall be composed as follows:
(ai) The Class I - Toni Hippeli and Michael Shanahan
(ii) Class II - Christo▇▇▇▇ ▇▇▇▇▇ ▇nd Jo▇▇▇▇ ▇▇▇▇▇▇▇
(iii) Class III - Lar▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ Agar▇▇▇ ▇▇▇ ▇▇▇▇▇ Skelsey
(c) From and aft▇▇ ▇▇e date her▇▇▇, ▇▇▇▇▇▇▇▇s sha▇▇ ▇▇ ▇▇▇▇▇▇▇ed as follows (it being understood that such nomination shall include any nomination of any incumbent Director for reelection to the Board of Directors shall be comprised of eleven Directors):
(11i) Directors (two of whom shall be Independent Directors) divided into three classes, with Directors in each class having a three-year term following a transition period in which the initial Class 1 Directors serve a one-year term, the initial Class 2 Directors serve a two-year term and the initial Class 3 Directors serve a three-year term. WELLC and ERI shall each have the right to designate one (1) Director to Class 3, one (1) Director to Class 2 and one (1) Director to Class 1 and the Belfer Group TTC shall have the right to designate one (1) Director to in Class 3 and one (1) Director to Class 1; provided, that the initial membership II of the Board of Directors at (it being understood that Christopher Mahan is TTC's initial designee as set fo▇▇▇ ▇▇ ▇▇▇▇▇▇ (▇) above);
(ii) TFP shall have the Effective Time and right to designate one Director, in any class, to the class to which each director nominee shall belong shall be Board of Directors (it being understood that Larry Tanning is TFP's initial designee as set forth ▇▇ ▇▇ause (b) above);
(iii) WinSoft shall have the right to designate one Director, in Exhibit 2.3 any class, to the Board of Directors (it being understood that Bipin Agarwal is WinSoft's initial designee as set fo▇▇▇ ▇▇ ▇▇▇▇▇▇ (b) above);
(d) If there are insufficient vacancies in a particular class of directors, the Merger Agreement. available positions shall be allocated first to the nominee of TTC (as to Class II only), second to the nominee of TFP, and third to the nominee of WinSoft (it being understood that each of TTC, TFP and WinSoft shall not have the right to have more than one nominee on the Board of Directors at any time).
(e) Each of WELLCTTC, ERI TFP and the Belfer GroupWinSoft, respectively, shall have the right (i) subject to applicable law, to remove, with or without cause, any Director nominated in accordance with this Section 3.2 by WELLCeach of TTC, ERI TFP or the Belfer GroupWinsoft, respectively, and (ii) to designate any replacement for a Director nominated in accordance with this Section 3.2 by WELLCTTC, ERI TFP or the Belfer GroupWinsoft, respectively, (including the initial designees during the period prior to the first annual meeting of shareholders following the date hereof) upon the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors shall duly appoint as a Director each person so designated to fill a vacancy on the Board of Directors. Notwithstanding the foregoing:
(i) if either the WELLC Parties or the ERI Parties own less than 18% of the Company's then outstanding Common Stock, then WELLC or ERI, as the case may be, shall have the right to designate only: (x) one (1) Director to the class of Directors having the then longest remaining term; and (y) one (1) Director to the class of Directors having the next longest remaining term; provided that in either case, if necessary to put one or more of a Party's Director designees into such classes, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees;
(ii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 8% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall have the right to designate only one (1) Director to the class of Directors having the then longest remaining term; provided that if necessary to put a Party's Director designee into such class, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; and
(iii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 5% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall not have the right to designate any Directors.
(b) For so long as any Party has the right to designate a Director under this Agreement, the Company will give such Party written notice of each regularly scheduled meeting of its Board of Directors as far in advance as such notice is required to be delivered to the Directors (and at least three business days prior to the date of each special meeting of the Board of Directors), and the Board of Directors will permit up to two (2) representatives of each such Party to attend as observers of all meetings of the Board of Directors (including any meetings of committees thereof); provided that in the case of telephonic meetings conducted in accordance with the Company's bylaws and applicable law, each such Party's representatives will be given the opportunity to listen to such telephonic meetings. Each representative will be entitled to receive all written materials and other information (including, without limitation, copies of meeting minutes and press releases) given to Directors in connection with such meetings at the same time such materials and information are given to the Directors. If the Board of Directors proposes to take any action by written consent in lieu of a meeting of the Board of Directors or of any committee thereof, the Company will give written notice thereof to each such Party who has the right to designate a director under this Agreement prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company will reimburse each Party that has observer rights under this Section 3.2(b) for all reasonable expenses incurred by such Party's representatives in connection with attending meetings of the Board of Directors and committees thereof.
Appears in 1 contract
Composition of the Board of Directors. (i) WELLC shallFollowing the Closing, on behalf of the WELLC Parties, vote all shares of Common Stock owned for so long as a Sponsor is entitled to appoint directors pursuant to clauses (c) or controlled by them(d) below, and subject to Section 3.2(g), the Sponsors and the Company shall take all necessary action within its controlNecessary Action to cause the Board of Directors to be comprised of seven (7) directors, (iiA) ERI shallfour (4) of whom have initially been designated by Tema (▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, on behalf of the ERI Parties▇▇▇▇ ▇▇▇▇▇, vote all shares of Common Stock owned or controlled by them▇. ▇. (▇▇▇▇) ▇▇▇▇▇▇▇▇, and shall take all necessary actions one more individual to be designated by Tema within its control and (iiitwo weeks following the execution of this Agreement) the Belfer Group shall, on behalf of the Belfer Parties, vote all shares of Common Stock owned or controlled by them, and shall take all necessary action within its controlthereafter be designated pursuant to Section 3.2(c) (each, in each casea “Tema Director”), so provided that the composition (i) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall initially serve as Lead Director of the Board of Directors and the manner of selecting members thereof shall be as follows:
(a) The Board of Directors shall be comprised of eleven (11) Directors (two of whom shall be Independent Directors) divided into three classes, with Directors in each class having a three-year term following a transition period in which the initial Class 1 Directors serve a one-year term, the initial Class 2 Directors serve a two-year term and the initial Class 3 Directors serve a three-year term. WELLC and ERI shall each have the right to designate one (1) Director to Class 3, one (1) Director to Class 2 and one (1) Director to Class 1 and the Belfer Group Tema shall have the right to designate his replacement as Lead Director (provided that any such replacement shall be independent under the rules of the national securities exchange on which the Company’s Class A Common Stock is then listed), (ii) one (1) Director of the Tema Directors shall be ▇. ▇. (▇▇▇▇) ▇▇▇▇▇▇▇▇ for so long as he remains a director, and (iii) two (2) of whom shall be Unaffiliated Directors and (B) two (2) of whom have initially been designated by KLRE Sponsor (▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇) and shall thereafter be designated pursuant to Class 3 and one Section 3.2(d) of this Agreement (1) Director to Class 1; providedeach, a “KLRE Sponsor Director”), provided that the initial membership ▇▇▇▇ ▇. ▇▇▇▇▇ shall serve as Chairman of the Board of Directors at the Effective Time and the class to which each director nominee shall belong shall be for so long as set forth in Exhibit 2.3 of the Merger Agreement. Each of WELLC, ERI and the Belfer Group, respectively, shall have the right (i) subject to applicable law, to remove, with or without cause, any Director nominated in accordance with this Section 3.2 by WELLC, ERI or the Belfer Group, respectively, and he remains a director.
(ii) Following the Closing, for so long as Anchorage is entitled to designate any replacement for a Director nominated in accordance with this appoint directors pursuant to clause (e) below, and subject to Section 3.2 by WELLC3.2(g), ERI or Anchorage and the Belfer Group, respectively, upon Company shall take all Necessary Action to cause the death, resignation, retirement, disqualification or removal from office of such Director. The Board of Directors to include one (1) individual reasonably acceptable to the Company to be designated by Anchorage within two weeks following the execution of this Agreement, and shall duly appoint thereafter be designated pursuant to Section 3.2(e) of this Agreement (an “Anchorage Director”), who shall be an Unaffiliated Director.
(iii) If as a Director each person so designated to fill a vacancy result of the provisions of Section 3.2(c), Section 3.2(d), or Section 3.2(e) there are seats on the Board of Directors. Notwithstanding the foregoing:
(i) if either the WELLC Parties Directors for which none of Tema, KLRE Sponsor or the ERI Parties own less than 18% of the Company's then outstanding Common Stock, then WELLC or ERI, as the case may be, shall have the right to designate only: (x) one (1) Director to the class of Directors having the then longest remaining term; and (y) one (1) Director to the class of Directors having the next longest remaining term; provided that in either case, if necessary to put one or more of a Party's Director designees into such classes, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees;
(ii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 8% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall have the right to designate only one (1) Director to the class of Directors having the then longest remaining term; provided that if necessary to put a Party's Director designee into such class, the Company and the other Parties shall cooperate as necessary to effect such designation; provided, further, that the right to change such classes may only be exercised in connection with the reduction in the number of the Party's Director designees; and
(iii) if either the WELLC Parties, the ERI Parties or the Belfer Parties own less than 5% of the Company's then outstanding Common Stock, then WELLC, ERI or the Belfer Group, as the case may be, shall not have the right to designate any Directors.
(b) For so long as any Party Anchorage has the right to designate a Director under this Agreementdirector, the Company will give selection of such Party written notice director shall be conducted in accordance with applicable law and with the Company’s Certificate of each regularly scheduled meeting of its Board of Directors as far in advance as such notice is required Incorporation, bylaws and other corporate governance documents.
(iv) In the event that the Proposed Charter Amendment to be delivered to the Directors (and at least three business days prior to the date of each special meeting of the Board of Directors), and divide the Board of Directors will permit up into three classes is not approved in connection with the Business Combination (the “Staggered Board Amendment”), then following the Closing, the Sponsors and the Company shall take all Necessary Action to cause the foregoing directors to be divided into the two (2) representatives existing classes of directors, each such Party to attend of which directors shall serve for staggered two (2) year terms as observers of all meetings of follows:
(A) the Board of class I directors shall include: two (2) Tema Directors (including any meetings of committees thereof)the Unaffiliated Director designated by Tema) and one (1) KLRE Sponsor Director; provided and
(B) the class II directors shall include: two (2) Tema Directors, and one (1) KLRE Sponsor Director and an Unaffiliated Director.
(v) In the event that the Staggered Board Amendment is approved in connection with the case of telephonic meetings conducted Business Combination or at a subsequent shareholder meeting called in accordance with Section 3.2(a), upon the effectiveness of the Staggered Board Amendment and following the Closing, the Sponsors and the Company shall take all Necessary Action to cause the foregoing directors to be divided into three classes of directors, each of which directors shall serve for staggered three (3) year-terms as follows:
(A) the class I directors shall include: one (1) KLRE Sponsor Director and one (1) Tema Director;
(B) the class II directors shall include: one (1) Tema Director and an Unaffiliated Director; and
(C) the class III directors shall include: two (2) Tema Directors (including the Unaffiliated Director designated by TEMA) and one (1) KLRE Sponsor Director. The initial term of the class I directors shall expire immediately following the Company's bylaws and applicable law, each such Party's representatives will be given the opportunity to listen to such telephonic meetings. Each representative will be entitled to receive all written materials and other information (including, without limitation, copies of meeting minutes and press releases) given to Directors in connection with such meetings at the same time such materials and information are given to the Directors. If the Board of Directors proposes to take any action by written consent in lieu of a ’s 2018 annual meeting of the Board of Directors or of any committee thereof, the Company will give written notice thereof to each such Party who has the right to designate a director under this Agreement prior to the effective date of such consent describing in reasonable detail the nature and substance of such actionstockholders at which directors are elected. The Company will reimburse each Party that has observer rights under this Section 3.2(b) for all reasonable expenses incurred by such Party's representatives in connection with attending meetings initial term of the Board class II directors shall expire immediately following the Company’s 2019 annual meeting of Directors and committees thereofstockholders at which directors are elected. The initial term of the class III directors, if any, shall expire immediately following the Company’s 2020 annual meeting at which directors are elected.
Appears in 1 contract
Sources: Shareholders’ and Registration Rights Agreement (KLR Energy Acquisition Corp.)