Composition of the Board. (a) From and after the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee). (b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”. (c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation. (d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018. (e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors. (f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 3 contracts
Sources: Shareholder Agreement, Shareholder Agreement (Sun Wise (UK) Co., LTD), Shareholder Agreement (SeaWorld Entertainment, Inc.)
Composition of the Board. (a) From and after Following the Closing, subject to consummation of the terms and conditions of this Article IIFirst Public Offering, the ZHG Designator Board shall have the right (but not the obligation) to designateconsist of seven directors, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, whom:
(i) three directors (at least one of whom must be an Independent Director upon and following the 90th day following consummation of the First Public Offering) will be designated by the Quadrangle Entities; which number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1x) Director if, at any time, two directors (none of whom must be an Independent Director) if the aggregate Total Share Aggregate Ownership of the ZHG Quadrangle Entities is less than twenty percent 20% but equal to or greater than 10%, (20%y) of the total number of shares of Common Stock outstanding, and one director (ii) the ZHG Designator shall who need not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(aan Independent Director) if, at any time, (A) if the aggregate Total Share Aggregate Ownership of the ZHG Quadrangle Entities is less than ten percent 10% but greater than or equal to 5% and (10%z) zero directors if the Aggregate Ownership of the total number Quadrangle Entities is less than 5%;
(ii) three directors (at least one of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall whom must be an Independent ZHG Designee, unless otherwise determined Director upon and following consummation of the First Public Offering) will be designated by the CVC Entities; which number shall be reduced to (x) two directors (none of whom must be an Independent Director) if the Aggregate Ownership of the CVC Entities is less than 20% but equal to or greater than 10%, (y) one director (who need not be an Independent Director) if the Aggregate Ownership of the CVC Entities is less than 10% but greater than or equal to 5% and (z) zero directors if the Aggregate Ownership of the Quadrangle Entities is less than 5%; and
(iii) one director will be the chief executive officer of the Company for so long as he or she is employed by the Company. Prior to the first anniversary of the First Public Offering (or earlier if requested by CVC Equity), the Board (excluding any ZHG Designee)shall be expanded to eight members to include an additional Independent Director designated jointly by the Quadrangle Entities and the CVC Entities.
(b) If at any time Each Shareholder entitled to vote for the ZHG Designator has designated fewer than election of directors to the total number Board agrees that it will vote its Company Common Shares or execute written consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of individuals Shareholders) in order to ensure that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction composition of the Board or any duly-authorized committee thereof for election is as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to set forth in this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”2.01.
(c) In The Company agrees to cause each individual designated pursuant to Section 2.01(a) or 2.03 to be nominated to serve as a director on the event that Board, and to take all other necessary actions (including calling a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction special meeting of the Board or any duly-authorized committee thereof and/or shareholders) to fill such vacancy shall be, and ensure that the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee composition of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same is as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign set forth in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors2.01.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 3 contracts
Sources: Shareholder Agreement, Shareholders Agreement (Ntelos Holdings Corp), Shareholders Agreement (Ntelos Holdings Corp)
Composition of the Board. (a) From and after For so long as the ClosingPercentage Interest held by the Carrier Holders, subject to in the terms and conditions of this Article IIaggregate, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or is at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than least twenty percent (20%) (the “Carrier Scale-Down Percentage Interest”) and the Percentage Interest held by the Watsco Holders, in the aggregate, is at least fifty percent (50%) (the “Watsco Scale-Down Percentage Interest”), the Board shall be composed of five (5) Directors, of whom two (2) Directors shall be designated by the Carrier Deciding Member and three (3) Directors shall be designated by the Watsco Deciding Member. Notwithstanding the forgoing, the number of Directors constituting the entire Board may be increased or decreased beyond the number set forth above from time to time by Approval of the total Board, subject to Section 6.3; provided, that, so long as the Percentage Interest of the Carrier Holders is equal to or greater than the Carrier Scale-Down Percentage Interest, in the case of any increase or decrease in the number of shares Directors constituting the entire Board, the composition of Common Stock outstandingthe Board shall be adjusted to provide the Carrier Deciding Member with the right to designate the whole number (rounding up) of Directors that is closest to forty percent (40%) of the entire Board.
(b) Following such time as the Percentage Interest held by the Carrier Holders is less than the Carrier Scale-Down Percentage Interest, the number of Directors designated by the Carrier Deciding Member shall be reduced to the whole number (rounding up) of Directors that is closest to the product of (i) the Percentage Interest held by the Carrier Holders at such time and (ii) the ZHG Designator shall not be entitled number of Directors constituting the entire Board. Any Directors with respect to designate any individuals to serve as Directors whom the Carrier Deciding Member’s designation rights are terminated pursuant to this Section 2.1(a) if4.2(b), at any time, (A) shall be removed from the aggregate Total Share Ownership Board as of the ZHG Entities is less than ten percent (10%) date of such termination of such designation rights. In such event, the total number replacements of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee removed Directors shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction Approval of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”Members.
(c) In Following such time as the event that a vacancy is created at any time Percentage Interest held by the deathWatsco Holders is less than the Watsco Scale-Down Percentage Interest, disability, retirement, removal or resignation the Watsco Deciding Member shall only be entitled to designate the whole number (rounding up) of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, Directors that is closest to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number product of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) the Percentage Interest held by the Watsco Holders at such appointments shall occur immediately after such annual meeting, time and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class number of Directors up for election at constituting the Companyentire Board. Any Directors with respect to whom the Watsco Deciding Member’s annual meeting of stockholders for 2018.
(e) For any designation rights are terminated pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d4.2(c), in connection with an election shall be removed from the Board as of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of such termination of such designation rights. In such event, the meeting replacements of stockholders such removed Directors shall be determined by the Approval of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsMembers.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 2 contracts
Sources: Operating Agreement (Watsco Inc), Operating Agreement (Watsco Inc)
Composition of the Board. (a) Pursuant to the Securities Purchase Agreement and in each case effective as of the Closing:
(i) the Board shall take all necessary corporate action to increase the Total Number of Directors to ten (10), comprised of two (2) Initial Investor Designees, up to seven (7) Company Designees and the Company’s chief executive officer; and
(ii) the Company shall take all necessary corporate action to appoint the Initial Investor Designees to the Board.
(b) From and after the ClosingClosing until the Sunset Date, subject to the terms and conditions of this Article II, the ZHG Designator Investor shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, up to two (2) individuals that meet the Designee Qualifications to serve as DirectorsDirectors (each such individual whom Investor shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as an “Investor Designee”). Notwithstanding the foregoing provisions of this Section 2.1(a2.1(b), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator Investor shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a2.1(b) shall be reduced adjusted, as applicable, immediately after any Transfer of Equity Securities of the Company by an Investor Entity and otherwise at each record date established by the Board with respect to one (1) Director ifany meeting of stockholders of the Company involving the election of Directors, to a number equal to the Percentage Interest of the Investor Entities multiplied by the Total Number of Directors at any such time, rounded up to the aggregate Total Share Ownership of nearest whole number; provided, that, (i) the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, Investor Designees shall not exceed two (2) individuals and (ii) on and after the ZHG Designator shall not be entitled to designate Sunset Date, or the earlier date on which any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Investor Entity intentionally breaches Article III, Section 4.1, 4.1 or Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty ten (3010) day Business Day opportunity to cure. cure or fails to satisfy its obligations to consummate the First Subsequent Closing or Second Subsequent Closing in accordance with the Securities Purchase Agreement, the Investor shall not be entitled to designate any individuals to serve as Directors, and no Investor Designee shall be entitled to serve as Director, in each case pursuant to this Agreement.
(c) From and after the date on which either Closing until the Sunset Date, the chief executive officer of the Initial ZHG Designees ceases Company shall be entitled to serve be nominated by the Board for election as a DirectorDirector (except as otherwise determined by the approval of a majority of the independent directors, not more including a majority of the Independent Company Designees entitled to vote on such matter) (such Person, the “CEO Designee”).
(d) From and after the Closing until the Sunset Date, the Independent Company Designees shall have the exclusive right to nominate persons on behalf of the Board for election at annual stockholders meetings for, or to fill vacancies in, all Director positions, other than one ZHG Designee (i) the Investor Designees and (ii) the CEO Designee; provided, that, at any time may be an Affiliated ZHG Designeeall times, and any other ZHG Designee the Company Designees shall be an Independent ZHG DesigneeCompany Designees, unless otherwise determined by the Board (excluding any ZHG Designeeincluding, for so long as the Percentage Interest of the Investor Entities is at least 25%, at least a majority of the Investor Designees entitled to vote on such matter).
(be) If at any time the ZHG Designator Investor has designated fewer than the total number of individuals that the ZHG Designator Investor is then entitled to designate pursuant to Section 2.1(a2.1(b), the ZHG Designator Investor shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator Investor is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its reasonable best efforts to (xi) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (yii) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(cf) In Subject to Section 2.3, in the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Investor Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator Investor who meets the Designee Qualifications, and the Company and the Board shall takeuse reasonable best efforts, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(eg) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator Investor shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing DirectorsDirectors or if later, prior to the 10th day after the public announcement of the meeting date. So long as an individual designated by the ZHG Designator Investor pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(fh) The Company shall at all times provide each ZHG Investor Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors. Each Investor Designee shall be entitled to receive from the Company and its Subsidiaries, if applicable, the same insurance coverage in connection with his or her service as a member of the Board or any committee thereof as is provided to other Directors. Such insurance coverage shall be provided through customary director and officer indemnity insurance on commercially reasonable terms. The Company shall at all times provide each Investor Designee with compensation, benefits and reimbursement (including of travel expenses) that it provides to the Company Designees.
(i) From the date hereof until the Sunset Date, Investor may designate one (1) individual as an observer (the “Observer”) to attend each meeting of the Board and its committees in a non-voting capacity, subject to such individual’s prior execution and delivery to the Company of a customary confidentiality agreement in the form attached hereto as Exhibit C (as it may be reasonably modified from time to time by the Nominating and Corporate Governance Committee) and except when such attendance would present an actual or potential conflict of interest (in the good faith determination of the Board or any committee thereof, as applicable).
Appears in 2 contracts
Sources: Shareholder Agreement (GNC Holdings, Inc.), Shareholder Agreements (GNC Holdings, Inc.)
Composition of the Board. (a) From and after the Closing, subject Subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions succeeding sentences of this Section 2.1(a)2.01(a) and Sections 2.02 and 2.03, but subject to the proviso set forth in Section 2.6Board shall consist of five (5) directors, comprised of: (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(atwo directors designated by Capital Z; (ii) shall be reduced to one (1) Director ifdirector, at any time, who shall be the aggregate Total Share Ownership Chief Executive Officer of the ZHG Entities is less than twenty percent Company; (20%iii) of the total number of shares of Common Stock outstanding, one (1) director designated by Corsair and (iiiv) one director designated by Northwestern to the ZHG Designator shall not be entitled extent that Northwestern notifies the Company within thirty (30) days after the date hereof of its election to designate any individuals a director; provided, however, that in the event that Northwestern either fails to serve as Directors pursuant notify the Company of its election to this Section 2.1(adesignate a director within such thirty (30) ifday period or notifies the Company of its decision to not designate a director, at any timethen the remaining director shall be appointed by the Board. Notwithstanding the foregoing, (A) the aggregate Total Share Ownership of the ZHG Entities is at such time that Capital Z holds less than ten percent (10%) of the total number of shares of Common Stock outstanding or its Issued Preferred Stock, Capital Z shall be entitled to designate one (1) director, (B) at such time that Capital Z holds less than five percent (5%) of its Issued Preferred Stock, Capital Z shall no longer be entitled to designate a director, (C) at such time that Corsair holds less than five percent (5%) of its Issued Preferred Stock, Corsair shall no longer be entitled to designate a director, (D) at such time that Northwestern holds less than five percent (5%) of its Issued Preferred Stock, Northwestern shall no longer be entitled to designate a director and (E) at such time that any ZHG Entity breaches Article IIIof Capital Z, Section 4.1Corsair or Northwestern becomes a Defaulting Investor, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in such Defaulting Investor shall no longer be entitled to designate any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee)directors.
(b) If Each Stockholder agrees that, if at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator he, she or it is then entitled to designate pursuant vote for the election of directors to Section 2.1(a)the Board, he, she or it shall vote all of his, her or its Company Securities that are entitled to vote or execute proxies or written consents, as the ZHG Designator shall have case may be, and take all other necessary action (including causing the right (but not the obligationCompany to call a special meeting of stockholders) in order to designate such number of additional individuals who meet the Designee Qualifications ensure that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction composition of the Board or any duly-authorized committee thereof for election is as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to set forth in this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”2.01.
(c) In The Company agrees to cause each individual designated pursuant to Section 2.01(a) or 2.03 to be nominated to serve as a director on the event that Board and to take all other necessary actions (including calling a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction special meeting of the Board or any duly-authorized committee thereof and/or stockholders) to fill such vacancy shall be, and ensure that the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee composition of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same is as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign set forth in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors2.01.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 2 contracts
Sources: Stockholders' Agreement (Corsair Capital LLC), Stockholders Agreement (NewStar Financial, Inc.)
Composition of the Board. (ai) From Subject to Section 17(a)(iv) below, two directors of the Board (each, a “Director”) shall be individuals designated in writing to the Company by MDLZ (each, a “MDLZ Designee”), which individuals shall at all times be executive officers of Mondelēz International and after shall initially be the ClosingChairman and Chief Executive Officer and the Executive Vice President and General Counsel of Mondelēz International.
(ii) Upon the resignation, retirement or other removal of any MDLZ Designee, MDLZ shall be entitled, subject to the terms and conditions of this Article IISection 17(a)(iv) below, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled promptly to designate a replacement MDLZ Designee to serve as Directors pursuant to this Section 2.1(abecome a Director.
(iii) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership Each of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company Holders shall use its reasonable best efforts to cause such vacancy give effect to Section 17(a)(i); in particular, (A) each Holder shall procure that the directors of the Board nominated by it shall vote in favor of appointing each MDLZ Designee and against the removal of any MDLZ Designee at each relevant meeting of the Board or of any committee of the Board, (B) the Company shall ensure that each MDLZ Designee is proposed to serve as a Director at each annual or special meeting of the Company at which directors are to be filled byelected, (C) each Holder shall procure that the directors of the Board nominated by it shall recommend that the Company’s stockholders vote in favor of appointing each MDLZ Designee and against the removal of any MDLZ Designee, (D) each Holder shall vote all the stock that it holds or controls (and shall procure that each of its Affiliates votes all stock that it holds or controls) in favor of appointing each MDLZ Designee as a Director and against the removal of any MDLZ Designee as a Director, and (E) no Holder (other than MDLZ) shall take any action to remove, or oppose the appointment of, a new designee of the ZHG Designator who meets the MDLZ Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationa Director.
(div) The Company If MDLZ and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no Affiliates beneficially own less than ninety (90) days prior to the date of the meeting of stockholders 8% of the Company called for Shares, then MDLZ shall promptly cause one of such MDLZ Designees to resign and the purpose number of electing DirectorsMDLZ Designees permissible hereunder shall be permanently reduced to one. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, If MDLZ and its Affiliates beneficially own less than 5% of the Company shallShares, then MDLZ shall promptly cause a second MDLZ Designee to resign and the fullest extent permitted by Law, include such individual in the slate number of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts MDLZ Designees permissible hereunder shall be permanently reduced to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directorszero.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 2 contracts
Sources: Investor Rights Agreement (Mondelez International, Inc.), Investor Rights Agreement (Keurig Dr Pepper Inc.)
Composition of the Board. (a) From and after the Closing, subject Subject to the terms and conditions of this Article II, from and after the ZHG Designator Closing, until the date that the Share Ownership Percentage of the NLI Parties is less than 5% (the “Sunset Date”), NLI shall have the right (but not the obligation) to designate, designate (and the individuals nominated for election as Directors by or at the direction of the Board or a duly-duly authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the a number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant equal to this Section 2.1(a) if, at any time, (A) the aggregate product of the Total Number of Directors multiplied by the Share Ownership Percentage of the ZHG Entities is less than ten percent (10%) of the total NLI Parties, with such number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement Directors rounded down to the nearest whole number (the “Material TermsDesignation Right”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) In the event that the Board determines in good faith, after consultation with outside counsel, that the nomination of any such individual designated by NLI would be inconsistent with the Board’s fiduciary duty under Applicable Law or with the rules and regulations of the Exchange, NLI shall have the right (but not the obligation) to designate any other individual that would not result in such determination.
(c) If at any time the ZHG Designator NLI has designated fewer than the total number of individuals that the ZHG Designator NLI is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator NLI shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator NLI is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-duly authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to shall, unless the Board determines in good faith, after consultation with outside counsel, that such recommendation, support, or other action would be inconsistent with the Board’s fiduciary duty under Applicable Law, take all Necessary Action to:
(xi) effect the election or appointment of such additional designees, whether by increasing the size of the Board or otherwise, and ; and
(yii) cause the election or appointment of such additional designees to fill any such newly-newly created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator NLI shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected or appointed as a Director shall be referred to herein as a “ZHG NLI Designee”.
(cd) If at any time the number of NLI Designees is greater than permitted by NLI’s Share Ownership Percentage pursuant to Section 2.1(a), NLI shall cause one or more of its NLI Designees to resign from the Board within 60 days of the date on which its Share Ownership Percentage decreased below the level necessary to maintain such NLI Designees.
(e) Each of the NLI Designees shall be entitled to receive compensation as Directors from the Company, but only if he/she (i) is not an employee of NLI or otherwise compensated by NLI in connection with his/her position as NLI Designee and (ii) is determined by the Board to be independent under Applicable Law and the rules and regulations of the Exchange.
(f) The Company may terminate the Designation Right by written notice to NLI within 30 Business Days if (i) the parties to this Agreement agree in writing to terminate the Designation Right, (ii) the exercise of the Designation Right by NLI or participation by the NLI Designee on the Board is prohibited by Applicable Law or (iii) NLI commits a willful and material breach of this Agreement, which willful and material breach is not cured within 60 days after NLI’s receipt of a written notice in respect thereof from the Company, provided that prior to any termination of the Designation Right pursuant to this Section 2.1(f), an executive officer of the Company shall discuss such termination of the Designation Right with an executive officer of NLI and consider in good faith whether there are available alternatives or remedies to avoid terminating the Designation Right.
(g) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG NLI Designee, any individual nominated or appointed by or at the direction of the Board or any duly-duly authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee QualificationsNLI, and the Company and the Board shall take, to the fullest extent permitted by LawApplicable Law and the rules and regulations of the Exchange, at any time and from time to time, all actions necessary Necessary Action to accomplish the same cause such vacancy to be filled by such designee of NLI, as soon promptly as possible practicable following such designation, unless the Board determines in good faith, after consultation with outside counsel, that such determination to fill such vacancy would be inconsistent with the Board’s fiduciary duty under Applicable Law.
(dh) The Company and the Board shall take, to the fullest extent permitted by LawApplicable Law and the rules and regulations of the Exchange, all actions necessary, including increasing the Total Number of Directors, Necessary Action to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) individuals designated by NLI pursuant to the Designation Right to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, provided that if the Closing occurs Board determines in good faith, after mailing consultation with outside counsel, that the appointment of any such designee would be inconsistent with the Board’s fiduciary duty under Applicable Law or with the rules and regulations of the Company’s proxy statement relating Exchange, the Board shall not be required to its annual meeting of stockholders for 2017, appoint such designee but NLI shall have the right (ibut not the obligation) to designate any other individual that would not result in such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018determination.
(ei) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator NLI shall identify its designees by written notice to the Company no less than ninety (90) 120 days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors and such NLI Designees shall complete a customary director and officer questionnaire, in the same form provided to all other Directors, by the date required of all other Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the The Company shall, to the fullest extent permitted by LawApplicable Law and the rules and regulations of the Exchange, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its commercially reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, andin each case, if necessaryunless the Board determines in good faith, increasing after consultation with outside counsel, that such recommendation and support would be inconsistent with the Total Number Board’s fiduciary duty under Applicable Law. To the fullest extent permitted by Applicable Law, each NLI Designee shall be required to recuse himself or herself from the deliberations and vote on any matter on which NLI or such NLI Designee has a material conflict of Directorsinterest or as otherwise required by Applicable Law or the rules and regulations of the Exchange, as determined after consultation with NLI and upon the advice of outside counsel to the Company or the Board.
(fj) The Company NLI Designee shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights be entitled to indemnification, advancement of expenses and exculpation from the Company and to be insured under the director and officer insurance policy of the Company, to the same extent as the other members of the Board (in their capacities as Directors) pursuant to the Company Charter and bylaws of the Company.
(k) As a condition to the Company’s obligations under this Section 2.1 with respect to persons designated for nomination, appointment, or election by NLI, each NLI Designee will agree in writing:
(i) during the term of any service as a Director to comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee members of the Company, including, without limitation, the Company’s code of conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy, Regulation FD policy, related person transactions policy and corporate governance guidelines, in each case as previously approved by the Board and as amended from time to time; and
(ii) to keep confidential and not publicly disclose discussions and matters considered in meetings of the Board and its committees or other confidential information of the Company that it provides the NLI Designee receives from the Company, in accordance with and subject to other Directorsthe terms of a confidentiality agreement in the form attached hereto as Schedule C (the “Confidentiality Agreement”). The Confidentiality Agreement shall be executed by NLI, the Company and the applicable NLI Designees and delivered concurrently with the Closing.
Appears in 2 contracts
Sources: Shareholder Agreement (Corebridge Financial, Inc.), Stock Purchase Agreement (Corebridge Financial, Inc.)
Composition of the Board. (a) From and after Following the Closing, subject BlackRock and ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall each use its best efforts to cause the election at each meeting of stockholders of BlackRock of such nominees reasonably acceptable to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals such that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) there are no more than 19 Directors; (ii) there are not less than two and not more than four Directors who are members of BlackRock management (each a “Management Designee”); (iii) there are two Directors, each in a different class, who are individuals designated in writing to BlackRock by ▇▇▇▇▇▇▇ ▇▇▇▇▇ (each, a “▇▇▇▇▇▇▇ ▇▇▇▇▇ Designee”); provided, however, that if for any period greater than 90 consecutive days ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its Affiliates shall Beneficially Own less than 10% of the BlackRock Capital Stock issued and outstanding, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall promptly cause one of such ▇▇▇▇▇▇▇ ▇▇▇▇▇ Designees to resign and the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Designees permissible hereunder shall be reduced to one (1) Director ifand; provided, at further, that if for any time, the aggregate Total Share Ownership period greater than 90 consecutive days ▇▇▇▇▇▇▇ ▇▇▇▇▇ and its Affiliates shall Beneficially Own less than 5% of the ZHG Entities BlackRock Capital Stock issued and outstanding, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall promptly cause a second ▇▇▇▇▇▇▇ ▇▇▇▇▇ Designee to resign and the number of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Designees permissible hereunder shall be reduced to zero; (iv) there are no more than two Directors, each in a different class, who are individuals designated in writing to BlackRock by a Person who is less than twenty percent (20%) a Significant Stockholder and has held such status since prior to the date of the total number of shares of Common Stock outstandingTransaction Agreement (each, a “Significant Stockholder Designee”); (v) there are no more than two Directors, each in a different class, who are individuals designated in writing to BlackRock by Barclays Bank PLC; and (iivi) the ZHG Designator shall not be entitled to designate any individuals to serve as remaining Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an are Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee)Directors.
(b) If at any time Following the ZHG Designator has designated fewer than Closing, upon the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a)resignation, the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by retirement or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation from office of any ZHG Designee, any individual nominated Management Designee or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇ ▇▇▇▇▇ Designee (i) BlackRock or ▇▇▇▇▇▇▇ ▇▇▇▇▇, as the case may be, shall be entitled promptly to designate a replacement Management Designee or ▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ (togetherDesignee, as the “Initial ZHG Designees”) to be appointed case may be, who meets the qualifications of a Director and is reasonably acceptable to the Board immediately after the Closing, with and (xii) BlackRock and ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and each use its reasonable best efforts to cause the appointment or election of such individual to the Board, including nominating such individual to be elected replacement designee as a Director as provided herein, recommending such individual’s election, soliciting proxies by the other Directors or consents in favor thereof, and, if necessary, increasing by the Total Number stockholders of DirectorsBlackRock.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 2 contracts
Sources: Stockholder Agreement, Stockholder Agreement (BlackRock Inc.)
Composition of the Board. (a) From and after The Board shall consist of fourteen (14) or fifteen (15) directors which number shall be established from time to time by resolution of the ClosingBoard, subject to the terms and conditions of this Article II, the ZHG Designator which resolution shall in no event have the right (but not effect of terminating the obligation) to designate, and the individuals nominated for election as Directors by or at the direction term of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee)incumbent director.
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director Eight directors shall be referred to herein elected by the Industry Sectors as a “ZHG Designee”follows:
(i) Suppliers shall elect two (2) directors;
(ii) Transmission Companies shall elect two (2) directors;
(iii) RTOs shall select one (1) director;
(iv) Small LSEs shall elect one (1) director;
(v) Medium LSEs shall elect one (1) director; and
(vi) Large LSEs shall elect one (1) director.
(c) In the event that a vacancy is created at any time Three (3) directors shall be at-large. At-large directors shall be elected by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction all of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, Industry Sectors voting together as a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationsingle class.
(d) The Company and Three (3) directors, if the Board shall takeconsists of fourteen (14) directors, to the fullest extent permitted by Lawand four (4) directors, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to if the Board immediately after consists of fifteen (15) directors, shall be independent from the Closing, with (x) ▇▇Corporation and any Member or any Affiliate or Related Party of any Member. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing Independent directors shall be elected by all of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018Industry Sectors voting together as a single class.
(e) For any designation pursuant Industry Sectors shall elect their respective sector and at-large directors from among individuals holding senior management positions in Member organizations. Any sector-elected or at-large director whose Member organization changes Industry Sectors or who ceases to this Section 2.1 that occurs after hold a senior management position in a Member organization shall continue to serve out his or her remaining term, unless such director resigns or is removed. When selecting at-large directors, Industry Sectors shall consider such factors as the Closing, after the Company’s annual meeting of stockholders for 2017, geographic and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders functional representation of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date Board. No two directors may be employees of the meeting a single Member or any Affiliate or Related Party of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at a Member or any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsAffiliate.
(f) An independent director is a person (i) who is not an officer or employee of the Corporation, an officer, director, or employee of a Member, or an officer, director or employee of any entity that would reasonably be perceived as having a direct financial interest in the outcome the Board’s decisions, or (ii) who does not have a relationship that would interfere with the exercise of independent judgment in carry out the responsibilities of a director. The Company Board may adopt additional standards for director independence not inconsistent herewith.
(g) At-large and independent directors shall at all times provide each ZHG Designee (in his or her capacity as a member be nominated by the nominating and governance committee of the Board. The nominating and governance committee shall seek out for nomination independent directors from diverse backgrounds, who will contribute to the effective functioning of the Board and the Corporation by bringing a broad range of industry expertise, viewpoints, experiences, skill sets and knowledge. If an incumbent independent director is not re-nominated, the nominating and governance committee will use reasonable efforts to ensure that diverse candidates are in the pool of potential nominees for the open independent director position and may retain an independent consultant to identify individuals qualified and willing to serve as an independent director.
(h) with Any director which the same rights to indemnification, advancement full Board has determined has a conflict of expenses interest on any compliance or enforcement matter brought before the Board shall not vote on such matter and exculpation that it provides to other Directorsshall recuse himself or herself from all Board deliberations concerning such matter.
(i) There will be no alternates or proxies for directors.
Appears in 2 contracts
Sources: Delegation Agreement, Delegation Agreement
Composition of the Board. (a) From and after Effective as of the Closing, subject to the terms and conditions of this Article IIEffective Time, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as authorized number of Directors by or at the direction of comprising the Board or a duly-authorized committee thereof shall includeinitially be 10, two (2) individuals that meet divided into three classes as provided in the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a)Charter, but subject to the proviso set forth in Section 2.6, consisting of:
(i) three (3) individuals selected by the number Board prior to the filing date of individuals that the ZHG Designator definitive Proxy Statement (as such term is defined in the Merger Agreement) to occupy one seat in each of the three classes (the “C Co Directors”);
(ii) the individual then serving as the Chief Executive Officer of the Company, for so long as such individual holds such position (who shall be entitled a Class 2 Director);
(iii) four (4) individuals designated by F Co Parent prior to designate to serve as Directors pursuant to this Section 2.1(a) the expected filing date of the definitive Proxy Statement, one of whom shall be reduced to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ (the “F Co Parent Directors”), with ▇▇. ▇▇▇▇▇ and one (1) other F Co Parent Director ifto be Class 1 Directors, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent one (20%1) of the total number of shares of Common Stock outstandingF Co Parent Director to be a Class 2 Director, and one (ii1) the ZHG Designator shall not F Co Parent Director to be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(aa Class 3 Director;
(iv) ifone (1) individual designated by ▇▇▇▇▇▇ ▇. ▇▇▇ Parallel Fund V, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement L.P. (the “Material TermsTHL Director”) in ), (who shall be a Class 1 Director), who shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and who shall be such director so long as he is a principal of THL (or equivalent or higher ranking employee of THL), provided that any material respect and such breach continues after written notice from director replacing the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may initial THL Director shall always be an Affiliated ZHG Designeeindividual who is a principal of THL (or equivalent or higher ranking employee of THL); and
(v) one (1) individual designated by TPG Partners IV, and any other ZHG Designee L.P. (the “TPG Director”), (who shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(aa Class 3 Director), the ZHG Designator who shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall initially be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ who shall be such director so long as he is a principal of TPG (togetheror equivalent or higher ranking employee of TPG), provided that any director replacing the initial TPG Directors shall always be an individual who is a principal of TPG (or equivalent or higher ranking employee of TPG).
(b) The Company and F Co Parent shall each provide written notice to the other, not less than 5 Business Days prior to the expected filing date of the definitive Proxy Statement of the individuals who shall be designated as the initial three C Co Directors and the four F Co Parent Directors pursuant to Section 5.4(a), provided, however, that if either the Company or F Co Parent has not selected their respective nominees by such date, then notwithstanding the foregoing, the “Initial ZHG Designees”) to be appointed Company or F Co Parent, as the case may be, shall instead provide such notice at least 5 Business Days prior to the Board immediately after expected date of the ClosingClosing (or if such period of notice is not practicable under the circumstances because an individual who has been so designated is no longer available for such service, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed such prior notice as is practicable), and provided, further that designation of the initial C Co Directors shall be subject to the class prior written consent of Directors up for election at F Co Parent, which consent shall not be unreasonably withheld.
(c) Except as provided in Section 5.4(d), the Company’s annual meeting size and composition of stockholders for 2019 the Board may thereafter be changed as permitted by and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection accordance with applicable law and the Closing, Charter and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019Bylaws; provided, however, that if none of F Co Parent or its Affiliates shall vote its shares or otherwise act to remove any person serving as a C Co Director prior to expiration of such Director’s term other than for cause.
(d) Following the Closing occurs after mailing Effective Time, the Board shall include (i) the individual then serving as the Chief Executive Officer of the Company’s proxy statement relating to its annual meeting of stockholders , for 2017so long as such individual holds such position, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed the F Co Parent Directors, for so long as F Co Parent remains a party to this Agreement; (iii) the class THL Director, for so long as THL owns at least one-third (33%) of the Voting Securities held by it immediately after the Effective Time (subject to adjustment for stock splits, combinations and similar events); (iv) the TPG Director, for so long as TPG owns at least one-third (33%) of the Voting Securities held by it immediately after the Effective Time (subject to adjustment for stock splits, combinations and similar events); and (v) such number of Independent Directors up for election as is necessary to have in office at the Company’s annual meeting of stockholders for 2018all times not less than three (3) Independent Directors.
(e) For any designation pursuant Subject to this Section 2.1 that occurs after subsection (d) above and until such time as such Committees must be comprised entirely of Independent Directors in accordance with the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders listing standards of the CompanyNew York Stock Exchange, the ZHG Designator Compensation Committee of the Board shall identify its designees by written notice to include one of either the Company no less than ninety THL Director and the TPG Director. The THL Director and TPG Director shall rotate their position on the Compensation Committee each year.
(90f) days No party shall designate a Director (i) who has been removed for cause from the Board, (ii) has ever been convicted of a felony, or (iii) is or, within 10 years prior to the date of the meeting designation, has been subject to any permanent injunction for violation of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies federal or consents in favor thereof, and, if necessary, increasing the Total Number of Directorsstate securities law.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Sources: Shareholders Agreement (Certegy Inc)
Composition of the Board. 4.1.1. The Board shall comprise of a maximum of 3 (athree) From and after Directors, unless otherwise agreed by the Closing, subject Investor.
4.1.2. The Promoter shall be entitled to the terms and conditions of this Article II, the ZHG Designator shall have the right nominate 1 (but not the obligationone) to designate, and the individuals nominated for election as Directors by or at the direction of Director on the Board or a duly-authorized committee thereof shall include, two until the Promoter holds any Security (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a“Promoter Director”), but subject to the proviso set forth in Section 2.6, provided that (i) the number of individuals that the ZHG Designator Promoter shall be entitled to designate to serve remain on the Board so long as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership he is an employee of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, Company; and (ii) nomination of any individual, other than the ZHG Designator Promoter as Promoter Director will require Investor Consent.
4.1.3. The Investor shall be entitled to nominate 2 (two) Directors (each an “Investor Director(s)”) on the Board.
4.1.4. The Directors shall not be entitled required to designate hold any individuals to serve as Directors pursuant to this Section 2.1(a) ifqualification shares.
4.1.5. Till such time that the Promoter is the employee, at any time, (A) the aggregate Total Share Ownership Promoter shall be a whole- time Director and the Chief Executive Officer of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not authority and responsibility to run the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any dulyday-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, to-day management and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders operations of the Company, in accordance with the ZHG Designator Business Plan and this Agreement. Other than the Promoter, all other Directors shall identify its designees by written notice to be non-executive Directors and shall not be responsible for the Company no less than ninety (90) days prior to the date day-to-day management of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsCompany.
(f) 4.1.6. The Company shall at all times provide each ZHG Designee maintain directors and officers liability insurance policy, for all the Directors of the Company for such amount as may be approved by the Investor, from time to time and shall indemnify its Director(s) to the extent permissible under Laws.
4.1.7. The Company further agrees and undertakes that: (i) it shall not identify or designate any of the Investor Directors as the “responsible officers”, the “authorised officers”, the “compliance officers”, the “officers having knowledge”, the “officers in his charge”, “officers in default” or “employers of the employees” for the purposes of various statutory and regulatory compliance under Laws; and (ii) shall appoint suitable persons for the purposes of various statutory and regulatory compliance under Laws. In the event that any notice or proceedings have been filed against the Investor Directors by reason of him/her capacity being included within the scope of “officer in default”, the Company shall take necessary steps to ensure that the name(s) of the Investor Directors are excluded/deleted and shall take steps to defend against such proceedings.
4.1.8. Subject to applicable Law, the Company shall indemnify the Directors against any act, omission or conduct (including, contravention of any Law) of or by the Company, its officials, employees, managers, representatives or agents, or the Shareholders, as a member result of which, in whole or in part, the Directors are made party to, or otherwise incurs any loss pursuant to or in connection with any action, suit, claim or proceeding arising out of or relating to any such act, omission or conduct or any act or omission by the Directors at the request of or with the consent of the Board) Company, its officials, employees, managers, representatives or agents or the Shareholders or on account of the Directors being construed or deemed as an “officer in charge” under any Laws. Notwithstanding the foregoing, the Promoter Director shall not be entitled to claim indemnity under this Clause 4.1.8 for any action, suit, claim or proceeding arising out of or relating to any such act, omission or conduct undertaken by it, or with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directorshis consent.
Appears in 1 contract
Sources: Shareholders’ Agreement
Composition of the Board. (a) From and after the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of conversion of the Initial ZHG Designees ceases Convertible Preferred Stock into Common Stock pursuant to serve as the terms of the Convertible Certificate of Designations (the "Conversion"), and prior to the date of Conversion, if the holders of Series D Preferred Stock may exercise a Directorspecial voting right pursuant to Section V(b) of the Convertible Certificate of Designations, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, each Stockholder shall vote all of its Stockholder Shares which are Voting Securities and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction Voting Securities of the Board Company over which such Stockholder has voting control and shall take all other necessary or any duly-authorized committee thereof desirable actions within its control (including, without limitation, attendance at meetings in person or by proxy for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designeespurposes of obtaining a quorum and execution of written consents in lieu of meetings), and the Company shall use take all necessary or desirable actions within its best efforts control (including, without limitation, calling special Board and stockholder meetings), so that, subject to (x) effect the election remainder of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.2:
(c1) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation The authorized number of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and directors on the Board shall takebe no more than seven (7), and
(2) The following shall govern the composition of the Board:
(1) not less than three (3) representatives nominated by the Ginsburgs, acting as a group, shall be elected to the fullest extent permitted by LawBoard, at any time who shall initially be Richard Ginsburg and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇two additional represen▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ minated by the Ginsburgs; and
(together, 2) not less than two (2) representatives who shall not be officers or employees of the “Initial ZHG Designees”Company or its Affiliates or of Westar or its Affiliates or related by blood or marriage to or affiliated with any of the Ginsburgs (each an "Independent Director") to shall be appointed nominated mutually by the Stockholders and elected to the Board immediately after the ClosingBoard; and
(3) a number of directors, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed determined from time to time, which shall be equal to the class lesser of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, the whole number (in accordance with standard rounding conventions) nearest to the product of (A) Westar's fully diluted ownership percentage and (B) the number of authorized seats on the Board of Directors; and (ii) ▇▇. ▇▇▇▇▇▇▇▇ two (2), shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, nominated by Westar and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual elected to the Board; PROVIDED, including nominating such individual to be elected as a Director as provided hereinHOWEVER, recommending such individual’s election, soliciting proxies or consents that (i) in favor thereof, and, if necessary, increasing the Total Number of Directors.
(f) The Company shall at event that the aggregate Stockholder Shares owned by all times provide each ZHG Designee (in his or her capacity as a member of the BoardGinsburgs decreases to less than 2,000,000 shares of Common Stock but more than or equal to 1,250,000 shares of Common Stock, then the Ginsburgs shall have the right to nominate two (2) representatives; (ii) in the event that the aggregate Stockholder Shares owned by all of the Ginsburgs decreases to less than 1,250,000 but more than or equal to 500,000 shares of Common Stock, then the Ginsburgs shall have the right to nominate one (1) representative, and (iii) in the event that the aggregate Stockholder Shares owned by all of the Ginsburgs decreases to less than 500,000 shares of Common Stock, then the Ginsburgs shall have no nomination rights. In the event that nomination rights are forfeited in accordance with the same rights to indemnificationimmediately preceding proviso, advancement of expenses and exculpation that it provides to other Directorssuch board seats shall be filled by Independent Directors nominated mutually by the Stockholders.
Appears in 1 contract
Sources: Stockholders Agreement (Guardian International Inc)
Composition of the Board. (a) From and after The authorized number of Directors comprising the ClosingBoard shall be twelve, subject divided into three classes as provided in the Restated Charter.
(b) The persons to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals be nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve be designated as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, follows:
(i) the number R Parties shall initially have the right to designate three R Directors to be nominated for election (each of individuals that the ZHG Designator whom shall be entitled assigned to designate to serve a different class of directors, as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director ifdesignated by the R Parties), at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of and the total number of shares of Common Stock outstanding, R Directors that the R Parties are entitled to so designate shall be subsequently adjusted from time to time pursuant to paragraphs (c) and (f) below;
(ii) TD shall initially have the ZHG Designator shall not be entitled right to designate any individuals five TD Directors to serve be nominated for election (one of whom shall be a Class I Director, two of whom shall be Class II Directors and two of whom shall be Class III Directors, as Directors pursuant to this Section 2.1(a) ifdesignated by TD), at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of and the total number of shares of Common Stock outstanding or TD Directors that TD is entitled to so designate shall be subsequently adjusted from time to time pursuant to paragraphs (Bd) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement and (g) below;
(iii) the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either individual then serving as chief executive officer of the Initial ZHG Designees ceases to serve Company, for so long as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee such individual holds such position (who shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designeea Class I Director).; and
(biv) If at any time the ZHG Designator has initially, three Outside Independent Directors designated fewer than the total in accordance with Section 4.2(a) and thereafter, a number of individuals that the ZHG Designator is then entitled Outside Independent Directors equal to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate three plus such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is Outside Independent Directors, if any, entitled to so designatebe designated from time to time pursuant to paragraphs (f) and (g) below (after giving effect to any reductions in such number of additional Outside Independent Directors required by paragraphs (f)(iv) or (g)(iv) below), in which case, any individuals nominated by each case designated or at the direction of the Board or any duly-authorized committee thereof for election appointed as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this provided in Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”4.2.
(c) If, as of the Ownership Date, the R Parties’ Ownership Percentage is not at least 20.83%, and the number of R Directors has not already been adjusted, as of the Ownership Date, to a number less than three pursuant to paragraph (f), then one R Director (as selected by the R Parties) shall resign from the Board, and the resulting vacancy shall be filled by an Outside Independent Director in accordance with Section 4.2(c), in each case effective as of immediately prior to the following annual meeting of stockholders of the Company. In the event that a vacancy is created at any time by such R Director fails to deliver his or her resignation as required pursuant to this Section 4.1(c), the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy parties hereto shall be, and the Company shall use its reasonable best efforts take all necessary action to cause such vacancy Director to be filled by, a new designee of removed from the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationBoard.
(d) The Company If, as of the Ownership Date, TD’s Ownership Percentage is not at least 37.5%, and the Board shall takenumber of TD Directors has not already been adjusted, as of the Ownership Date, to a number less than five pursuant to paragraph (g), then one of the fullest extent permitted TD Directors (as selected by LawTD) shall resign from the Board, all actions necessaryand the resulting vacancy shall be filled by an Outside Independent Director in accordance with Section 4.2(c), including increasing the Total Number in each case effective as of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed immediately prior to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s following annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating . In the event that such TD Director fails to its annual meeting of stockholders for 2017deliver his or her resignation as required pursuant to this Section 4.1(d), (i) the parties hereto shall take all necessary action to cause such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall Director to be appointed to removed from the class of Directors up for election at the Company’s annual meeting of stockholders for 2018Board.
(e) For Following the Ownership Date the number of R Directors shall be reduced only in accordance with paragraph (f) below, and the number of TD Directors shall be reduced only in accordance with paragraph (g) below.
(f) (i) If from time to time following the Closing, the R Parties’ Ownership Percentage decreases from one R Party Ownership Level (as specified below) to another as a result of Transfers of Voting Securities by the R Parties or any designation pursuant of their respective Affiliates, and the R Parties’ Ownership Percentage remains, for at least 30 consecutive days, at an R Party Ownership Level such that the number of R Directors then serving on the Board exceeds the number of R Directors set forth opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage at the end of such 30-day period, then the number of R Directors shall be reduced to this Section 2.1 that occurs the total number set forth opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage at the end of such 30-day period.
(ii) If from time to time after the Closing, after the Company’s annual meeting R Parties’ Ownership Percentage decreases from one R Party Ownership Level to another as a result of stockholders for 2017share issuances by the Company or other actions or events other than Transfers of Voting Securities by the R Parties or any of their respective Affiliates and the R Parties do not comply with paragraph (h) below, and after then if at the appointments contemplated applicable anniversary date as of which the R Parties failed to be in compliance with the requirements of paragraph (h) the number of R Directors then serving on the Board exceeds the number of R Directors set forth opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage as of such anniversary date, then the number of R Directors shall be reduced to the total number shown below opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage as of such anniversary date.
(iii) Any reduction in the number of R Directors required by paragraphs (i) or (ii) above will be accomplished by the resignation or removal of one or more of the R Directors (as designated by the R Parties), effective (except as provided in Section 2.1(d6.3(a), in connection with an election ) as of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days immediately prior to the date of the following annual meeting of stockholders of the Company called (unless and to the extent that, prior to the date of such annual meeting, the number of R Directors entitled to be designated is increased pursuant to paragraph (iv) below). Any vacancy resulting from such reduction in the number of R Directors shall be filled by an Outside Independent Director in accordance with Section 4.2(c).
(iv) If from time to time following the Closing and one or more reductions in the number of R Directors pursuant to paragraphs (c), (f)(i) or (f)(ii) above, the R Parties’ Ownership Percentage increases from one R Party Ownership Level to another and the R Parties’ Ownership Percentage remains, for at least 30 consecutive days, at an R Party Ownership Level such that the purpose number of electing DirectorsR Directors then serving on the Board is less than the number of R Directors set forth opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage at the end of such 30-day period, the number of R Directors shall be increased to the total number shown below opposite the R Party Ownership Level which represents the R Parties’ Ownership Percentage at the end of such 30-day period. So long This increase will be accomplished by the resignation or removal of one or more of the Outside Independent Directors (as selected by the Outside Independent Directors Committee), and the resulting vacancy shall be filled by an individual R Director designated by a majority of the ZHG Designator pursuant to this Section 2.1 meets remaining R Directors or the Designee Qualificationssole remaining R Director (or, if there are no remaining R Directors, by the Company shallR Parties), in each case effective as of immediately prior to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any following annual meeting of stockholders called for of the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsCompany.
(fv) The Company For purposes of this Agreement, the “R Party Ownership Levels” shall at all times provide each ZHG Designee be as follows: Greater than 20.83% 3 Greater than 12.50% to 20.83% 2 Greater than 4.17% to 12.50% 1 4.17% or less 0 (in his or her capacity g) (i) If from time to time following the Closing, TD’s Ownership Percentage decreases from one TD Ownership Level (as specified below) to another as a member result of Transfers of Voting Securities by TD or any of its Affiliates, and TD’s Ownership Percentage remains, for at least 30 consecutive days, at a TD Ownership Level such that the Board) with number of TD Directors then serving on the same rights Board exceeds the number of TD Directors set forth opposite the TD Ownership Level which represents TD’s Ownership Percentage at the end of such 30-day period, then the number of TD Directors shall be reduced to indemnification, advancement the total number set forth opposite the TD Ownership Level which represents TD’s Ownership Percentage at the end of expenses and exculpation that it provides to other Directorssuch 30-day period.
Appears in 1 contract
Composition of the Board. (a) From and after the ClosingEffective Date, subject to the terms and conditions of this Article II, the ZHG Designator ▇▇▇▇▇▇▇▇ Majority shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee Committee thereof shall include, two four (24) individuals that who meet the Designee Qualifications to serve as Directors. Each such individual whom the ▇▇▇▇▇▇▇▇ Majority shall actually designate pursuant to this Section 2.1 shall be referred to herein as a “▇▇▇▇▇▇▇▇ Designee.” The initial ▇▇▇▇▇▇▇▇ Designees shall be mutually agreed by the Company and the ▇▇▇▇▇▇▇▇ Majority, and any replacement ▇▇▇▇▇▇▇▇ Designees shall require the approval (not to be unreasonably withheld) of a majority of the non-▇▇▇▇▇▇▇▇ Designee Directors (the “Approval Requirement”). Subject to Section 2.1(d), if any replacement ▇▇▇▇▇▇▇▇ Designee does not satisfy the Approval Requirement, the ▇▇▇▇▇▇▇▇ Majority shall have the right to designate another individual as the replacement ▇▇▇▇▇▇▇▇ Designee (which process may be repeated, subject to Section 2.1(d), until such time as the replacement ▇▇▇▇▇▇▇▇ Designee satisfies the Approval Requirement).
(b) Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be ▇▇▇▇▇▇▇▇ Majority is entitled to designate to serve as Directors pursuant to this Section 2.1(a) 2.1 shall be permanently reduced to to: (i) two (2) Directors if, at any time, the ▇▇▇▇▇▇▇▇ Stockholders, in the aggregate, Beneficially Own at least 20% of the Outstanding Shares but less than 25% of the Outstanding Shares; (ii) one (1) Director if, at any time, the aggregate Total Share Ownership ▇▇▇▇▇▇▇▇ Stockholders, in the aggregate, Beneficially Own at least 10% of the ZHG Entities is Outstanding Shares but less than twenty percent (20%) % of the total Outstanding Shares; and (iii) no Directors if, at any time, the Stephens Stockholders, in the aggregate, Beneficially Own less than 10% of the Outstanding Shares. Any step-down reductions in the number of shares of Common Stock outstanding, and (ii) individuals that the ZHG Designator shall not be ▇▇▇▇▇▇▇▇ Majority is entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities immediately preceding sentence is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (referred to in either case hereinafter as the “Material TermsBoard Stepdown.”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG ▇▇▇▇▇▇▇▇ Designee, except in the case of vacancy resulting from, or related to, the Board Stepdown, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee Committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of ▇▇▇▇▇▇▇▇ Designee who has satisfied the ZHG Designator who Approval Requirement and meets the applicable Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) . The Company and will use its reasonable best efforts not to take any action to oppose the Board shall take, to exercise by the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ Stockholders of any right such ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, Stockholders may have to cause the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. resignation of a ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018Designee.
(ed) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in In connection with an election of Directors by the stockholders of the Company, the ZHG Designator ▇▇▇▇▇▇▇▇ Majority shall identify its designees the ▇▇▇▇▇▇▇▇ Designee or ▇▇▇▇▇▇▇ Designees by written notice to the Company no less than ninety one hundred twenty (90120) days prior to the date of the meeting of stockholders of the Company to be called for the purpose of electing Directors. So long as an individual designated by a ▇▇▇▇▇▇▇▇ Designee meets, and continues to meet at each time of re-election, the ZHG Designator pursuant to this Section 2.1 meets the applicable Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual ▇▇▇▇▇▇▇▇ Designee in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual ▇▇▇▇▇▇▇▇ Designee to the Board, including nominating such individual ▇▇▇▇▇▇▇▇ Designee to be elected as a Director as provided herein, recommending such individual▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇’s election, election and soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(fe) The Company shall at all times provide each ZHG ▇▇▇▇▇▇▇▇ Designee appointed or elected to the Board (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses indemnification and exculpation that it provides to other Directors. In addition, in his or her capacity as a member of the Board or any applicable Committee on which he or she formally serves as a member, such ▇▇▇▇▇▇▇▇ Designee shall be entitled to receive (i) any and all applicable Director and Committee fees and compensation that are payable to the Company’s non-employee Directors as part of the Company’s director compensation plan, and (ii) reimbursement of all reasonable, documented out-of-pocket expenses that he or she incurs in connection with performing Board and any applicable Committee duties in accordance with the Company’s expense reimbursement policy applicable to non-employee Directors.
Appears in 1 contract
Composition of the Board. (a) From and after the Closing, subject to the terms and conditions The Board shall consist of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than nine directors, one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Lawmay, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇’▇ election, be designated by Goldman (the “Goldman Director”) and one of whom may, at ConAgra’s election, be designated by ConAgra (the “ConAgra Director”). Each of Goldman and ConAgra may, at their respective elections, from time to time, submit to the Company in writing the name of the individual it wishes to be designated to the Board as the Goldman Director or ConAgra Director, as applicable. Unless Goldman or ConAgra advise the Company otherwise, the Company may assume that the then current Goldman Director or ConAgra Director shall be ▇▇▇▇▇▇▇’▇ and ▇▇▇▇▇▇ ▇▇▇▇ (togetherConAgra’s designee’s, as applicable, at any future election of directors. Prior to the date this Agreement terminates pursuant to Section 4.02(b) hereof, the “Initial ZHG Designees”) to be appointed to size of the Board immediately after may not be increased without the Closingprior written consent of Goldman and ConAgra, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to in each case, which shall not be unreasonably withheld or delayed; provided that, the class consent of Directors up for election at the Company’s annual meeting of stockholders for 2019 Goldman and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign ConAgra shall not be required in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing expansion of the Company’s proxy statement relating Board to its annual meeting provide bona fide, third party purchasers of stockholders for 2017, (i) such appointments shall occur immediately Company securities after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018date hereof with Board representation.
(eb) For any designation pursuant Each Stockholder shall vote all of its Company Securities that are entitled to this Section 2.1 that occurs after vote or execute proxies or written consents, as the Closingcase may be, after and take all other necessary action (including causing the Company’s annual Company to call a special meeting of stockholders for 2017, stockholders) in order to ensure that the size and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders composition of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long Board is as an individual designated by the ZHG Designator pursuant to set forth in this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsArticle 2.
(fc) The Company shall at all times provide cause each ZHG Designee (in his individual designated pursuant to Section 2.01(a) or her capacity 2.03 to be nominated to serve as a member director on the Board, and shall take all other necessary actions (including calling a special meeting of the BoardBoard and/or stockholders) with to ensure that the same rights to indemnification, advancement size and composition of expenses and exculpation that it provides to other Directorsthe Board is as set forth in this Article 2.
Appears in 1 contract
Sources: Voting Agreement (Changing World Technologies, Inc.)
Composition of the Board. (a) From and after Pre-IPO. The Board of Directors of the ClosingCompany (the "Board") shall, subject in accordance with the provisions of the Restated Articles, be comprised of no more than twenty members. Prior to an IPO:
(i) So long as Beacon holds (x) 51% or more of the number of shares of Series D Preferred purchased by Beacon pursuant to the terms and conditions Purchase Agreement or (y) 5% or more of this Article IIthe Common Stock (the "Pre-IPO Threshold"), the ZHG Designator Beacon shall have the right (but not to designate two persons to serve as members of the obligation) to designateBoard, and in all other cases, the individuals nominated holders of a majority of the outstanding shares of Series D Preferred, including, for election the purposes of this clause (i) holders of shares of Class C Common Stock into which shares of Series D Preferred have been converted, shall have the right to designate two persons to serve as Directors by or at the direction members of the Board or (each, a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a"Beacon Director"), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and ;
(ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership holders of a majority of the ZHG Entities is less than ten percent (10%) of the total number of outstanding shares of Class A Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled six persons to so designate, in which case, any individuals nominated by or at the direction serve as members of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019Board; provided, however, that if the Closing occurs after mailing holders of the Company’s proxy statement relating outstanding shares of Class A Common Stock hereby agree to its annual meeting designate each of stockholders the Senior Management Shareholders as three of the six members of the Board to be elected by the holders of a majority of the outstanding Class A Common Stock for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d)as long as, in connection each such Senior Management Shareholder's case, his employment agreement with an election the Company is in full force and effect. Each Senior Management Shareholder shall offer to resign as a member of Directors by the stockholders Board immediately upon termination of his employment with the Company, and the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date holders of the meeting Class A Common Stock agree to remove from the Board any Senior Management Shareholder who is no longer employed by the Company;
(iii) the holders of stockholders a majority of the Company called outstanding shares of Class B Common Stock shall have the right to designate eight persons to serve as members of the Board (the "Class B Directors");
(iv) the holders of a majority of the outstanding shares of Series A Preferred, including, for the purpose purposes of electing Directors. So long as an individual designated by this clause (iv) shares of Class C Common Stock into which shares of Series A Preferred have been converted, shall have the ZHG Designator pursuant right to this Section 2.1 meets the Designee Qualifications, the Company shall, designate one person to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity serve as a member of the Board;
(v) with the same rights holders of a majority of the outstanding shares of Series B Preferred, including, for the purposes of this clause (v) shares of Class C Common Stock into which shares of Series B Preferred have been converted, shall have the right to indemnificationdesignate one person to serve as a member of the Board; and
(vi) the holders of a majority of the outstanding shares of Series C Preferred, advancement including, for the purposes of expenses and exculpation that it provides this clause (vi) shares of Class C Common Stock into which shares of Series C Preferred have been converted, shall have the right to other Directorsdesignate two persons to serve as members of the Board.
Appears in 1 contract
Sources: Shareholders' and Voting Agreement (Doctors Health System Inc)
Composition of the Board. (a) From and after Effective as of the Closing, subject to the terms and conditions of this Article IIEffective Time, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as authorized number of Directors by or at the direction of comprising the Board or a duly-authorized committee thereof shall includeinitially be 10, two (2) individuals that meet divided into three classes as provided in the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a)Charter, but subject to the proviso set forth in Section 2.6, consisting of:
(i) three (3) individuals selected by the number Board prior to the filing date of individuals that the ZHG Designator definitive Proxy Statement (as such term is defined in the Merger Agreement) to occupy one seat in each of the three classes (the "C Co Directors");
(ii) the individual then serving as the Chief Executive Officer of the Company, for so long as such individual holds such position (who shall be entitled a Class 2 Director);
(iii) four (4) individuals designated by F Co Parent prior to designate to serve as Directors pursuant to this Section 2.1(a) the expected filing date of the definitive Proxy Statement, one of whom shall be reduced to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ (the "F Co Parent Directors"), with ▇▇. ▇▇▇▇▇ and one (1) other F Co Parent Director ifto be Class 1 Directors, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent one (20%1) of the total number of shares of Common Stock outstandingF Co Parent Director to be a Class 2 Director, and one (ii1) F Co Parent Director to be a Class 3 Director;
(iv) one (1) individual designated by ▇▇▇▇▇▇ ▇. ▇▇▇ Parallel Fund V, L.P. (the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time"THL Director"), (Awho shall be a Class 1 Director), who shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and who shall be such director so long as he is a principal of THL (or equivalent or higher ranking employee of THL), provided that any director replacing the initial THL Director shall always be an individual who is a principal of THL (or equivalent or higher ranking employee of THL); and
(v) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent one (10%1) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article IIIindividual designated by TPG Partners IV, Section 4.1, Section 4.3 or Section 4.6 of this Agreement L.P. (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty "TPG Director"), (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee who shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(aa Class 3 Director), the ZHG Designator who shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall initially be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ who shall be such director so long as he is a principal of TPG (togetheror equivalent or higher ranking employee of TPG), provided that any director replacing the initial TPG Directors shall always be an individual who is a principal of TPG (or equivalent or higher ranking employee of TPG).
(b) The Company and F Co Parent shall each provide written notice to the other, not less than 5 Business Days prior to the expected filing date of the definitive Proxy Statement of the individuals who shall be designated as the initial three C Co Directors and the four F Co Parent Directors pursuant to Section 5.4(a), provided, however, that if either the Company or F Co Parent has not selected their respective nominees by such date, then notwithstanding the foregoing, the “Initial ZHG Designees”) to be appointed Company or F Co Parent, as the case may be, shall instead provide such notice at least 5 Business Days prior to the Board immediately after expected date of the ClosingClosing (or if such period of notice is not practicable under the circumstances because an individual who has been so designated is no longer available for such service, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed such prior notice as is practicable), and provided, further that designation of the initial C Co Directors shall be subject to the class prior written consent of Directors up for election at F Co Parent, which consent shall not be unreasonably withheld.
(c) Except as provided in Section 5.4(d), the Company’s annual meeting size and composition of stockholders for 2019 the Board may thereafter be changed as permitted by and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection accordance with applicable law and the Closing, Charter and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019Bylaws; provided, however, that if none of F Co Parent or its Affiliates shall vote its shares or otherwise act to remove any person serving as a C Co Director prior to expiration of such Director's term other than for cause.
(d) Following the Closing occurs after mailing Effective Time, the Board shall include (i) the individual then serving as the Chief Executive Officer of the Company’s proxy statement relating to its annual meeting of stockholders , for 2017so long as such individual holds such position, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed the F Co Parent Directors, for so long as F Co Parent remains a party to this Agreement; (iii) the class THL Director, for so long as THL owns at least one-third (33%) of the Voting Securities held by it immediately after the Effective Time (subject to adjustment for stock splits, combinations and similar events); (iv) the TPG Director, for so long as TPG owns at least one-third (33%) of the Voting Securities held by it immediately after the Effective Time (subject to adjustment for stock splits, combinations and similar events); and (v) such number of Independent Directors up for election as is necessary to have in office at the Company’s annual meeting of stockholders for 2018all times not less than three (3) Independent Directors.
(e) For any designation pursuant Subject to this Section 2.1 that occurs after subsection (d) above and until such time as such Committees must be comprised entirely of Independent Directors in accordance with the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders listing standards of the CompanyNew York Stock Exchange, the ZHG Designator Compensation Committee of the Board shall identify its designees by written notice to include one of either the Company no less than ninety THL Director and the TPG Director. The THL Director and TPG Director shall rotate their position on the Compensation Committee each year.
(90f) days No party shall designate a Director (i) who has been removed for cause from the Board, (ii) has ever been convicted of a felony, or (iii) is or, within 10 years prior to the date of the meeting designation, has been subject to any permanent injunction for violation of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies federal or consents in favor thereof, and, if necessary, increasing the Total Number of Directorsstate securities law.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Sources: Shareholder Agreement (Fidelity National Financial Inc /De/)
Composition of the Board. (a) From and after the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors2.1. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the The Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election consist of such additional designees, whether by increasing the size eight members each serving for a term of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacanciesone year. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ Group shall be entitled, but not required, to designate three members of the Company Board (the "▇▇▇▇▇▇▇▇ Directors"), the BMC Group shall be entitled, but not required, to designate one member of the Company Board (the "BMC Director") and the ▇▇▇▇▇▇ Group shall be entitled, but not required, to designate four members of the Company Board (the "▇▇▇▇▇▇ (togetherDirectors"). At any time that the number of directors constituting the full Board shall be increased, the “Initial ZHG Designees”) to be appointed to director designation ratio of the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to Group, the class of Directors up for election at BMC Group and the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇Group hereunder shall continue until a Group no longer owns at least 10% of the outstanding Stock; in which event this Agreement shall no longer apply to such Group and the members of the Board designated by such Group, who is expected to resign in connection with the Closing, and to the class of Directors up for election at extent, if any requested by the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing remaining members of the Company’s proxy statement relating to its annual meeting Board. Each of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. the ▇▇▇▇▇▇▇▇ Group and the BMC Group shall be appointed entitled to designate one director designated by such Group to serve on the Board to serve on the Executive Committee, and the ▇▇▇▇▇▇ Group shall be entitled to designate two directors designated by such Group to serve on the Board to serve on the Executive Committee (one of whom shall be designated as the Chairman of the Executive Committee). The ▇▇▇▇▇▇▇▇ Group and the BMC Group, acting collectively, shall be entitled to designate (i) one member of the Company Board to be elected as Chairman of the Board, and (ii) one member to the class Compensation Committee of Directors up for election at the Company Board. The ▇▇▇▇▇▇ Group shall be entitled to designate the President and Chief Executive Officer of the Company’s annual . Each Stockholder entitled to vote for the election of directors to the Company Board agrees that such Stockholder will vote all of such Stockholder's Shares or execute consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of stockholders for 2018stockholders) in order to ensure that the composition of the Board is as set forth in this Section 2.1.
2.2. Each Stockholder agrees that if, (ei) For any designation pursuant such Stockholder receives a notice from a Group that such Group requests that a director designated by such Group be removed, each Stockholder will vote all of such Stockholder's Shares or execute consents, as the case may be, to this Section 2.1 that occurs after the Closing, after the Company’s annual call a special meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company and to vote for the removal of such director at such meeting, and (ii) at any time such Stockholder is entitled to vote for the removal of one or more directors of the Company, except as set forth in (i) above, such Stockholder will not vote any of such Stockholder's Shares in favor of the ZHG Designator removal of any director who shall identify its designees by written notice have been designated pursuant to Section 2.1, unless such removal shall be for Cause or the Group entitled to designate such director shall have consented to such removal in writing. Removal for "Cause" shall mean removal of a director because of such director's (a) willful and continued failure to substantially perform his duties as a director of the Company, (b) willful conduct which is significantly injurious to the Company no less than ninety Company, monetarily or otherwise, or (90c) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualificationsconviction for, the Company shallor a guilty plea to, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directorsfelony.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Composition of the Board. (a) From Subject to Section 2.11, the Board shall be comprised of one to seven (7) Managers, with the exact number of Managers comprising the Board to be determined from time to time by a Common Majority in Interest, and after shall include one Independent Manager as provided in Section 4.2(e). The Board initially shall consist of four (4) Managers, one of which shall be the ClosingIndependent Manager. The Managers shall be designated by a Common Majority in Interest; provided, subject to that upon the exercise of all Series A Warrants in accordance with the terms and conditions of this Article IIthereof, the ZHG Designator Series A Preferred Majority in Interest shall have the right to designate one (but not 1) Manager to the obligationBoard (the “Series A Designee”) to designate, in its sole discretion and the individuals nominated for election size of the Board shall be deemed to be increased to permit the designation of such Manager; provided further, that at such time as Directors the Ares Member ceases to beneficially own at least five percent (5.0%) of the then issued and outstanding Common Units, the Series A Preferred Majority in Interest will have no further right to designate a Manager to the Board and any Series A Designee then serving on the Board pursuant to this Section 4.2 shall be automatically removed and the size of the Board shall be decreased by one member.
(b) Subject in all cases to Section 2.11(d) and Section 4.2(e), (i) each Manager shall serve until a successor is appointed in accordance with the terms hereof or his or her earlier resignation, death or removal, (ii) any Manager may be removed only by the party designating such Manager, with or without cause and (iii) a Manager may resign at any time upon written notice to the direction Company. Such resignation shall be effective upon receipt unless it is specified to be effective at some other time or upon the happening of some other event. For the avoidance of doubt, the removal of the Independent Manager is subject to Section 4.2(e) of this Agreement.
(c) Subject in all cases to Section 2.11(d) and Section 4.2(e), in the event that any Manager ceases to serve as a member of the Board during his or her term of office, the resulting vacancy on the Board shall be filled by the party having the right to designate such Manager. If such party fails to appoint a Manager pursuant to the terms of this Section 4.2, such position on the Board shall remain vacant until such party exercises its right to appoint a Manager as provided hereunder. A Manager chosen to fill a vacancy shall serve the unexpired term of his predecessor in office. For the avoidance of doubt, the replacement of the Independent Manager is subject to Section 4.2(e) of this Agreement.
(d) Subject to any restrictions under the Company’s or any of its Subsidiaries’, as applicable, lending agreements, the Company (i) shall pay, or shall cause its Subsidiaries to pay, the reasonable out-of-pocket fees and expenses incurred by each Manager in connection with such Manager’s service on the Board, including attending any meeting of the Board or a duly-authorized any committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstandingthereof, and (ii) the ZHG Designator shall not be entitled to designate may compensate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve Manager for services rendered as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction member of the Board or any duly-authorized committee thereof thereof. Except as otherwise provided in the immediately preceding sentence or elsewhere in this Agreement, the Managers shall not be compensated for election their services as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size members of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”Board.
(ce) In the event that a vacancy is created at Until such time as there are no longer any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, Series A Preferred Units outstanding and the Company former holders thereof have been paid in full, the Common Majority in Interest shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, at all times to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) have one Independent Manager. The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇Independent Manager may not be removed unless it is for Cause. The initial Independent Manager is ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ . To the fullest extent permitted by applicable law, including Section 18-1101(c) of the Act, and ▇▇▇▇▇▇ ▇▇▇▇ (togethernotwithstanding any duty otherwise existing at law or in equity, the “Initial ZHG Designees”Independent Manager shall consider only the interests of the Company, including its creditors, in acting or otherwise voting on the matters referred to in Section 4.12(b), Section 4.12(c) to be appointed and Section 4.12(d). Except for duties to the Board Company as set forth in the immediately after the Closing, with preceding sentence (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed including duties to the class of Directors up for election at Members and the Company’s annual meeting creditors solely to the extent of stockholders for 2019 their respective economic interests in the Company, but excluding (i) all other interests of the Members, (ii) the interests of other Affiliates of the Company, (iii) the interests of any group of Affiliates of which the Company is a part, and (yiv) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇the interests of the Manager Group), who is expected to resign in connection with the Closing, and Independent Manager shall not have any fiduciary duties to the class Members, any member of Directors up for election at the Company’s annual meeting of stockholders for 2019Board or any other Person bound by this Agreement; provided, however, that if the Closing occurs after mailing foregoing shall not eliminate the implied contractual covenant of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, good faith and (ii) ▇▇fair dealing. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to To the fullest extent permitted by Lawapplicable law, include including Section 18-1101(e) of the Act, the Independent Manager shall not be liable to the Company, the Members or any other Person bound by this Agreement for breach of contract or breach of duties (including fiduciary duties), unless the Independent Manager acted in bad faith or engaged in fraud or willful misconduct. No resignation or removal of the Independent Manager, and no appointment of a successor Independent Manager, shall be effective until such individual successor shall have accepted his or her appointment as the Independent Manager by executing a counterpart to this Agreement. In the event of a vacancy in the slate position of nominees recommended by Independent Manager, the Board Common Majority in Interest shall, as soon as practicable, appoint a successor Independent Manager. Notwithstanding anything to the contrary contained in this Agreement, the Independent Manager shall not be removed or replaced unless the Company provides the Series A Preferred Majority in Interest with no less than five (5) Business Days’ prior written notice of (a) any proposed removal of the Independent Manager (including the finding of Cause), and (b) the identity of the proposed replacement Independent Manager, together with a certification that such replacement satisfies the requirements for the Independent Manager set forth in this Agreement. All right, power and authority of the Independent Manager shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in Article IV. Except as provided in the fourth sentence of this Section 4.2(e), in exercising its rights and performing its duties under this Agreement, the Independent Manager shall have fiduciary duties of loyalty and care identical to those of a director of a business corporation organized under the General Corporation Law of the State of Delaware. The Independent Manager shall not at any meeting time serve as trustee in bankruptcy for any Affiliate of stockholders called for the purpose Company or any member of electing Directorsthe Manager Group. The Independent Manager is hereby designated as a “manager” within the meaning of Section 18-101(12) of the Act. All right, power and use its reasonable best efforts to cause authority of the election of such individual Independent Manager shall be limited to the Boardextent necessary to exercise those rights and perform those duties specifically set forth in Section 4.12(b), including nominating such individual (c) and (d) and the Independent Manager shall otherwise have no authority to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing act on behalf of the Total Number of Directors.
(f) Company. The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of be entitled to pay the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other DirectorsIndependent Manager customary compensation.
Appears in 1 contract
Sources: Limited Liability Company Agreement (FTAI Infrastructure Inc.)
Composition of the Board. (a) From and after the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designateThe Company shall, and the individuals nominated for election as Directors by or Stockholders shall take all Necessary Action to, cause the Board to be comprised at the direction Closing of seven directors. The Board shall be comprised of (A) three directors who shall be designated by ▇▇▇▇ (each, a “▇▇▇▇ Director”) who initially shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇▇▇▇ and thereafter shall be designated pursuant to Section 3.1(c) of this Agreement, provided that all but one of the Board or a duly-authorized committee thereof ▇▇▇▇ Directors shall include, two (2) individuals that meet have been determined by the Designee Qualifications Company to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstandingan “independent director” under NYSE Rules, and (iiB) the ZHG Designator one director who shall not be entitled to designate any individuals to serve as Directors designated by Learn and initially shall be ▇▇▇ ▇▇▇▇▇▇ and thereafter shall be designated pursuant to this Section 2.1(a3.1(d) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material TermsLearn Director”) in any material respect and such breach continues after written notice from ), provided that the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee Learn Director shall be an Independent ZHG Designee, unless otherwise have been determined by the Board Company to be an “independent director” under NYSE Rules, (excluding any ZHG Designee).
(bC) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals one director who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time designated by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy TCV and initially shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇thereafter shall be designated pursuant to Section 3.1(e) of this Agreement (the “TCV Director”), provided that the TCV Director shall have been determined by the Company to be an “independent director” under NYSE Rules, (D) one director who shall be designated by TPG Pace and initially shall be ▇▇▇▇ ▇▇▇▇ and thereafter shall be designated pursuant to Section 3.1(f) of this Agreement (together, the “Initial ZHG DesigneesTPG Director”) ), provided that the TPG Director shall have been determined by the Company to be appointed to the Board immediately after the Closingan “independent director” under NYSE Rules, with and (xE) ▇▇. ▇▇▇▇one director, who shall initially be mutually designated by ▇▇▇▇ appointed to and TPG Pace before the class mailing of Directors up for election at the Company’s annual meeting of stockholders for 2019 Registration Statement/Proxy Statement (the “Mutual Director”), provided that the Mutual Director shall (i) be an Unaffiliated Director and (yii) ▇▇. meet diversity standards mutually agreed upon between ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closingand TPG Pace, and to thereafter shall be a person nominated by the class of Directors up for election at Board in accordance with the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇governing documents. ▇▇▇▇▇▇▇▇ The initial Board shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated divided in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long three classes as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.follows:
Appears in 1 contract
Sources: Stockholder Agreement (TPG Pace Tech Opportunities Corp.)
Composition of the Board. (a) Pursuant to the Securities Purchase Agreement and in each case effective as of the Closing:
(i) the Board shall take all necessary corporate action to increase the Total Number of Directors to eleven (11), comprised of the five (5) Initial Investor Designees, five (5) Company Designees and the Company’s chief executive officer;
(ii) the Company shall use commercially reasonable efforts to cause the resignations of two (2) individuals who are directors of the Company immediately prior to the Closing (other than the Company Designees and the Company’s chief executive officer); and
(iii) the Company shall take all necessary corporate action to appoint the Initial Investor Designees to the Board.
(b) From and after the ClosingClosing until the Sunset Date, subject to the terms and conditions of this Article II, the ZHG Designator Investor shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two up to five (25) individuals that meet the Designee Qualifications to serve as DirectorsDirectors (each such individual whom Investor shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as an “Investor Designee”); provided, that, at all times, at least two (2) of the Investor Designees shall be Independent Investor Designees (except, if, Investor is only entitled to nominate four (4) Investor Designees, only one (1) of the Investor Designees shall be required to be an Independent Investor Designee, and, if, Investor is only entitled to nominate three (3) or fewer Investor Designees, no Investor Designees shall be required to be an Independent Investor Designee). Notwithstanding the foregoing provisions of this Section 2.1(a2.1(b), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator Investor shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a2.1(b) shall be reduced adjusted, as applicable, immediately after any Transfer of Equity Securities of the Company by an Investor Entity and otherwise at each record date established by the Board with respect to one (1) Director ifany meeting of stockholders of the Company involving the election of Directors, to a number equal to the Percentage Interest of the Investor Entities multiplied by the Total Number of Directors at any such time, rounded up to the aggregate Total Share Ownership of nearest whole number; provided, that, (i) the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, Investor Designees shall not exceed five (5) individuals and (ii) on and after the ZHG Designator shall not be entitled to designate Sunset Date, or the earlier date on which any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Investor Entity intentionally breaches Article III, Section 4.1, 4.1 or Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty ten (3010) day Business Day opportunity to cure. , the Investor shall not be entitled to designate any individuals to serve as Directors, and no Investor Designee shall be entitled to serve as Director, in each case pursuant to this Agreement.
(c) From and after the date on which either Closing until the Sunset Date, the chief executive officer of the Initial ZHG Designees ceases Company shall be entitled to serve be nominated by the Board for election as a DirectorDirector (except as otherwise determined by the approval of a majority of the independent directors, not more including a majority of the Independent Company Designees entitled to vote on such matter) (such Person, the “CEO Designee”).
(d) From and after the Closing until the Sunset Date, the Independent Company Designees shall have the exclusive right to nominate persons on behalf of the Board for election at annual stockholders meetings for, or to fill vacancies in, all Director positions, other than one ZHG Designee (i) the Investor Designees and (ii) the CEO Designee; provided, that, at any time may be an Affiliated ZHG Designeeall times, and any other ZHG Designee the Company Designees shall be an Independent ZHG DesigneeCompany Designees, unless otherwise determined by the Board (excluding any ZHG Designeeincluding, for so long as the Percentage Interest of the Investor Entities is at least 25%, at least a majority of the Investor Designees entitled to vote on such matter).
(be) If at any time the ZHG Designator Investor has designated fewer than the total number of individuals that the ZHG Designator Investor is then entitled to designate pursuant to Section 2.1(a2.1(b), the ZHG Designator Investor shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator Investor is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its reasonable best efforts to (xi) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (yii) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(cf) In Subject to Section 2.3, in the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Investor Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator Investor who meets the Designee Qualifications, and the Company and the Board shall takeuse reasonable best efforts, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(eg) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator Investor shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing DirectorsDirectors or if later, prior to the 10th day after the public announcement of the meeting date. So long as an individual designated by the ZHG Designator Investor pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(fh) The Company shall at all times provide each ZHG Investor Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors. Each Investor Designee shall be entitled to receive from the Company and its Subsidiaries, if applicable, the same insurance coverage in connection with his or her service as a member of the Board or any committee thereof as is provided to other Directors. Such insurance coverage shall be provided through customary director and officer indemnity insurance on commercially reasonable terms.The Company shall at all times provide each Investor Designee with compensation, benefits and reimbursement (including of travel expenses) that it provides to the Company Designees.
(i) From the date hereof until the Sunset Date, Investor may designate one (1) individual as an observer (the “Observer”) to attend each meeting of the Board and its committees in a non-voting capacity, subject to such individual’s prior execution and delivery to the Company of a customary confidentiality agreement in the form attached hereto as Exhibit C (as it may be reasonably modified from time to time by the Nominating and Corporate Governance Committee) and except when such attendance would present an actual or potential conflict of interest (in the good faith determination of the Board or any committee thereof, as applicable).
Appears in 1 contract
Composition of the Board. (a) From Subject to Section 2.01(b) and after the Closing, subject to the terms and conditions of this Article IISection 2.01(c), the ZHG Designator Board shall have the right consist of thirteen (but not the obligation13) to designateDirectors, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, which:
(i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, shall be designated by Lightyear (the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and “Lightyear Designee”),
(ii) the ZHG Designator one (1) shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement designated by GMT (the “Material Terms”) in any material respect GMT Designee” and such breach continues after written notice from together with the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Lightyear Designee, and any other ZHG Designee the “Key Investor Designees”),
(iii) one (1) shall be an Independent ZHG Designee, unless otherwise determined designated by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ (the “▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ Designee”), (together, iv) one (1) shall be designated by Constitution (the “Initial ZHG Designees”) to be appointed to Constitution Designee” and together with the Board immediately after Key Investor Designees and the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to Designee, the class “Investor Designees”), (v) one (1) shall be the then Chief Executive Officer of Directors up for election at the Company’s ,
(vi) one (1) shall be the then President of the Company, and
(vii) the remaining seven (7) Directors (the “Independent Directors”) shall, along with the Investor Designees, initially be the persons identified on Exhibit B, and the Independent Directors thereafter shall be nominated by the nominating committee of the Board (and if no such committee exists, the Board) and, if approved by stockholders at a duly called annual or special meeting of stockholders or by a written consent of stockholders, will be elected to the Board; provided that such Independent Directors described in this Section 2.01(a)(vii) must be “independent of management,” in accordance with 12 C.F.R. Part 363 and Appendix A thereto, and in any event shall not be either an “affiliate” or an “associate” (as such terms are used within the meaning of Rule 12b-2 under the Exchange Act) of any stockholder or any executive officer of the Company or any Subsidiary of the Company, or any Affiliate of any of the foregoing. In the event that a nominee for 2019 Independent Director is not approved by a majority of the Common Shares, the previous Independent Director shall remain on the Board subject to the last sentence of this Section 2.01(a), and the procedure for nominating and electing such Independent Director described above shall be repeated until such Independent Director is elected. Each of the Directors will hold office until the earlier of (x) his or her death, disability, retirement, resignation, or removal (with or without cause) and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign the election of a replacement director in connection accordance with the Closingprovisions of Section 2.03(a).
(b) If, and to the class at any time, any of Directors up for election at the Company’s annual meeting of stockholders for 2019; providedLightyear, howeverGMT, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ or Constitution, together with each of their respective Affiliates and Permitted Transferees, owns (including, for purposes of calculating such Investor Stockholder’s ownership, the number of Common Shares issuable upon conversion of all Preferred Stock, if any, owned by such Investor Stockholder without regard to any limitations on conversion that may apply pursuant to the terms of the Preferred Stock) less than five percent (5%) of the Common Stock outstanding on a Fully-Diluted basis, then such Investor Stockholder’s right to designate an Investor Designee shall terminate immediately and the size of the Board shall as soon as practicable be reduced accordingly, and, if the Board does not so reduce its size, the Stockholders shall take all such actions as are necessary and within their control to implement such reduction of the size of the Board. If at any time either Lightyear, GMT, ▇▇▇▇▇▇▇▇ or Constitution loses its right pursuant to the terms of this Section 2.01(b) to designate a director, such Investor Stockholder shall lose such right permanently and such Investor Designee shall resign, unless within ninety (90) days after the loss of such right, such Investor Stockholder’s ownership of Common Stock (including, for purposes of calculating such Investor Stockholder’s ownership, the number of Common Shares issuable upon conversion of all Preferred Stock, if any, owned by such Investor Stockholder without regard to any limitations on conversion that may apply pursuant to the terms of the Preferred Stock) increases to an amount equal to or greater than five percent (5%) of the Common Stock outstanding on a Fully-Diluted basis.
(c) If, at any time, any of Lightyear, GMT, ▇▇▇▇▇▇▇▇ or Constitution shall be appointed in material breach of this Agreement, and such material breach is not cured within thirty (30) days of receipt by the applicable party of written notice by the Company to the class applicable party or such longer period of time as may reasonably be required to cure such material breach, then such Investor Stockholder shall permanently lose its right to designate an Investor Designee pursuant to Section 2.01(a), such party’s applicable Investor Designee shall resign, and the size of the Board shall be reduced accordingly as soon as practicable, and, if the Board does not so reduce its size, the Stockholders shall take all such actions as are necessary and within their control to implement such reduction of the size of the Board, provided, that the foregoing cure period shall be tolled in respect of and during the continuance of any bona fide dispute concerning the material breach, as applicable, and this provision shall have no effect until the final resolution of such bona fide dispute.
(d) Each Stockholder agrees that, if at any time it is then entitled to vote for the election of Directors up for election at to the Company’s annual Board, it shall vote its Shares or execute proxies or written consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of stockholders for 2018stockholders) in order to ensure that the composition of the Board is as set forth in this Section 2.01.
(e) For any designation The Company agrees to cause each individual designated pursuant to Section 2.01(a) or Section 2.03 to be nominated to serve as a Director on the Board, and to take all other necessary actions (including calling a special meeting of the Board and/or stockholders) to ensure that the composition of the Board is as set forth in this Section 2.1 that occurs after 2.01. The Company further agrees that, to the Closingextent permitted by applicable regulations and any required consents, after the Company’s annual meeting of stockholders for 2017approvals or non-objections of, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Companyany commitments to, the ZHG Designator Regulatory Authorities, Lightyear and GMT shall identify its designees by written notice to have comparable representation on the Company no less than ninety (90) days prior to the date board of the meeting directors of stockholders any Subsidiary of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this and any committees thereof in accordance with Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, 2.01 and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsSection 2.06 hereof.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Composition of the Board. (a) From and after the Closing, subject Subject to the terms and conditions of this Article IISection 11.11, the ZHG Designator Company shall have have, and each Party shall take all necessary actions to cause the right Company to have, a Board consisting of up to five (but not 5) Directors with the obligationcomposition as follows: (i) the Co-Founder shall be entitled to designate, appoint, remove, replace and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, reappoint two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, ; (iii) the number of individuals that the ZHG Designator Founder shall be entitled to designate to serve as Directors pursuant to this Section 2.1(adesignate, appoint, remove, replace and reappoint one (1) Director; (iii) Ant Financial shall be reduced entitled to designate, appoint, remove, replace and reappoint one (1) Director if, at any time, (the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, “Ant Financial Director”); and (iiiv) the ZHG Designator Matrix and Chuangji, collectively, shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(adesignate, appoint, remove, replace and reappoint one (1) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement Director (the “Material TermsMatrix and Chuangji Director”) in any material respect , together with the Ant Financial Director, the “Investor Directors”). The Founder and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after Co-Founder shall be the date on which either co-chairmen of the Initial ZHG Designees ceases to serve Board so long as each of the Founder and Co-Founder serves as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If Each Shareholder agrees that, if at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator it is then entitled to designate pursuant vote for the election of the Directors, it shall vote all of its Company Securities or execute proxies or written consents, as the case may be, and take all other necessary actions (including causing the Company to Section 2.1(a), the ZHG Designator shall have the right (but not the obligationcall a special meeting of members/shareholders) in order to designate such number of additional individuals who meet the Designee Qualifications ensure that the ZHG Designator composition of the Board is entitled as set forth in this Section 2.01.
(c) Each of the Directors may appoint an Alternate Director from time to so designatetime to act during his absence and such Alternate Director shall be entitled, in which casewhile holding such office at such, any individuals nominated by or at the direction to receive notices of meetings of the Board or any duly-authorized committee thereof for election (if the Director who has appointed the Alternate Director is a member of such committee), and attend and vote as Directors a Director at any such meeting at which the appointing Director is not present and generally to fill any vacancy or newly created directorships on exercise all the powers, rights, duties and authorities and to perform all functions of the appointing Director.
(d) Each of Lotus, Falcon, Gobi, Didi, Nikkei, Nova Compass, Tianhong and Xiaomi shall be entitled to appoint one (1) observer (each an “Observer”) to attend all meetings of the Board shall include and any Board committees that are formed from time to time so long as such designeesentity owns any Company Securities, in each case in a non-voting observer capacity, and the Company shall use its best efforts provide such Observer, concurrently in the same manner as distributed to (x) effect the election of such additional designeesDirectors, whether by increasing the size other voting members of the Board or otherwise, and (y) cause the election members of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation committees of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating copies of all meetings notices, agendas, board materials, information, draft resolutions, minutes, proposed actions by written consent and other communications so distributed, provided, that such individual Observer shall agree to be elected as hold in confidence and trust and to act in a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directorsfiduciary manner with respect to all information provided.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Composition of the Board. (a) From The parties hereto shall ------------------------ take all necessary action as is required under applicable law to cause the Board, effective from and after the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right following size and composition (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the "Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, Composition"): -----------------
(i) the Board shall include: (A) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and the Chief Executive Officer, which initially is ▇▇▇▇▇ ▇. ▇▇▇▇▇ (the "Management Designees"), (B) two individuals designated by -------------------- Positano (the "Positano Designees") and (C) two individuals ------------------ designated jointly by the Positano Designees and the Management Designees (the "Joint Designees"); provided, however, that upon --------------- -------- ------- mutual agreement by the Management Designees and the Positano Designees, the Board may increase the size of the Board, but only by adding a proportionate number of individuals that Management Designees and Positano Designees;
(ii) in the ZHG Designator event of MB's death, (A) so long as his estate owns at least five percent of the Fully-Diluted Shares, such estate shall be entitled to designate to serve nominate his replacement as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or a Management Designee; however (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from Chief Executive Officer shall nominate the Company and a thirty (30) day opportunity to cure. From and after the date on which either replacement Management Designee for MB if his estate owns less than five percent of the Initial ZHG Designees ceases Fully-Diluted Shares or fails to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee exercise the right provided under clause (A);
(iii) the Chairman shall be an Independent ZHG Designee, unless otherwise determined nominated by the Board (excluding any ZHG Designee)Management Designees.
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or resignation without cause) of any ZHG Positano Designee or Management Designee, any individual nominated Positano or, subject to Section 2.1(a), the Management Representatives, respectively, shall have the right to designate a replacement Positano Designee or appointed by or at the direction of the Board or any duly-authorized committee thereof Management Designee, respectively, to fill such vacancy. In the event that a vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, is created at any time and from time to timeby the death, all actions necessary to accomplish disability, retirement, resignation or removal (with or without cause) of any Joint Designee, the same as soon as possible following such designation.
(d) The Company Positano Designees and the Board Management Designees shall take, jointly designate a replacement Joint Designee to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) fill such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018vacancy.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Sources: Governance Agreement (Digitas Inc)
Composition of the Board. (a) From and after the Closing, subject Subject to the terms and conditions of this Article IISection 2.2(a) below, the ZHG Designator business and affairs of the Company shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors be managed by or at under the direction of the Board or a duly-authorized committee thereof Board. The parties hereto and their Permitted Transferees shall include, two (2) individuals that meet the Designee Qualifications take all necessary action as is required under applicable law to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) cause the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by comprising the Board (excluding any ZHG Designee)to be 11.
(b) If at any time Subject to Section 6.1, notwithstanding anything else in this Article II to the ZHG Designator has contrary, the parties hereto and their Permitted Transferees shall take all necessary action as is required under applicable law to cause (i) six Directors designated fewer than by MS to be elected to the total number of individuals that Board (the ZHG Designator is then entitled to designate elected designees pursuant to Section 2.1(athis clause (b), the ZHG Designator “MS Directors”); provided that one MS Director shall have the right be an Independent Director, (but not the obligationii) one Director designated by Ball to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled be elected to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors (such elected designee, the “Ball Director”), (iii) one director to fill any vacancy or newly created directorships on be designated by Hitachi to be elected to the Board shall include (such designees, and elected designee the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise“Hitachi Director”), and (yiv) cause three directors appointed by the election of CFA (such additional designees elected designees, the “Company Directors”), to fill any such newly-created vacancies or be elected to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”Board.
(c) In the event that a vacancy on the Board is created at any time by the death, disability, retirement, resignation or removal (with or resignation without cause) of any ZHG DesigneeMS Director, any individual nominated Ball Director, Hitachi Director or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill Company Director, such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled byby a Director designated by the party that appointed the director who died, a new designee of the ZHG Designator who meets the Designee Qualificationsbecame disabled, and the Company and the Board shall takeretired, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019resigned or was removed; provided, however, that if MS, Ball, Hitachi or the Closing occurs after mailing CEO may choose, in its or his sole discretion, to leave vacant for any period of time any seat on the Company’s proxy statement relating Board to its annual meeting which it or he has the right to designate for election a Director pursuant to this Article II.
(d) Any rights of stockholders MS, Ball, Hitachi or the CEO pursuant to this Section 2, as the case may be, to designate for 2017election to the Board directors, (i) such appointments shall occur immediately after such annual meetingas the case may be, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed transferable to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018any Permitted Transferees.
(e) For any designation pursuant to this Section 2.1 that occurs after So long as Telespazio owns at least 50% of the number of Fully-Diluted Shares owned by Telespazio immediately following the Closing, after the Company’s annual meeting Company shall allow one observer designated by Telespazio to attend all meetings of stockholders for 2017the Board in a nonvoting and non-participatory capacity, such observer to serve at the discretion of the Board, and after the appointments contemplated in Section 2.1(d), in connection with an election of therewith, the Company shall give such observer such notices, minutes, consents and other materials, financial or otherwise, provided to the Directors by the stockholders of as the Company, the ZHG Designator shall identify in its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualificationssole discretion, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directorsso determines.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Composition of the Board. (a) From The Board shall consist of nine directors, of whom three directors will be designated by FP (one of whom shall be an independent director designated by FP), three directors will be designated by the CVC Entities (one of whom shall be an independent director designated by the CVC Entities), one director will be designated by Japan Energy, one director will be the chief executive officer of the Company for so long as he or she is employed by the Company and after one independent director will be designated by the Closing, subject to the terms and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, Chief Executive Officer and the individuals nominated for election as Directors Institutional Shareholders, provided that such independent director collectively designated by or at the direction of Chief Executive Officer and the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6Institutional Shareholders, (i) shall not be either an "Affiliate" or an "Associate" (as such terms are used within the number meaning of individuals that Rule 12b-2 under the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%Exchange Act) of the total number of shares of Common Stock outstanding, Institutional Shareholders or Japan Energy and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee"independent director" (as such term is defined by the rules of the securities exchange or quotation system on which the Common Stock is traded). If the number of directors that comprise the entire Board is increased in accordance with Section 2.04, unless otherwise determined by the number of directors added to the Board (excluding any ZHG Designee)the "ADDITIONAL DIRECTORS") must be a multiple of two, and for every two Additional Directors, FP shall be permitted to designate one such Additional Director and the CVC Entities shall be permitted to designate one such Additional Director.
(b) If at any time Each Shareholder entitled to vote for the ZHG Designator has designated fewer than election of directors to the total number Board agrees that it will vote its Shares or execute written consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of individuals Shareholders) in order to ensure that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction composition of the Board or any duly-authorized committee thereof for election is as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to set forth in this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”2.01.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal The right of each Institutional Shareholder to designate three or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction more members of the Board or any duly-authorized committee thereof pursuant to fill such vacancy this Article 2 shall be, and (i) be reduced to the Company shall use its reasonable best efforts right to cause such vacancy to be filled by, a new designee designate only one member of the ZHG Designator who meets Board at such time as the Designee QualificationsAggregate Ownership of Common Shares by such Institutional Shareholder divided by the Aggregate Ownership of such Common Shares by all Shareholders is less than 10% and (ii) terminate at such time as the Aggregate Ownership of Common Shares by such Institutional Shareholder divided by the Aggregate Ownership of such Common Shares by all Shareholders is less than 5%. The right of Japan Energy to designate one member of the Board, shall terminate at such time as the Aggregate Ownership of Common Shares by Japan Energy and its Permitted Transferees falls below 50% of Japan Energy's Initial Ownership of Common Shares. The obligations imposed on the Company and the Board shall take, Shareholders to give effect to the fullest extent permitted by Law, at rights to designate directors set forth in Section 2.01 shall terminate as to any time and from time Person when such Person's right to time, all actions necessary to accomplish the same as soon as possible following such designationdesignate a director is terminated.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, agrees to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”each individual designated pursuant to Section 2.01(a) or 2.03 to be appointed nominated to serve as a director on the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the ClosingBoard, and to the class of Directors up for election at the Company’s annual take all other necessary actions (including calling a special meeting of stockholders for 2019; provided, however, the Board and/or shareholders) to ensure that if the Closing occurs after mailing composition of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to Board is as set forth in this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less than ninety (90) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors2.01.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Composition of the Board. (a) From Subject to subsections (c), (d) and after (e) below and Section 8(b) of the ClosingCertificate of Designations, subject to Preferences and Rights of the terms and conditions of this Article IIPreferred Shares, the ZHG Designator Board shall have the right consist of nine (but not the obligation9) directors (or such smaller number as may be mutually agreed to designateby DLJMB, ZS, so long as it owns beneficially 25% of its Initial Ownership, and Uhlenhop, so long as he is the individuals nominated for election as Directors by or at the direction Chief Executive Officer of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(aCompany), but subject to seven (7) of whom (including the proviso set forth in Section 2.6, (i) Chairman of the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(aBoard) shall be reduced to nominated by the DLJMB Entities, one (1) Director ifof whom shall be nominated by ZS, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent and one (20%1) of whom shall be Uhlenhop so long as he is the total number Chief Executive Officer of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity he owns beneficially Common Shares and Vested Option Shares in an aggregate amount equal to cure. From and after the date on which either at least 2% of the Fully Diluted Common Shares; PROVIDED, HOWEVER, that, if Uhlenhop is no longer serving as the Chief Executive Officer of the Company (other than as a result of his termination for "Cause" (as defined in the Uhlenhop Employment Agreement)) but he owns beneficially Common Shares and Vested Option Shares in an amount equal to at least 2% of the Fully Diluted Common Shares, the Board shall continue to consist of nine (9) directors (or such smaller number as may be mutually agreed to by DLJMB, ZS, so long as it owns beneficially 25% of its Initial ZHG Designees ceases Ownership, and Uhlenhop, so long as he is the Chief Executive Officer of the Company), six (6) of whom (including the Chairman of the Board) shall be nominated by the DLJMB Entities, one (1) of whom shall be nominated by ZS, one (1) of whom shall be Uhlenhop so long as he owns beneficially Common Shares and Vested Option Shares in an amount equal to at least 2% of the Fully Diluted Common Shares, and one (1) of whom shall be the new Chief Executive Officer of the Company who is duly appointed by the Board; PROVIDED FURTHER, that, notwithstanding his Share ownership, if Uhlenhop is no longer serving as the Chief Executive Officer of the Company or ▇▇▇ ▇▇▇▇▇▇▇▇ Press as a result of his being terminated for "Cause" in accordance with the Uhlenhop Employment Agreement, Uhlenhop will no longer be entitled to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by director of either the Board (excluding any ZHG Designee)Company or ▇▇▇ ▇▇▇▇▇▇▇▇ Press.
(b) If at any time the ZHG Designator has designated fewer than the total number Upon execution of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a)this Agreement, the ZHG Designator parties shall have take all necessary action so that, effective on the right (but not day immediately after the obligation) to designate such number of additional individuals who meet day on which the Designee Qualifications that "Closing" under the ZHG Designator Merger Agreement is entitled to so designateconsummated, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election consist of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇, ▇▇▇▇ ▇▇▇▇ (together▇, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇ ▇▇▇▇▇▇▇ appointed to and four other individuals nominated by DLJMB, as the class nominees of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) DLJMB Entities, ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇, as the nominee of ZS, and ▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇, and each such director shall serve until resignation, removal or replacement in accordance with the terms of this Agreement or, in the case of Uhlenhop, in accordance with the terms of the Uhlenhop Employment Agreement, and the Bylaws.
(c) Subject to subsections (d) and (e) below, the DLJMB Entities, ZS and the Management Shareholders hereby agree to amend the provisions of subsection (a) as may be necessary to change the composition of the Board as may be required by law or by any applicable listing standards or as may be reasonably requested by any underwriter, in each case in connection with the IPO.
(d) Each Shareholder entitled to vote for the election of directors to the Board agrees that he or it shall vote his or its Shares or execute consents, as the case may be, and take all other necessary action (including in order to satisfy any quorum requirement) in order to ensure that the composition of the Board is as set forth in this Section 2.1; PROVIDED, HOWEVER, that none of the DLJMB Entities, ZS or the Management Shareholders shall be appointed required to vote for the nominees of any Shareholder or group of Shareholders under this Agreement if the ownership of Shares by such Shareholders or group at the time of any such vote is less than 25% of such Shareholder's or group's Initial Ownership. No Shareholder shall give any proxy or power of attorney to any Person that permits the holder thereof to vote in his, her or its discretion on any matter that may be submitted to the class Company's shareholders for their consideration and approval, unless such proxy or power of Directors up for election at attorney is made subject to and is exercised in accordance with the Company’s annual meeting provisions of stockholders for 2018this Agreement.
(e) For Notwithstanding any designation pursuant other provision of this Agreement, the number of directors on the Board shall not be reduced below nine (9) at any time prior to the second anniversary of the date of this Section 2.1 that occurs after the ClosingAgreement, after the Company’s annual meeting of stockholders for 2017including, and after the appointments contemplated in Section 2.1(d)without limitation, in connection with an election of Directors by the stockholders operation of subsection (a) or (c) above, without the consent of ZS, so long as it owns beneficially 25% of its Initial Ownership, or Uhlenhop, so long as he is the Chief Executive Officer of the Company; PROVIDED that, in the ZHG Designator event the number of directors comprising the Board is so reduced, then (i) any director nominated by ZS then on the Board shall identify its designees by written notice be removed, (ii) ZS's rights under this Agreement to designate or nominate a director to the Company Board shall automatically terminate and any rights granted to a ZS director under this Agreement shall automatically terminate and be of no less than ninety further force or effect, and (90iii) days prior the DLJMB Entities shall succeed to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant ZS's right to nominate a director under this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors2.1.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
Appears in 1 contract
Sources: Shareholders' Agreement (Von Hoffmann Holdings Inc)
Composition of the Board. (a) Subject to this Article III, each Party will take all action within its respective power, including the voting of its Shares or execution of consents, required to establish the number of Managers on the Board at five and to cause the election of the following natural Persons to the Board Managers who have been nominated by this Section 3.2(a). At least one of the Managers to be appointed by each of NII Telecom and Investor, subject to (i) and (ii) below, will meet the residency requirements under applicable Law to qualify as a Luxembourg manager.
(i) As of the Effective Date and until the Second Closing (if any), (A) Investor will be entitled to nominate two Managers and one observer to the Board (provided that if Investor’s Applicable Ownership Percentage is (y) less than 30%, Investor is only entitled to nominate one Manager and one observer to the Board; or (z) less than 20%, Investor will only be entitled to nominate an observer to the Board) (any Manager appointed by Investor under Section 3.2 being an “Investor Manager”) and (B) NII Telecom will be entitled to nominate the other three Managers (or four or five, as applicable) (any Manager appointed by NII Telecom under Section 3.2 being an “NII Manager”), one of whom shall be designated as the chairman of the Board.
(ii) From and after the Closing, subject Second Closing (if any):
(A) Investor will have the right to nominate three Managers (plus one or two further Managers respectively if NII Telecom is only entitled to appoint one Manager or is not entitled to appoint any Manager pursuant to the terms hereof), one of whom shall be designated as the chairman of the Board, and conditions on Second Closing one NII Manager shall be promptly removed from the Board by a resolution of this Article IIthe Shareholders.
(B) For as long as NII Telecom (together with its Permitted Transferees) maintains an Applicable Ownership Percentage of at least: (1) 30%, the ZHG Designator shall it will have the right (but not the obligation) to designate, nominate two Managers; and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet 20% but less than 30%, it will have the Designee Qualifications right to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a)nominate one Manager.
(C) If NII Telecom’s (together with its Permitted Transferees) Applicable Ownership Percentage is less than 20%, but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall it will only be entitled to designate appoint an observer to serve as Directors pursuant to this Section 2.1(a) the Board and any remaining NII Manager shall be reduced promptly removed from the Board by a resolution of the Shareholders.
(iii) The individuals nominated as of the Effective Date by Investor to one be Investor Managers and by NII Telecom to be its Managers are set forth on Exhibit B.
(1iv) Director ifAny Investor Manager or NII Manager shall, at any timetheir election, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, either (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding be appointed to or (B) be entitled to appoint another Person for appointment to the board of directors (or equivalent body) of any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee)Company’s Subsidiaries.
(b) If at any time The Company and the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designateShareholders will take all reasonably required actions within their control, in which case, any individuals nominated by or at order to elect and maintain a five-Person Board in accordance with the direction terms of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”Agreement.
(c) In If a Shareholder loses the event that right to nominate one or more Managers under this Section 3.2 due to its failure to maintain its required Applicable Ownership Percentage, the other Managers will nominate a vacancy is created at any time replacement for such Manager(s) (and such nomination shall be approved and appointed by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationShareholders).
(d) The Each Shareholder entitled to vote for the election of Managers agrees that it will vote, or cause to be voted, its Shares or execute written consents, as the case may be, and take all other necessary action (including causing the Company to call a special meeting of Shareholders) in order to ensure that the composition of the Board is as set forth in this Agreement and the Board shall take, to Articles and the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018nominations set out herein are effected.
(e) For any designation pursuant Subject to compliance with applicable Law, Investor and NII Telecom shall be permitted to appoint by notice in writing such other Persons as they sees fit as observers (limited to one observer if such Shareholder only has the right under this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(dAgreement to appoint one or two Managers), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator who shall identify its designees by written notice be entitled to the Company no less than ninety attend and speak (90but not vote) days prior to the date of the meeting of stockholders of the Company called for the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose Board and to receive notice of electing Directors, all such meetings and use its reasonable best efforts to cause the election of such individual all board materials provided to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(f) The Company shall Managers at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights time as the Managers. Such observers shall owe the same duty of confidentiality to indemnification, advancement of expenses and exculpation that it provides to other Directorsthe Company as the Managers.
Appears in 1 contract
Composition of the Board. (a) From and after the Closing, subject Subject to the terms and conditions of this Article II, from and after the ZHG Designator Effective Date, Fortissimo shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee Committee thereof shall include, two one (21) individuals that meet individual who meets the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) a Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material TermsFortissimo Initial Designee”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If the Fortissimo Shareholders shall Beneficially Own at any time least (20%) of the ZHG Designator has designated fewer than Outstanding Shares the total number of individuals Company shall procure that the ZHG Designator is then entitled Board shall, prior to designate pursuant to Section 2.1(athe earlier of (i) the first annual meeting of Company and (ii) the next extraordinary general meeting, following the Fortissimo Shareholders’ acquisition of such 20% Beneficial Ownership (the “Next Company AGM/EGM”), include in the ZHG Designator shall have proxy statement for such Next Company AGM/EGM (provided that the right Fortissimo Shareholders' acquisition of such 20% Beneficial Ownership has been notified to the Company not less than 10 trading days prior to the date on which such proxy statement is distributed) a solicitation of the Company shareholders’ affirmative vote in favor of shareholder resolutions approving the appointment, of one (but not 1) additional individual (in addition to the obligationFortissimo Initial Designee) to designate such number of additional individuals designated by Fortissimo (if Fortissimo so designates) who meet meets the Designee Qualifications that to serve as a Director, (the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to “Fortissimo Second Designee”).
(xc) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator Fortissimo shall actually designate pursuant in accordance with this Article II (including with respect to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director the Designee Qualifications), shall be referred to herein as a “ZHG Fortissimo Designee”. The Fortissimo Initial Designee shall be ▇▇▇▇▇ ▇▇▇▇▇, and, if ▇▇▇▇▇▇▇▇▇▇ obtains the right to designate the Fortissimo Second Designee pursuant to Section 2.1(b), the initial Fortissimo Second Designee shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇. Any replacement Fortissimo Designee shall require the approval (not to be unreasonably withheld) of a majority of the non-Fortissimo Designee Directors (the “Approval Requirement”). Subject to Section 2.1(g), if any replacement Fortissimo Designee does not satisfy the Approval Requirement, Fortissimo shall have the right to designate another individual as the replacement Fortissimo Designee (which process may be repeated, subject to Section 2.1(g), until such time as the replacement Fortissimo Designee satisfies the Approval Requirement).
(cd) During the period commencing upon the Effective Date and prior to the appointment of the Fortissimo Second Designee, Fortissimo shall be entitled to designate, one representative of Fortissimo to attend and be heard at all meetings of the Board in a non-voting observer capacity (the “Observer”), provided that (A) such Observer executes a confidentiality agreement in form and substance reasonably satisfactory to the Company, and (B) the Company shall have the right to exclude such Observer from any meeting or portion thereof if the Board determines in good faith that (1) the Observer has (or if Fortissimo or its Affiliates have) a personal interest (as defined in the Companies Law) with respect to the matter being discussed in such meeting, (2) upon advice of counsel, that such exclusion is necessary to preserve attorney-client privilege, or (3) that such exclusion is necessary to protect highly confidential proprietary information. Subject to the foregoing sentence, the Company shall give the Observer copies of all notices, minutes, consents, and other materials provided to the Board at the same time and in the same form that it provides to the directors.
(e) Notwithstanding the foregoing provisions of Section 2.1(a)-(d), the number of individuals that Fortissimo is entitled to designate to serve as Directors and/or an Observer pursuant to Section 2.1 shall be reduced to: (i) one (1) Director and one (1) Observer if, at any time, the Fortissimo Shareholders Beneficially Own at least 10% but less than 19% of the issued and outstanding shares of the Company; (ii) no Directors and one (1) Observer if, at any time, the Fortissimo Shareholders Beneficially Own at least 7.5% but less than 10% of the issued and outstanding shares of the Company; and (iii) no Directors or Observers if, at any time, the Fortissimo Shareholders Beneficially Own less than 7.5% of the issued and outstanding shares of the Company; provided however, that if the Fortissimo Shareholders’ Beneficial Ownership is reduced due to any dilutive actions taken by the Company, including, but not limited to, any issuances of Ordinary Shares, the number of individuals that Fortissimo is entitled to designate to serve as Directors or the Observer shall not be reduced as a consequence of such dilutive actions. Any step-down reductions in the number of individuals that Fortissimo is entitled to designate to serve as Directors or as the Observer pursuant to the immediately preceding sentence is referred to in either case hereinafter as the “Board Stepdown.” Fortissimo undertakes to inform the Company in writing no later than 24 hours after any disposition of Ordinary Shares that results in the occurrence of any Board Stepdown. In the event of a Board Stepdown, (i) with respect to a Fortissimo Designee, Fortissimo shall cause such number of Fortissimo Designee(s) that exceed the number of directors which ▇▇▇▇▇▇▇▇▇▇ is then entitled to designate pursuant hereto to express his or her willingness to resign from the Board to the Board, as promptly as practicable following the date of such Board Stepdown; and (ii) with respect to the Observer, such Observer shall cease to serve as an observer following the applicable Board Stepdown.
(f) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Fortissimo Designee, except in the case of vacancy resulting from, or related to, the Board Stepdown, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee Committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of Fortissimo Designee who has satisfied the ZHG Designator who Approval Requirement and meets the applicable Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationdesignation .
(dg) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no less Not later than ninety (90) 30 days prior to the date such information is required by the Company, the Company shall give Fortissimo written notice of the information it requires with respect to the Fortissimo Designees for purposes of the meeting of stockholders shareholders of the Company to be called for the purpose of electing DirectorsDirectors and when such information is required, and Fortissimo shall provide all such reasonably requested information to the Company as promptly as practicable. So long as an individual designated by a Fortissimo Designee meets, and continues to meet at each time of re-election, the ZHG Designator pursuant to this Section 2.1 meets the applicable Designee Qualifications, the Company shall, to the fullest extent permitted by Law, shall include such individual Fortissimo Designee in the slate of nominees recommended by the Board at any meeting of stockholders shareholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual Fortissimo Designee to the Board, including nominating such individual Fortissimo Designee to be elected as a Director as provided herein, recommending such individualFortissimo Designee’s election, election and soliciting proxies or consents in favor thereof, andin all cases subject to the Board’s obligations under applicable Law; provided however, that if necessaryany Fortissimo Designee is not elected by the Company’s shareholders at such general meeting, increasing the Total Number of Directors.
(f) The Company shall at all times provide each ZHG procure that a vacancy will be created on the Board and Fortissimo shall designate an individual (other than such Fortissimo Designee (in his or her capacity who was not elected by the Company’s shareholders and who otherwise satisfies the requirements with respect to a replacement Fortissimo Designee hereunder) as a member of the Board) with the same rights Fortissimo Designee who shall be appointed to indemnification, advancement of expenses and exculpation that it provides to other Directorsfill such vacancy.
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Composition of the Board. (a) From The Board shall be composed of up to seven (7) directors, out of whom: one (1) director (the "SERIES A PREFERRED SHARES DIRECTOR") shall be designated by written notice to the Company by the holders of the majority of the Series A Preferred Shares (including all Voting Ordinary Shares received upon conversion or reclassification of Series A Preferred Shares) except as set forth below, and after shall be nominated in writing by Ampal (as defined below); one (1) director (the Closing"SERIES B-1 PREFERRED SHARES DIRECTOR") shall be designated by written notice to the Company by the holders of the majority of the Series B-1 Preferred Shares (including all Voting Ordinary Shares received upon conversion or reclassification of the Series B Preferred Shares and upon the conversion or reclassification of the Non-Voting Ordinary Shares), and nominated in writing by Trident Capital Management-II, L.L.C.; subject to the terms right of TCV III (Q), L.P. and conditions entities affiliated therewith ("TCV") set forth below, one (1) director (the "SERIES C-1 PREFERRED SHARES DIRECTOR") shall be designated by written notice to the Company by the holders of this Article II, the ZHG Designator shall have majority of the right Series C-1 Preferred Shares (but not including all Voting Ordinary Shares received upon conversion or reclassification of the obligation) to designateSeries C Preferred Shares and upon the conversion or reclassification of the Non-Voting Ordinary Shares), and the individuals nominated for election as Directors in writing by or at the direction of the Board or a duly-authorized committee thereof shall include, TCV; and two (2) individuals that meet directors (the Designee Qualifications "ORDINARY SHARES DIRECTORS") shall be designated by written notice to the Company by the holders, from time to time, of a majority of the Voting Ordinary Shares (but excluding Voting Ordinary Shares received upon conversion or reclassification of the Preferred Shares and upon the conversion or reclassification of the Non-voting Ordinary Shares); in addition, and subject to the consent in writing by the holders of the majority of each class of shares (excluding holders of Series B-2 Non-voting Preferred Shares, the Series C-2 Non-voting Preferred Shares and Non-voting Ordinary Shares), the Chief Executive Officer of the Company (the "CEO"), shall serve as Directorsa director EX OFFICIO for so long as he is CEO of the Company. The seventh director, who shall be an industry expert (the "ADDITIONAL DIRECTOR") shall be appointed by the majority of the members of the Board. Except as specifically stated in this Section 4.7, any vacancy on the Board may only be filled by the holders of the class of shares or member(s) that had the right to appoint the previous incumbent of such vacancy. Notwithstanding the foregoing provisions of this Section 2.1(aabove said, for so long as the Company has not received written notice to the contrary from Ampal-American Israel Corporation or its representatives ("AMPAL"), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator Ampal shall be entitled to designate to serve appoint one Series A Preferred Shares Director for so long as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership it is a holder of Series A Preferred Shares of the ZHG Entities is less than twenty percent Company or holds, on an as converted basis 4 (20%four) per cent or more of the total number issued and outstanding share capital of shares of Common Stock outstandingthe Company. Notwithstanding the above said, and (ii) for so long as the ZHG Designator Company has not received written notice to the contrary from TCV or its representatives, TCV shall not be entitled to appoint and designate any individuals to serve the Series C-1 Preferred Shares Director for so long as Directors pursuant to this Section 2.1(a) if, TCV holds at any time, (A) the aggregate Total Share Ownership least 1,315,832 Series C Preferred Shares of the ZHG Entities is less than ten percent Company (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by adjusted in the Board (excluding any ZHG Designeeevent of a Recapitalization Event).
(b) If at any time Notwithstanding the ZHG Designator has designated fewer than above said, the total number of individuals that the ZHG Designator is then Founders shall be entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause appoint either ▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ as one of the Ordinary Shares Directors (together, the “Initial ZHG Designees”"FOUNDER APPOINTEE") to be appointed to for so long as (i) the Board immediately after Founders collectively hold 5 (five) percent or more of the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 issued and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing outstanding share capital of the Company’s proxy statement relating to its annual meeting , on an as converted basis, and not more than 50 (fifty) percent of stockholders for 2017, (i) such appointments shall occur immediately after such annual meetingthe issued and outstanding Ordinary Shares, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by Company has not received written notice to the Company no less than ninety contrary from the Founders or their representatives; provided that if neither Founder is employed by the Company, then the holders of a majority of the Preferred Shares (90excluding the Series B-2 Non-voting Preferred Shares and the Series C-2 Non-voting Preferred Shares) days prior may, by written notice, veto the appointment of one Founder, in which case the Founder Appointee shall be the other Founder.
(c) In addition to the date Series A Preferred Shares Director, Series B-1 Preferred Shares Director and the Series C-1 Preferred Shares Director, one authorized representative ("OBSERVER") of each of (i) Trident Capital Management-II, L.L.C. and affiliated entities (collectively, "TRIDENT"), (ii) Eucalyptus Venture Management L.L.C. and affiliated entities (collectively "EUCALYPTUS"), (iii) Israel Seed Limited Partnership and affiliated entities ("ISRAEL SEED"), (iv) subject to the Management Rights Agreement, TCV, (v) Deutsche Bank AG and/or affiliated entities ("DB") and (vi) Sun Microsystems, Inc. shall be entitled to receive notice of and attend all meetings of the meeting of stockholders of Board in a non-voting observer capacity, at its own expense; provided that the Company called for reserves the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant right to this Section 2.1 meets the Designee Qualifications, withhold any information from or to exclude any Observer(s) if the Company shall, to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual to consultation with the Board, including nominating in its reasonable discretion, determines that: (i) the sensitivity or confidentiality concerns relating to the subject or matter specifically being discussed either in the meeting or in writing makes it advisable to exclude such individual Observer(s) or exclude the provision of information to such Observer(s) due to a risk of a conflict of interest for such Observer(s) so excluded, (ii) the disclosure of such information or attendance by such Observers on specifically designated issues or matters could adversely affect the attorney-client privilege between the Company and its counsel or (iii) the law would exclude an officer or director in such circumstances. Each Observer shall have a duty to advise the Board in the event of any issue with respect to which such Observer has or may have a conflict of interest at the earliest possible time but not later than the beginning of the first meeting of the Board in which such issue is discussed or expected to be elected discussed. Trident, Eucalyptus, Israel Seed, TCV, DB and the Observers shall maintain the confidentiality of all financial, confidential and proprietary information obtained by them and shall not make available any information provided by the Company to any competitor or customer of, or vendor to the Company or any affiliate or associate of such entity. For the avoidance of doubt the Observers shall not be liable toward a party hereto as to any action or inaction of the Board. Subject to the above said, each Observer shall be entitled to receive all notices, written documents and materials provided to Directors and to attend and participate in all meetings of the Board. The Observers shall not be entitled to vote. The rights to the Series A Preferred Shares Director (including the Director appointed by Ampal), the Series B-1 Preferred Shares Director, the Series C-1 Preferred Shares Director (including the Director appointed by TCV), the Ordinary Shares Directors (including the Founder Appointee) and the Observers shall each terminate upon a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of DirectorsQualified IPO.
(fd) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnificationthe Series A Preferred Shares Director (including the Director appointed by Ampal), advancement of expenses the Series B-1 Preferred Shares Director, the Series C-1 Preferred Shares Director (including the Director appointed by TCV), the Ordinary Shares Directors (including the Founder Appointee), and exculpation that it provides to other Directorsthe Observers shall each terminate upon a Qualified IPO.
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Composition of the Board. (a) From and after the ClosingEffective Date, subject to the terms and conditions of this Article II, the ZHG Designator S▇▇▇▇▇▇▇ Majority shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee Committee thereof shall include, two four (24) individuals that who meet the Designee Qualifications to serve as Directors. Each such individual whom the S▇▇▇▇▇▇▇ Majority shall actually designate pursuant to this Section 2.1 shall be referred to herein as a “S▇▇▇▇▇▇▇ Designee.” The initial S▇▇▇▇▇▇▇ Designees shall be mutually agreed by the Company and the S▇▇▇▇▇▇▇ Majority, and any replacement S▇▇▇▇▇▇▇ Designees shall require the approval (not to be unreasonably withheld) of a majority of the non-S▇▇▇▇▇▇▇ Designee Directors (the “Approval Requirement”). Subject to Section 2.1(d), if any replacement S▇▇▇▇▇▇▇ Designee does not satisfy the Approval Requirement, the S▇▇▇▇▇▇▇ Majority shall have the right to designate another individual as the replacement S▇▇▇▇▇▇▇ Designee (which process may be repeated, subject to Section 2.1(d), until such time as the replacement S▇▇▇▇▇▇▇ Designee satisfies the Approval Requirement).
(b) Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be S▇▇▇▇▇▇▇ Majority is entitled to designate to serve as Directors pursuant to this Section 2.1(a) 2.1 shall be permanently reduced to to: (i) two (2) Directors if, at any time, the S▇▇▇▇▇▇▇ Stockholders, in the aggregate, Beneficially Own at least 20% of the Outstanding Shares but less than 25% of the Outstanding Shares; (ii) one (1) Director if, at any time, the aggregate Total Share Ownership S▇▇▇▇▇▇▇ Stockholders, in the aggregate, Beneficially Own at least 10% of the ZHG Entities is Outstanding Shares but less than twenty percent (20%) % of the total Outstanding Shares; and (iii) no Directors if, at any time, the S▇▇▇▇▇▇▇ Stockholders, in the aggregate, Beneficially Own less than 10% of the Outstanding Shares. Any step-down reductions in the number of shares of Common Stock outstanding, and (ii) individuals that the ZHG Designator shall not be S▇▇▇▇▇▇▇ Majority is entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities immediately preceding sentence is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (referred to in either case hereinafter as the “Material TermsBoard Stepdown.”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG S▇▇▇▇▇▇▇ Designee, except in the case of vacancy resulting from, or related to, the Board Stepdown, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee Committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of S▇▇▇▇▇▇▇ Designee who has satisfied the ZHG Designator who Approval Requirement and meets the applicable Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) . The Company and will use its reasonable best efforts not to take any action to oppose the Board shall take, to exercise by the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇S▇▇▇▇▇▇▇ ▇Stockholders of any right such S▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, Stockholders may have to cause the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇resignation of a S▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018Designee.
(ed) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in In connection with an election of Directors by the stockholders of the Company, the ZHG Designator S▇▇▇▇▇▇▇ Majority shall identify its designees the S▇▇▇▇▇▇▇ Designee or S▇▇▇▇▇▇ Designees by written notice to the Company no less than ninety one hundred twenty (90120) days prior to the date of the meeting of stockholders of the Company to be called for the purpose of electing Directors. So long as an individual designated by a S▇▇▇▇▇▇▇ Designee meets, and continues to meet at each time of re-election, the ZHG Designator pursuant to this Section 2.1 meets the applicable Designee Qualifications, the Company shall, to the fullest extent permitted by Law, include such individual S▇▇▇▇▇▇▇ Designee in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts to cause the election of such individual S▇▇▇▇▇▇▇ Designee to the Board, including nominating such individual S▇▇▇▇▇▇▇ Designee to be elected as a Director as provided herein, recommending such individualS▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇’s election, election and soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directors.
(fe) The Company shall at all times provide each ZHG S▇▇▇▇▇▇▇ Designee appointed or elected to the Board (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses indemnification and exculpation that it provides to other Directors. In addition, in his or her capacity as a member of the Board or any applicable Committee on which he or she formally serves as a member, such S▇▇▇▇▇▇▇ Designee shall be entitled to receive (i) any and all applicable Director and Committee fees and compensation that are payable to the Company’s non-employee Directors as part of the Company’s director compensation plan, and (ii) reimbursement of all reasonable, documented out-of-pocket expenses that he or she incurs in connection with performing Board and any applicable Committee duties in accordance with the Company’s expense reimbursement policy applicable to non-employee Directors.
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Composition of the Board. (a) From and after Following the Closing, subject to the terms BlackRock and conditions of this Article II, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled to designate to serve as Directors pursuant to this Section 2.1(a) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its reasonable best efforts to cause such vacancy to be filled by, a new designee of the ZHG Designator who meets the Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designation.
(d) The Company and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇M▇▇▇▇▇▇ L▇▇▇▇ shall each use its best efforts to cause the election at each meeting of stockholders of BlackRock of such nominees reasonably acceptable to the Board such that (i) there are no more than 19 Directors; (ii) there are not less than two and not more than four Directors who are members of BlackRock management (each a “Management Designee”); (iii) there are two Directors, each in a different class, who are individuals designated in writing to BlackRock by M▇▇▇▇▇▇ and L▇▇▇▇ (each, a “M▇▇▇▇▇▇ L▇▇▇▇ (together, the “Initial ZHG DesigneesDesignee”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019); provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇any period greater than 90 consecutive days M▇▇▇▇▇▇ L▇▇▇▇ and its Affiliates shall Beneficially Own less than 10% of the BlackRock Capital Stock issued and outstanding, M▇▇▇▇▇▇ L▇▇▇▇ shall promptly cause one of such M▇▇▇▇▇▇ L▇▇▇▇ Designees to resign and the number of M▇▇▇▇▇▇ L▇▇▇▇ Designees permissible hereunder shall be appointed reduced to the class of Directors up one and; provided, further, that if for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, period greater than 90 consecutive days M▇▇▇▇▇▇ L▇▇▇▇ and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders its Affiliates shall Beneficially Own less than 5% of the CompanyBlackRock Capital Stock issued and outstanding, M▇▇▇▇▇▇ L▇▇▇▇ shall promptly cause a second M▇▇▇▇▇▇ L▇▇▇▇ Designee to resign and the ZHG Designator number of M▇▇▇▇▇▇ L▇▇▇▇ Designees permissible hereunder shall identify its designees be reduced to zero; (iv) there are no more than two Directors, each in a different class, who are individuals designated in writing to BlackRock by written notice to the Company no less than ninety (90) days a Person who is a Significant Stockholder and has held such status since prior to the date of the meeting Transaction Agreement (each, a “Significant Stockholder Designee”); (v) there are no more than two Directors, each in a different class, who are individuals designated in writing to BlackRock by Barclays Bank PLC; and (vi) the remaining Directors are Independent Directors.
(b) Following the Closing, upon the resignation, retirement or other removal from office of stockholders of any Management Designee or M▇▇▇▇▇▇ L▇▇▇▇ Designee (i) BlackRock or M▇▇▇▇▇▇ L▇▇▇▇, as the Company called for case may be, shall be entitled promptly to designate a replacement Management Designee or M▇▇▇▇▇▇ L▇▇▇▇ Designee, as the purpose of electing Directors. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 case may be, who meets the Designee Qualifications, the Company shall, qualifications of a Director and is reasonably acceptable to the fullest extent permitted by Law, include such individual in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and (ii) BlackRock and M▇▇▇▇▇▇ L▇▇▇▇ shall each use its reasonable best efforts to cause the appointment or election of such individual to the Board, including nominating such individual to be elected replacement designee as a Director as provided herein, recommending such individual’s election, soliciting proxies by the other Directors or consents in favor thereof, and, if necessary, increasing by the Total Number stockholders of DirectorsBlackRock.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
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Composition of the Board. (ai) From Subject to Section 17(a)(iv) below, two directors of the Board (each, a “Director”) shall be individuals designated in writing to the Company by MDLZ (each, a “MDLZ Designee”), which individuals shall at all times be executive officers of MDLZ and after shall initially be the ClosingExecutive Vice President and General Counsel and the Executive Vice President and Chief Financial Officer.
(ii) Upon the resignation, retirement or other removal of any MDLZ Designee, MDLZ shall be entitled, subject to the terms and conditions of this Article IISection 17(a)(iv) below, the ZHG Designator shall have the right (but not the obligation) to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, two (2) individuals that meet the Designee Qualifications to serve as Directors. Notwithstanding the foregoing provisions of this Section 2.1(a), but subject to the proviso set forth in Section 2.6, (i) the number of individuals that the ZHG Designator shall be entitled promptly to designate a replacement MDLZ Designee to serve as Directors pursuant to this Section 2.1(abecome a Director.
(iii) shall be reduced to one (1) Director if, at any time, the aggregate Total Share Ownership Each of the ZHG Entities is less than twenty percent (20%) of the total number of shares of Common Stock outstanding, and (ii) the ZHG Designator shall not be entitled to designate any individuals to serve as Directors pursuant to this Section 2.1(a) if, at any time, (A) the aggregate Total Share Ownership of the ZHG Entities is less than ten percent (10%) of the total number of shares of Common Stock outstanding or (B) any ZHG Entity breaches Article III, Section 4.1, Section 4.3 or Section 4.6 of this Agreement (the “Material Terms”) in any material respect and such breach continues after written notice from the Company and a thirty (30) day opportunity to cure. From and after the date on which either of the Initial ZHG Designees ceases to serve as a Director, not more than one ZHG Designee at any time may be an Affiliated ZHG Designee, and any other ZHG Designee shall be an Independent ZHG Designee, unless otherwise determined by the Board (excluding any ZHG Designee).
(b) If at any time the ZHG Designator has designated fewer than the total number of individuals that the ZHG Designator is then entitled to designate pursuant to Section 2.1(a), the ZHG Designator shall have the right (but not the obligation) to designate such number of additional individuals who meet the Designee Qualifications that the ZHG Designator is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy or newly created directorships on the Board shall include such designees, and the Company shall use its best efforts to (x) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (y) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies. Each such individual whom the ZHG Designator shall actually designate pursuant to this Section 2.1 and who qualifies to serve and is thereafter elected as a Director shall be referred to herein as a “ZHG Designee”.
(c) In the event that a vacancy is created at any time by the death, disability, retirement, removal or resignation of any ZHG Designee, any individual nominated or appointed by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company Holders shall use its reasonable best efforts to cause such vacancy give effect to Section 17(a)(i); in particular, (A) each Holder shall procure that the directors of the Board nominated by it shall vote in favor of appointing each MDLZ Designee and against the removal of any MDLZ Designee at each relevant meeting of the Board or of any committee of the Board, (B) the Company shall ensure that each MDLZ Designee is proposed to serve as a Director at each annual or special meeting of the Company at which directors are to be filled byelected, (C) each Holder shall procure that the directors of the Board nominated by it shall recommend that the Company’s stockholders vote in favor of appointing each MDLZ Designee and against the removal of any MDLZ Designee, (D) each Holder shall vote all the stock that it holds or controls (and shall procure that each of its Affiliates votes all stock that it holds or controls) in favor of appointing each MDLZ Designee as a Director and against the removal of any MDLZ Designee as a Director, and (E) no Holder (other than MDLZ) shall take any action to remove, or oppose the appointment of, a new designee of the ZHG Designator who meets the MDLZ Designee Qualifications, and the Company and the Board shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same as soon as possible following such designationa Director.
(div) The Company If MDLZ and the Board shall take, to the fullest extent permitted by Law, all actions necessary, including increasing the Total Number of Directors, to cause ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇ (together, the “Initial ZHG Designees”) to be appointed to the Board immediately after the Closing, with (x) ▇▇. ▇▇▇▇▇▇▇▇ appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019 and (y) ▇▇. ▇▇▇▇ appointed to replace ▇▇▇▇▇ ▇▇▇▇▇▇▇, who is expected to resign in connection with the Closing, and to the class of Directors up for election at the Company’s annual meeting of stockholders for 2019; provided, however, that if the Closing occurs after mailing of the Company’s proxy statement relating to its annual meeting of stockholders for 2017, (i) such appointments shall occur immediately after such annual meeting, and (ii) ▇▇. ▇▇▇▇▇▇▇▇ shall be appointed to the class of Directors up for election at the Company’s annual meeting of stockholders for 2018.
(e) For any designation pursuant to this Section 2.1 that occurs after the Closing, after the Company’s annual meeting of stockholders for 2017, and after the appointments contemplated in Section 2.1(d), in connection with an election of Directors by the stockholders of the Company, the ZHG Designator shall identify its designees by written notice to the Company no Affiliates beneficially own less than ninety (90) days prior to the date of the meeting of stockholders 8% of the Company called for Shares, then MDLZ shall promptly cause one of such MDLZ Designees to resign and the purpose number of electing DirectorsMDLZ Designees permissible hereunder shall be permanently reduced to one. So long as an individual designated by the ZHG Designator pursuant to this Section 2.1 meets the Designee Qualifications, If MDLZ and its Affiliates beneficially own less than 5% of the Company shallShares, then MDLZ shall promptly cause a second MDLZ Designee to resign and the fullest extent permitted by Law, include such individual in the slate number of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, and use its reasonable best efforts MDLZ Designees permissible hereunder shall be permanently reduced to cause the election of such individual to the Board, including nominating such individual to be elected as a Director as provided herein, recommending such individual’s election, soliciting proxies or consents in favor thereof, and, if necessary, increasing the Total Number of Directorszero.
(f) The Company shall at all times provide each ZHG Designee (in his or her capacity as a member of the Board) with the same rights to indemnification, advancement of expenses and exculpation that it provides to other Directors.
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