Designation of Directors (a) Following the automatic conversion of all Class B Common Stock into Class A Common Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation: (i) the Board shall adopt an amendment to the Bylaws of the Company establishing nine as the number of directors which shall constitute the whole Board and (ii) the Class B Directors serving on the Board immediately preceding such conversion shall continue to serve on the Board as Class A Directors until their successors are duly elected and qualified or until their earlier death, resignation or removal.
(b) From and after the automatic conversion of all Class B Stock into Class A Stock pursuant to subsection (c)(iii)(B) of Article FOURTH of the Certificate of Incorporation, at any time that ▇▇▇▇▇ ▇▇▇▇▇▇▇ or a Member Beneficially Owns one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock, such party shall have the option, in its sole discretion, to notify the Company of such party's designee or designees to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of stockholders of the Company held to elect directors. The Board or its nominating committee shall include such designee or designees in the slate of nominees to be recommended by the Board to the stockholders for election as a director or directors at the next meeting of the stockholders of the Company held to elect directors; PROVIDED, HOWEVER, that the maximum number of persons so designated by such party shall be equal to the result (rounded to the nearest whole number) of applying the following formula:
(c) At any time a Person who has been designated by Apollo and is not otherwise a Person whose primary business is the design, construction, marketing and/or selling of single-family homes, townhomes and/or condominiums (an "ELIGIBLE HOLDER") Beneficially Owns, as the result of a transfer of Class A Common Stock or Class B Common Stock by Apollo to such Eligible Holder, one-ninth (1/9) or more of the total number of the then issued and outstanding shares of Class A Common Stock and Class B Common Stock, taken in the aggregate, such Eligible Holder shall have the option, in its sole discretion, to notify the Company of such Eligible Holder's designee to be included in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of stockholders of the Company held to elect directors, provided that such Eligible Holder continues to hold such number of shares through the date of such meeting. The Board or its nominating committee shall include such designee in the slate of nominees to be recommended by the Board to the stockholders for election as a director at the next meeting of the stockholders of the Company held to elect directors. Notwithstanding anything to the contrary contained herein, an Eligible Holder shall not be entitled to designate more than one such designee. Notwithstanding anything to the contrary contained herein, Apollo may designate only one Person as an Eligible Holder during the term of this Agreement; PROVIDED, HOWEVER, that nothing in this subsection 5(c) shall limit Apollo's other rights to designate directors in accordance with subsection 5(b).
(d) In the event that a person nominated and elected to the Board pursuant to subsection 5(b) or 5(c) shall cease to serve as a director for any reason, a successor shall be designated and nominated in the same manner and procedure as such former director was designated and nominated pursuant to subsection 5(b) or 5(c).
(e) With respect to any Class A Director seat on the Board which is not to be filled pursuant to subsections 5(b), 5(c) or 5(d), the Board shall recommend to the stockholders of the Company for election as a director any person designated by a majority of the Board to fill such seat.
(f) Each party hereto shall take such action as may be required so that all Class A Common Stock Beneficially Owned by it and all its Affiliates are voted, at any meeting of the stockholders of the Company held to elect directors, for the persons nominated to the Board pursuant to subsection 5(b), 5(c), 5(d) or 5(e). Each party and all its Affiliates, as Class A Stockholders, shall be present, in person or by proxy, at all meetings of stockholders of the Company so that all Class A Common Stock Beneficially Owned by such party and its Affiliates may be counted for the purpose of determining the presence of a quorum at such meetings.
(g) Upon request by Apollo, one of the directors designated by Apollo in accordance with subsection 5(b) shall (i) serve on the Compensation Committee of the Board so long as such director is an independent director under Delaware law (it being agreed that being an employee or otherwise a representative of Apollo shall not by itself disqualify any such director from being independent) and (ii) serve on the Executive Committee, if any, of the Board (it being agreed that the Company shall be under no obligation to establish an Executive Committee).
The Board of Directors 17. The Board of Directors, Appointment and Dismissal of Directors
17.1. The Board of Directors shall consist of up to five (5) directors, which will be appointed as follows:
17.1.1. For as long as L C▇▇▇▇▇▇▇▇ and its Permitted Transferees collectively hold at least the L C▇▇▇▇▇▇▇▇ Entitlement Holdings Threshold, L C▇▇▇▇▇▇▇▇ shall have the right to appoint two (2) directors to the Board of Directors; provided, however, that in the event that L C▇▇▇▇▇▇▇▇ and its Permitted Transferees collectively hold below the L C▇▇▇▇▇▇▇▇ Entitlement Holdings Threshold but collectively more than 30% of the L C▇▇▇▇▇▇▇▇ SPA Shares, L C▇▇▇▇▇▇▇▇ shall have the right to appoint one (1) director to the Board of Directors (each appointee of L C▇▇▇▇▇▇▇▇ shall be referred to as a “L C▇▇▇▇▇▇▇▇ Director” and collectively as the “L C▇▇▇▇▇▇▇▇ Directors”). The L C▇▇▇▇▇▇▇▇ Directors shall not be a legal or financial adviser of L C▇▇▇▇▇▇▇▇ or its Affiliates; provided, however, that, individuals employed by L C▇▇▇▇▇▇▇▇ or its Affiliates, including those in a legal or financing role, will not be restricted from serving as L C▇▇▇▇▇▇▇▇ Directors. The Company shall cause each of its Subsidiaries to maintain the same Board of Directors structure with the same representation of the Shareholders, to the extent permitted by applicable law of the jurisdiction in which such Subsidiary is formed.
17.1.2. O▇▇▇ ▇▇▇▇▇ and their Permitted Transferees, acting jointly, shall have the right to appoint three (3) directors to the Board of Directors, one of whom shall serve as the chairman of the Board of Directors (the “Chairman”). For so long as O▇▇▇ ▇▇▇▇▇▇▇▇ controls OS Investments, O▇▇▇ ▇▇▇▇▇ shall appoint O▇▇▇ ▇▇▇▇▇▇▇▇ as one of its directors and H▇▇▇▇▇▇▇ shall serve as Chairman.
17.2. A Shareholder that is entitled to appoint a Director to the Board of Directors shall be entitled to dismiss or replace such Director. Appointment, dismissal and replacement of a Director shall be effected by furnishing a Written notification to the Company, signed by the Shareholder entitled to effect such appointment, replacement or removal, and shall become effective on the date fixed in the notice or upon receipt of the notice by the Company, whichever is later.
17.3. All notices of meetings of the Board of Directors shall state the date, time and place of the meeting, and the nature of business proposed to be transacted thereat, and shall be given to all Directors in writing sent by electronic mail or by overnight courier. Notices of meeting of the Board of Directors shall be dispatched to all Directors not less than seven (7) days before the proposed date for such meeting, unless all the Directors agree In Writing to a shorter notice period. Notwithstanding the foregoing, in the event that the Chairman determines that there is an urgent material matter that requires action by the Board of Directors, a notice of the meeting of the Board of Directors may be dispatched to all Directors not less than twenty-four (24) hours before the Board of Directors meeting.
17.4. If a Director has appointed an Alternate Director (as defined below) for himself, notice shall be provided both to the Director and to the Alternate Director. Notice to a Director which is a corporation shall be delivered to the Corporate Representative.
17.5. The details of a Director, Alternate Director or Corporate Representative appearing in the Register of Directors which the Company maintains or which have been notified to the Company In Writing together with a request that these details be used for the purposes of delivery of notices, shall be the address and other details of the Director for the purposes of delivery of notices to him.
17.6. Any member of the Board of Directors may participate and act at any meeting through the use of a conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. The attendance of any Director at a meeting of the Board of Directors shall constitute a waiver of notice of such meeting. Notwithstanding the nature of the business set forth on the applicable notice, the Directors may transact business at a Board of Directors meeting other than as set out in the applicable notice of meeting delivered to the Directors. The Board of Directors shall meet at least bi-annually and at such other times as determined by the Chairman or pursuant to applicable law and, to the extent possible, the Directors will consult with each other regarding the scheduling of Board of Directors meetings.
17.7. The quorum required to commence a meeting of the Board of Directors shall be a majority of the members of the Board of Directors then serving (provided that at least one of whom will be an L C▇▇▇▇▇▇▇▇ Director). If a quorum is not present at a meeting of the Board of Directors within thirty (30) minutes of the time set for such meeting, the meeting shall be adjourned and postponed to the same time three (3) days thereafter. If a quorum is not present at such reconvened meeting of the Board of Directors within thirty (30) minutes of the time set for such reconvened meeting, such reconvened meeting shall again be adjourned and postponed to the same time three (3) days thereafter. At any such second reconvened meeting (and only at such meeting), a majority of the Directors then serving shall constitute quorum, irrespective of whether an L C▇▇▇▇▇▇▇▇ Director is represented at such second reconvened meeting.
17.8. Subject to the provisions of Article 22 (Protective Covenants) hereof: (a) the Board of Directors may take action upon a majority of the votes of the members of the Board of Directors present at a meeting of the Board of Directors at which quorum as provided in Article 18.7 is present, and (b) each member of the Board of Directors shall have one (1) vote at all meetings of the Board of Directors attended by him or her; provided, however, that (x) O▇▇▇ ▇▇▇▇▇▇▇▇, for the period he is a Director, shall have such number of additional votes (in addition to his own vote) that equals to the number of the Directors that O▇▇▇ ▇▇▇▇▇ is entitled to appoint, but has failed to so appoint at that time (and/or that O▇▇▇ ▇▇▇▇▇ has appointed, but who failed to attend the relevant meeting) and (y) to the extent L C▇▇▇▇▇▇▇▇ is entitled to appoint two Directors pursuant to Section18.1.1, any L C▇▇▇▇▇▇▇▇ director who is appointed shall be entitled to an additional vote in the event the second L C▇▇▇▇▇▇▇▇ Director has not been appointed (or that has been appointed, but failed to attend the relevant meeting).
17.9. The Company shall reimburse the Directors for their respective reasonable out-of-pocket expenses incurred in attending Board of Directors meetings or meetings of Board of Directors committees, promptly upon presentation of receipts. Subject to the foregoing, Directors shall not be entitled to any per-diem or other remuneration in connection with their service on the Board of Directors.
17.10. Subject to the provisions of any law, a Director who has ceased to serve as Director is eligible to be re-appointed.
17.11. Subject to the provisions of any law, the office of a Director shall be vacated (including the office of an Alternate Director and a Corporate Representative) automatically in each of the following events:
(a) upon his death;
(b) if he is declared to be legally incompetent;
(c) if he is declared bankrupt, or if the Director is a corporation, if a liquidator, receiver, special manager or trustee (in each case temporary or permanent) is appointed for the corporation or its assets within the context of a creditors scheme of arrangement or an order of stay of proceedings;
(d) if he resigns from office by written notice to the Company, the Chairman or the Board of Directors, in which case the office of the Director shall be vacated on the date of service of notice or at such later date specified in the notice;
(e) if his term of office has terminated in accordance with the provisions of these Articles;
(f) if the Director is convicted in a final judgment of an offence of a nature which disqualifies a person from serving as a company director; or
(g) if a court of competent jurisdiction decides to terminate his office in a decision or judgment for which no stay of enforcement granted.
Composition of the Board of Directors (a) Upon the occurrence of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Compensation of Directors Directors on the Board shall not be entitled to receive a fee for the director’s services as a director on the Board.
Parent Board of Directors The Board of Directors of Parent will take all actions necessary such that two members of Company's Board of Directors reasonably acceptable to Parent, at least one of whom is an independent director of the Company's Board of Directors, shall be appointed to Parent's Board of Directors as of the Effective Time with a term expiring at the next annual meeting of Parent's stockholders.