Right to Nominate Directors. 6.1.1 After the date hereof, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”): (a) for so long as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇; (b) for so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is the Chief Financial Officer of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; (c) until the expiration of the term of office of the Class III Directors in office on the date hereof, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and (d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement. 6.1.2 The remaining Directors will be nominated by the Nominating Committee in accordance with its policies and procedures. 6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors. 6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice. 6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association. 6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree to take all necessary and desirable actions within their control to accomplish the same. The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.6. 6.1.7 The Company agrees to include, in the slate of nominees recommended by the Board for election at any meeting of shareholders called for the purpose of electing directors, the Persons nominated pursuant to this Article VI (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees and, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties shall take all necessary and desirable actions within their control to enable the Shareholder Parties to nominate their respective Shareholder Designees. 6.1.8 Each member of the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association of the Company, Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenses.
Appears in 3 contracts
Sources: Investor Rights Agreement (Daily Mail & General Trust PLC), Investor Rights Agreement (Cazoo Group LTD), Investor Rights Agreement (Ajax I)
Right to Nominate Directors. 6.1.1 After (a) Following the date hereofClosing Date, the Company and the Shareholder Stockholder Parties shall shall, as promptly as practicable, take all necessary and desirable actions within their control its control, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):Board:
(ai) for so long as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is TRP holds at least 10% of the Chief Executive Officer issued and outstanding shares of the Company, two individuals designated by TRP;
(ii) for so long as the Sponsor, or, together with his Affiliatesin case the Sponsor is dissolved, Beneficially Owns at least five the individuals identified in Exhibit A collectively, holds three percent (53%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;two individuals designated by the Sponsor (or in case the Sponsor is dissolved, the individuals identified in Exhibit A collectively), one of whom will be an independent director (and to qualify as “independent” shall meet the requirements of any applicable laws and the listing standards of NASDAQ, as determined by the Board), and
(biii) for so long as ▇M▇▇▇▇▇▇ ▇▇▇▇▇▇ is (who shall initially be a Class III director and the Chief Financial Officer chairperson of the CompanyBoard), ▇for so long as M▇▇▇▇▇▇ ▇▇▇▇▇▇;
(c) until ▇ is the expiration chief executive officer of the term of office of Company or he, together with the Class III Directors in office trusts identified on the date hereofExhibit B, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and
(d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (holds at least 10%) or more % of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement.
6.1.2 (b) The remaining Directors directors (all of which shall qualify as independent directors under the requirements of any applicable laws and the listing standards of NASDAQ, as determined by the Board) will be nominated by the Nominating Committee in accordance with its policies and procedures. The initial composition of the Nominating Committee shall be agreed by M▇▇▇▇▇▇ ▇▇▇, one director nominated by TRP and one director nominated by the Sponsor.
6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of AssociationOrganizational Documents.
6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in (d) In the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by TRP or the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not electedSponsor, the remaining directors and the Company shall shall, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), cause such open seat the vacancy created thereby to be filled by a new member designated in writing nominated by the Shareholder Party that designated such Shareholder DesigneeSponsor or TRP, as applicable, as soon as possible, and the Company hereby agrees to take, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), at any time and the Shareholder Parties hereby agree from time to take time, all actions necessary and desirable actions within their control to accomplish the same. .
(e) The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, as applicableagrees, to the Companyfullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.6.
6.1.7 The Company agrees to include, in the slate of nominees recommended by the Board for election at any meeting of shareholders stockholders called for the purpose of electing directors, the Persons persons nominated pursuant to this Article VI Section 2 (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees and, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties directors shall take all necessary and desirable actions within their control corporate action, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to (x) enable the Shareholder Parties Sponsor and TRP to nominate their respective Shareholder Designeesdesignated individuals, and (y) designate the requisite number of additional individuals specified by the Sponsor or TRP to fill such newly created vacancies or to fill any other existing vacancies, as warranted.
6.1.8 (f) Each member of the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association Organizational Documents of the Company, applicable Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenses.
Appears in 1 contract
Sources: Merger Agreement (Acamar Partners Acquisition Corp.)
Right to Nominate Directors. 6.1.1 After the date hereof, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control 5.1. Subject to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):Section 6.1:
(a) for so long SSRI shall be entitled to designate such number of individuals (the “SSRI Director Nominees”), to be nominated and, if elected, to serve as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer members of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) board of directors of the issued and outstanding voting shares Company (the “Board of Directors”) at each meeting of shareholders of the CompanyCompany (the “Shareholders”) at which directors of the Company are to be elected, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇as is equal to the lesser of: (i) one less than the number which constitutes a majority of the number of directors comprising the Board of Directors and (ii) SSRI’s Percentage multiplied by the number of directors comprising the Board of Directors (rounded to the closest whole number of directors), provided that each SSRI Director Nominee consents in writing to serve as a director and is eligible under the BCBCA to serve as a director;
(b) for so long the Company shall take all steps as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is may be necessary to appoint the Chief Financial Officer SSRI Director Nominees to the Board of Directors as of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇Closing Time;
(c) until the expiration of the term of office of the Class III Directors in office on the date hereof, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and
(d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement.
6.1.2 The remaining Directors will be nominated by the Nominating Committee in accordance with its policies and procedures.
6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association.
6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat the SSRI Director Nominees to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree to take all necessary and desirable actions within their control to accomplish the same. The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.6.
6.1.7 The Company agrees to include, included in the slate of nominees recommended proposed by the Board Company to the Shareholders for election as directors at each meeting of the Shareholders at which directors are to be elected;
(d) the Company shall use all reasonable efforts to cause the election of the SSRI Director Nominees, including soliciting proxies in favour of the election of the SSRI Director Nominees;
(e) the Company shall notify SSRI in writing immediately upon determining the date of any meeting of shareholders called for the purpose of electing directors, the Persons nominated pursuant to this Article VI (to the extent that Shareholders at which directors of such nominee’s class the Company are to be elected at such meeting, for so long as and SSRI shall advise the Company and the Board is classifiedof Directors of the names of the SSRI Director Nominees within 10 Business Days after receiving such notice;
(f) if SSRI does not advise the Company and the Board of Directors of the SSRI Director Nominees within the time set forth in Section 5.1(e), then SSRI will be deemed to nominate and recommend each such individual have designated its incumbent nominees for nomination for election at the relevant meeting of the Shareholders pursuant to be elected Section 5.1(a); and
(g) if any SSRI Director Nominee ceases to hold office as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees andCompany for any reason, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties shall take all necessary and desirable actions within their control to enable the Shareholder Parties to nominate their respective Shareholder Designees.
6.1.8 Each member of the Board SSRI shall be entitled to the same rights nominate an individual to replace him or her and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors and provide them with director and officer insurance promptly take all steps as may be necessary to appoint such individual to the same extent it indemnifies, exculpates, reimburses and provides insurance for Board of Directors to replace the other members of the Board pursuant SSRI Director Nominee who has ceased to the Memorandum and Articles of Association of the Company, Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenseshold office.
Appears in 1 contract
Right to Nominate Directors. 6.1.1 (a) After the date hereofhereof and until the Termination Date (as defined in Section 3 herein), the Company Parent and the Shareholder Parties Stockholders shall take all necessary and desirable actions within their control to cause the nominating and corporate governance committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):
): B▇▇▇ ▇▇▇▇, H▇▇▇▇▇▇ ▇▇▇▇▇, D▇▇▇▇ ▇▇▇▇▇▇, M.D., A▇▇▇ ▇. ▇▇▇▇▇▇, PhD (aHon) for so long (as Non-Executive Chairman of the Board), T▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, T▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(b) for so long as ▇M▇▇▇▇▇▇ ▇▇▇▇▇▇ is the Chief Financial Officer of the Company, ▇and S▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇;
(c) until the expiration of the term of office of the Class III Directors in office on the date hereof, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and
(d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement▇.
6.1.2 The remaining Directors will be nominated by the Nominating Committee in accordance with its policies and procedures.
6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association.
6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree Parent agrees to take all necessary and desirable actions within their control action to accomplish (i) call, or cause the same. The Sponsor and DMGV shall have Board to call, a meeting of stockholders of the right Parent as may be necessary to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either cause the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, election as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee directors of those individuals nominated in accordance with this subsection 6.1.6.
6.1.7 The Company agrees Agreement and to (ii) include, in the slate of nominees recommended by the Board for election at any meeting of shareholders stockholders called for the purpose of electing directorsdirectors between the date hereof and the Termination Date (or in any election by written consent), the Persons persons nominated pursuant to this Article VI (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) Section 1 and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company Parent shall use its commercially reasonable efforts to support the election of the Shareholder Designees Directors and, in any event, shall use not less than the efforts used by the Company Parent to obtain the election of any other nominee nominated by it to serve on the Board. The Company Parent and the Shareholder Parties Stockholders shall take all necessary and desirable actions within their control to enable the Shareholder Parties Nominating Committee and/or the Board to nominate their respective Shareholder Designeesthe Directors.
6.1.8 Each member (c) The chairman of the Board shall be entitled a non-executive chairman, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the same rights Board or otherwise enumerated in an agreement between the Parent and privileges the chairman. The Non-Executive Chairman shall initially be A▇▇▇ ▇. ▇▇▇▇▇▇.
(d) Directors may be removed from office only in accordance with the provisions contained in the Parent’s bylaws and certificate of incorporation, as amended from time to time (the “Organizational Documents”), and Delaware law. In the event that a vacancy is created on the Board at any time by the death, disability, retirement, resignation or removal of any of the above-referenced Director, the Parent and each Stockholder, severally and not jointly, shall take all necessary action as will result in the election or appointment of such individual as may be selected by the Board or the Nominating Committee of the Board to fill such vacancy.
(e) The Board shall maintain committees in accordance with the Organizational Documents as well as the applicable to all other requirements of Nasdaq. The Parent and each of the Stockholders agrees that, following the consummation of the Merger, the members of the Board generally or to which all such members audit, compensation, and nominating committees of the Board are entitledshall be as set forth on Exhibit B hereto or as otherwise determined by the Board. In furtherance Upon the death, disability, retirement, resignation or removal of any Director, such Director shall also be removed from the foregoing, the Company shall indemnify, exculpate, committees on which such Director serves and reimburse fees and expenses of the Directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association of the Company, Law may in its discretion appoint alternative Directors or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard newly-appointed director to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expensescommittee.
Appears in 1 contract
Sources: Stockholders Agreement (AeroClean Technologies, Inc.)
Right to Nominate Directors. 6.1.1 7.1.1 After the date hereof, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):
(a) for so long as D▇▇ ▇▇▇▇▇▇ together with his Affiliates, Beneficially Owns any of the issued and outstanding Ordinary Shares of the Company, seven (7) individuals who will initially be: D▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, orIgor Lychagov, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(b) for so long as ▇A▇▇▇▇▇▇ ▇▇▇▇▇▇ is the Chief Financial Officer of the Company, ▇▇▇Sir D▇▇▇▇ ▇▇▇▇▇▇, Dr. S▇▇▇▇ ▇▇▇▇▇, J▇▇▇ ▇▇▇▇▇▇ and D▇▇▇▇ ▇▇▇▇▇. In the event that the size of the Board reduces to nine (9) members in accordance with section 6.1then the number of nominated individuals under this section 7.1.1
(a) shall be six (6) individuals and J▇▇▇ ▇▇▇▇▇▇ shall no longer be a nominated individual;
(cb) until for the expiration period of 12 months from the date hereof and for so long as Sponsor Group Beneficially Owns any of the term of office issued and outstanding Ordinary Shares of the Class III Directors in office on the date hereofCompany, one individual two (2) individuals designated in writing by the Sponsor, who at least one of whom shall initially be as specified in satisfy the Business Combination Agreementindependence criteria of the applicable national exchange on which the Ordinary Shares are then listed; and
(dc) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time for so long as the DMGV Sponsor Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Companyhas nomination rights pursuant to Section 7.1.1(b), one individual designated in writing by DMGV, who shall initially director to be as specified in the Business Combination Agreement.
6.1.2 The remaining Directors will be nominated mutually determined by the Nominating Committee in accordance with its policies and proceduresthe Sponsor Group, who shall satisfy the independence criteria of the applicable national exchange on which the Ordinary Shares are then listed.
6.1.3 7.1.2 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 7.1.3 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association.
6.1.6 7.1.4 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree to take all necessary and desirable actions within their control to accomplish the same. The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place, provided that the Board shall be notified in advance with regard to the identity of the replacement Shareholder Designee. If either the Sponsor or DMGVSponsor, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.67.1.4, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGVSponsor, as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.67.1.4.
6.1.7 7.1.5 The Company agrees to include, in the slate of nominees recommended by the Board for election at any meeting of shareholders called for the purpose of electing directors, the Persons nominated pursuant to this Article VI VII (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees and, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties shall take all necessary and desirable actions within their control to enable the Shareholder Parties to nominate their respective Shareholder Designees.
6.1.8 7.1.6 Each member of the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association of the Company, Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenses.
Appears in 1 contract
Sources: Investor Rights Agreement (Armada Acquisition Corp. I)
Right to Nominate Directors. 6.1.1 7.1.1 After the date hereof, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):
(a) for so long as ▇▇▇ ▇▇▇▇▇▇ together with his Affiliates, Beneficially Owns any of the issued and outstanding Ordinary Shares of the Company, seven (7) individuals nominated by ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇who will initially be: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(b) for so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is the Chief Financial Officer of the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Dr. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and one other director to be nominated by ▇▇▇ ▇▇▇▇▇▇ at his discretion from time to time. In the event that the size of the Board reduces to nine (9) members in accordance with section 6.1 then the number of nominated individuals under this section 7.1.1
(a) shall be six (6) individuals and ▇▇▇▇ ▇▇▇▇▇▇ shall no longer be a nominated individual;
(cb) until for the expiration period of 12 months from the date hereof and for so long as Sponsor Group Beneficially Owns any of the term of office issued and outstanding Ordinary Shares of the Class III Directors in office on the date hereofCompany, one individual two (2) individuals designated in writing by the Sponsor (or the Sponsor’s designated representative), who at least one of whom shall initially be as specified in satisfy the Business Combination Agreementindependence criteria of the applicable national exchange on which the Ordinary Shares are then listed; and
(dc) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time for so long as the DMGV Sponsor Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Companyhas nomination rights pursuant to Section 7.1.1(b), one individual designated in writing by DMGV, who shall initially director to be as specified in the Business Combination Agreement.
6.1.2 The remaining Directors will be nominated mutually determined by the Nominating Committee in accordance with its policies and proceduresthe Sponsor (or the Sponsor’s designated representative), who shall satisfy the independence criteria of the applicable national exchange on which the Ordinary Shares are then listed.
6.1.3 7.1.2 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 7.1.3 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association.
6.1.6 7.1.4 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree to take all necessary and desirable actions within their control to accomplish the same. The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place, provided that the Board shall be notified in advance with regard to the identity of the replacement Shareholder Designee. If either the Sponsor (or DMGVthe Sponsor’s designated representative), during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.67.1.4, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGVSponsor, as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.67.1.4.
6.1.7 7.1.5 The Company agrees to include, in the slate of nominees recommended by the Board for election at any meeting of shareholders called for the purpose of electing directors, the Persons nominated pursuant to this Article VI VII (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees and, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties shall take all necessary and desirable actions within their control to enable the Shareholder Parties to nominate their respective Shareholder Designees.
6.1.8 7.1.6 Each member of the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association of the Company, Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenses.
Appears in 1 contract
Right to Nominate Directors. 6.1.1 After (a) Following the date hereofClosing Date, the Company and the Shareholder Stockholder Parties shall shall, as promptly as practicable, take all necessary and desirable actions within their control its control, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to cause the nominating committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):Board:
(ai) for so long as ▇▇▇▇ ▇▇▇TRP holds at least 10% of the issued and outstanding shares of the Company, two individuals designated by TRP;
(ii) for so long as the Sponsor, or, in case the Sponsor is dissolved, the individuals identified in Exhibit A collectively, holds three percent (3%) of the issued and outstanding shares of the Company, two individuals designated by the Sponsor (or in case the Sponsor is dissolved, the individuals identified in Exhibit A collectively), one of whom will be an independent director (and to qualify as “independent” shall meet the requirements of any applicable laws and the listing standards of NASDAQ, as determined by the Board), and
(iii) ▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(b) who shall initially be a Class III director and the chairperson of the Board), for so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ is the Chief Financial Officer chief executive officer of the CompanyCompany or he, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(c) until together with the expiration of the term of office of the Class III Directors in office trusts identified on the date hereofExhibit B, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and
(d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (holds at least 10%) or more % of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement.
6.1.2 (b) The remaining Directors directors (all of which shall qualify as independent directors under the requirements of any applicable laws and the listing standards of NASDAQ, as determined by the Board) will be nominated by the Nominating Committee in accordance with its policies and procedures. The initial composition of the Nominating Committee shall be agreed by ▇▇▇▇▇▇▇ ▇▇▇, one director nominated by TRP and one director nominated by the Sponsor.
6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of AssociationOrganizational Documents.
6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in (d) In the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by TRP or the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not electedSponsor, the remaining directors and the Company shall shall, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), cause such open seat the vacancy created thereby to be filled by a new member designated in writing nominated by the Shareholder Party that designated such Shareholder DesigneeSponsor or TRP, as applicable, as soon as possible, and the Company hereby agrees to take, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), at any time and the Shareholder Parties hereby agree from time to take time, all actions necessary and desirable actions within their control to accomplish the same. .
(e) The Sponsor and DMGV shall have the right to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, as applicableagrees, to the Companyfullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with this subsection 6.1.6.
6.1.7 The Company agrees to include, in the slate of nominees recommended by the Board for election at any meeting of shareholders stockholders called for the purpose of electing directors, the Persons persons nominated pursuant to this Article VI Section 2 (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company shall use its commercially reasonable efforts to support the election of the Shareholder Designees and, in any event, not less than the efforts used by the Company to obtain the election of any other nominee nominated by it to serve on the Board. The Company and the Shareholder Parties directors shall take all necessary and desirable actions within their control corporate action, to the fullest extent permitted by applicable Law (including with respect to any fiduciary duties under Delaware law), to (x) enable the Shareholder Parties Sponsor and TRP to nominate their respective Shareholder Designeesdesignated individuals, and (y) designate the requisite number of additional individuals specified by the Sponsor or TRP to fill such newly created vacancies or to fill any other existing vacancies, as warranted.
6.1.8 (f) Each member of the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Directors directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association Organizational Documents of the Company, applicable Law or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expenses.
Appears in 1 contract
Right to Nominate Directors. 6.1.1 (a) After the date hereofhereof and until the Termination Date (as defined in Section 3 herein), the Company Parent and the Shareholder Parties Stockholders shall take all necessary and desirable actions within their control to cause the nominating and corporate governance committee of the Board (the “Nominating Committee”) to nominate and recommend to the Board, including self-nominations, the following individuals for election to the Board as directors (each, a “Director”):
(a) for so long as ): ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ is the Chief Executive Officer of the Company, or, together with his Affiliates, Beneficially Owns at least five percent (5%) of the issued and outstanding voting shares of the Company, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(b) for so long as ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ is the Chief Financial Officer ▇▇▇▇▇▇, M.D., ▇▇▇▇ ▇. ▇▇▇▇▇▇, PhD (Hon) (as Non-Executive Chairman of the CompanyBoard), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇;
(c) until the expiration of the term of office of the Class III Directors in office on the date hereof, one individual designated in writing by the Sponsor, who shall initially be as specified in the Business Combination Agreement; and
(d) until the later of (i) the expiration of the term of office of the Class III Directors in office on the date hereof ▇▇ and (ii) such time as the DMGV Group no longer Beneficially Owns ten percent (10%) or more of the issued and outstanding voting shares of the Company, one individual designated in writing by DMGV, who shall initially be as specified in the Business Combination Agreement▇▇▇▇▇▇▇ ▇▇▇▇▇.
6.1.2 The remaining Directors will be nominated by the Nominating Committee in accordance with its policies and procedures.
6.1.3 The Memorandum and Articles of Association shall (to the extent permitted by applicable Law) provide that Directors may designate alternate directors.
6.1.4 For so long as DMGV has a designee on the Board, DMGV may, at its election and at any time by written notice to the Company, appoint a DMGV Observer to the Board to attend all meetings of the Board (and any committee thereof). The DMGV Observer shall be entitled to receive all notices, written documents and materials provided to the Directors and to be invited to, attend and speak at all meetings of the Board and its committees in a non-voting capacity. For the avoidance of doubt, no observer shall be liable toward the Company or any shareholder with respect to any action or inaction of the Board or its committees. DMGV shall treat all information it learns through its DMGV Observer as Confidential Information. The DMGV Observer shall execute a confidentiality agreement in a form reasonably approved by the Board. Notwithstanding the above, the Company shall have the right to exclude the DMGV Observer from portions of meetings of the Board or omit to provide the DMGV Observer with certain information or analysis if the Board reasonably determines in good faith that: (a) the information or meeting involves competitors of DMGV, or would reasonably be expected to pose a conflict of interest or material potential conflict of interest between DMGV and the Company, or would reasonably be expected and determined to have a material adverse effect on the Company or its business (including to jeopardize any potential transaction); (b) upon advice of counsel, such exclusion or omission is necessary to preserve an attorney-client privilege; (c) such exclusion or omission is reasonably necessary to protect confidential proprietary information or trade secrets of the Company, or to fulfill the Company’s obligations with respect to confidential or proprietary information of third parties; or (d) the DMGV Observer’s access to the information or attendance at any meeting would be prohibited under Law. The foregoing exclusion and restriction on information that is otherwise required to be provided to the DMGV Observer pursuant to this subsection 6.1.4 shall also permit the Company to redact from minutes of the Board, or committee meetings and withhold from notices of meetings any reference and details to matters and documents, notices, deliberations and resolutions reasonably relating to any such matters or information. The designation, dismissal and replacement of the DMGV Observer shall be made by written notice to the Company and signed by a duly authorized officer of DMGV and shall become valid and effective upon the day on which such written notice was received by the Company or upon such later date as may be noted in such notice.
6.1.5 Directors are subject to removal pursuant to the applicable provisions of the Memorandum and Articles of Association.
6.1.6 During the Sponsor’s and DMGV’s respective Board Seat Period, in the event that (i) a vacancy is created at any time by the death, retirement, disability, removal or resignation of any of the members nominated by the Sponsor or DMGV (the “Shareholder Designees”) or (ii) a Shareholder Designee fails to be elected to the Board at any annual or special meeting of the shareholders of the Company at which such Shareholder Designee stood for election but was nevertheless not elected, the remaining directors and the Company shall cause such open seat to be filled by a new member designated in writing by the Shareholder Party that designated such Shareholder Designee, as soon as possible, and the Company and the Shareholder Parties hereby agree Parent agrees to take all necessary and desirable actions within their control action to accomplish (i) call, or cause the same. The Sponsor and DMGV shall have Board to call, a meeting of stockholders of the right Parent as may be necessary to propose to remove their respective Shareholder Designee and designate another Shareholder Designee in his or her place. If either cause the Sponsor or DMGV, during its respective Board Seat Period, wishes to remove its Shareholder Designee and designate another Shareholder Designee in his or her place pursuant to this subsection 6.1.6, the Company and the Shareholder Parties shall take all necessary and desirable actions within their control, upon written notice from the Sponsor or DMGV, election as applicable, to the Company, to fill the vacancy resulting from such removal with such replacement Shareholder Designee directors of those individuals nominated in accordance with this subsection 6.1.6.
6.1.7 The Company agrees Agreement and to (ii) include, in the slate of nominees recommended by the Board for election at any meeting of shareholders stockholders called for the purpose of electing directorsdirectors between the date hereof and the Termination Date (or in any election by written consent), the Persons persons nominated pursuant to this Article VI (to the extent that directors of such nominee’s class are to be elected at such meeting, for so long as the Board is classified) Section 1 and to nominate and recommend each such individual to be elected as a director as provided herein, and to solicit proxies or consents in favor thereof and to cause the applicable proxies to vote in accordance with the foregoing. The Company Parent shall use its commercially reasonable efforts to support the election of the Shareholder Designees Directors and, in any event, shall use not less than the efforts used by the Company Parent to obtain the election of any other nominee nominated by it to serve on the Board. The Company Parent and the Shareholder Parties Stockholders shall take all necessary and desirable actions within their control to enable the Shareholder Parties Nominating Committee and/or the Board to nominate their respective Shareholder Designeesthe Directors.
6.1.8 Each member (c) The chairman of the Board shall be entitled a non-executive chairman, shall preside at all meetings of the Board and shall exercise such powers and perform such other duties as shall be determined from time to time by the same rights Board or otherwise enumerated in an agreement between the Parent and privileges the chairman. The Non-Executive Chairman shall initially be ▇▇▇▇ ▇. ▇▇▇▇▇▇.
(d) Directors may be removed from office only in accordance with the provisions contained in the Parent’s bylaws and certificate of incorporation, as amended from time to time (the “Organizational Documents”), and Delaware law. In the event that a vacancy is created on the Board at any time by the death, disability, retirement, resignation or removal of any of the above-referenced Director, the Parent and each Stockholder, severally and not jointly, shall take all necessary action as will result in the election or appointment of such individual as may be selected by the Board or the Nominating Committee of the Board to fill such vacancy.
(e) The Board shall maintain committees in accordance with the Organizational Documents as well as the applicable to all other requirements of Nasdaq. The Parent and each of the Stockholders agrees that, following the consummation of the Merger, the members of the Board generally or to which all such members audit, compensation, and nominating committees of the Board are entitledshall be as set forth on Exhibit B hereto or as otherwise determined by the Board. In furtherance Upon the death, disability, retirement, resignation or removal of any Director, such Director shall also be removed from the foregoing, the Company shall indemnify, exculpate, committees on which such Director serves and reimburse fees and expenses of the Directors and provide them with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the Memorandum and Articles of Association of the Company, Law may in its discretion appoint alternative Directors or otherwise. The Company acknowledges and agrees that it (i) is the indemnitor of first resort (i.e., its and its insurers’ obligations to advance expenses and to indemnify any Shareholder Designee are primary and any obligation of any Shareholder Party, their Affiliates or their insurers to advance fees and expenses or to provide indemnification for the same fees and expenses or liabilities incurred by any Shareholder Designee is secondary and excess), and (ii) shall be required to advance the amount of fees and expenses incurred by any Shareholder Designee and shall be liable for the amount of all fees, expenses and liabilities incurred by any such Shareholder Designee, in each case (a) to the same extent as it advances fees and expenses to other members of the Board pursuant to the Memorandum and Articles of Association, Law or otherwise, and (b) without regard newly-appointed director to any rights such a Shareholder Designee may have against his or her designating Shareholder Party or any of its Affiliates; provided that such Shareholder Designee shall have delivered to the Company an undertaking, by or on behalf of such Shareholder Designee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision of a court of competent jurisdiction from which there is no further right to appeal that such Shareholder Designee is not entitled to be indemnified for such expensescommittee.
Appears in 1 contract
Sources: Stockholders Agreement (AeroClean Technologies, Inc.)