Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph. (ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors. (iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirements.
Appears in 2 contracts
Samples: Shareholder Agreement (Schnatter John H), Shareholder Agreement (Papa Johns International Inc)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder Agreement and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent receipt of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of customary background checks by the Company (subject to any phase-in periods generally applicable to new directors, such which shall be completed as stock ownership requirements) (clauses (A)-(Gsoon as practicable), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase (including by increasing the size of the Board) to appoint (i) Xxxxx X. Xxxx (the “Starboard Appointee”) and (ii) Xxxxxxx Xxxx and Xxxx Xxxxxxx (the “Independent Appointees” and together with the Starboard Appointee and the Additional Independent Appointee (as defined below), the “Appointed Directors”) as directors of the Company. The Starboard Appointee and the Independent Appointees shall stand for election at the 2016 annual general meeting of stockholders of the Company (the “2016 Annual General Meeting”) together with the Company’s other nominees.
(ii) In addition to the Starboard Appointee and the Independent Appointees, Starboard shall have the right, following execution of this Agreement, to recommend one additional independent director (the “Additional Independent Appointee”) to the Board. The Additional Independent Appointee must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) be independent of Starboard (for the avoidance of doubt, the nomination by one member Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (C) qualify as “independent” pursuant to Nasdaq Stock Market listing standards and (D) have the relevant financial and business experience to be a director of the Company (clauses (C) and (D), the “Director Criteria”). The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such person meets the foregoing criteria within five (5) business days after (1) such Additional Independent Appointee candidate has submitted to the Company the documentation required by Section 1(f)(v) and (2) representatives of the Board have conducted customary interview(s) of such Additional Independent Appointee candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this section as promptly as practicable, but in any case, assuming reasonable availability of the applicable Additional Independent Appointee candidate, within ten (10) business days, after Starboard’s submission of such Additional Independent Appointee candidate. In the event the Nominating and Corporate Governance Committee does not accept an Additional Independent Appointee candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Independent Appointee candidate(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Independent Appointee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Additional Independent Appointee to the Board no later than five (5) calendar days after the Nominating and Corporate Governance Committee’s recommendation of such Additional Independent Appointee and shall take all necessary actions (including by increasing the size of the Board) to appoint such Additional Independent Appointee to the Founder Board; provided, however, that if the Board does not elect such Additional Independent Designee Appointee to fill the newly created directorship effective immediatelyBoard pursuant to this Section 1(a)(ii), and nominate, along the Parties shall continue to follow the procedures of this Section 1(a)(ii) until an Additional Independent Appointee is elected to the Board. Any Additional Independent Appointee designated pursuant to this Section 1(a)(ii) prior to the mailing of the Company’s definitive proxy statement for the 2016 Annual General Meeting shall stand for election at the 2016 Annual General Meeting together with its the Company’s other nominees, including the Founder Starboard Appointee and the Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directorsAppointees.
(iii) If a Founder Independent Designee is recommended for appointment Concurrently with the actions specified in Section 1(a)(i), the Board and all applicable committees of the Board shall take all necessary actions (including by increasing the size of the Board) to appoint Xxxxxx Xxxxx as a director of the Company Company. Xx. Xxxxx shall stand for election at the 2016 Annual General Meeting together with the Company’s other nominees.
(iv) The Board will recommend, and the Company will support and solicit proxies only for, the election of the Starboard Appointee, the Independent Appointees, the Additional Independent Appointee, if appointed as of such time, Xx. Xxxxx, the new Chief Executive Officer, if appointed as of such time, and the four independent directors serving on the Board determines that immediately prior to the execution of this Agreement (the “Current Independent Directors”) at the 2016 Annual General Meeting.
(v) If any Appointed Director (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a director, resigns as a director (including as the result of a failure to receive a majority vote at the 2016 Annual General Meeting) or is removed as a director prior to the expiration of the Standstill Period, and at such Founder time Starboard’s Ownership is at least the lesser of 3.0% of the Company’s then outstanding Common Stock and 15,334,931 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(v) (any such replacement nominee shall be referred to as a “Starboard Replacement Director”). Any Starboard Replacement Director must satisfy the Director Criteria and, in the case of a Starboard Replacement Director who is replacing an Independent Designee Appointee, must be (A) reasonably acceptable to the Board (such acceptance not to be unreasonably withheld) and (B) independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard). Any Starboard Replacement Director who is replacing the Starboard Appointee and who is an employee of Starboard will be approved and appointed to the Board no later than five business days following the submission of all completed documentation required by Section 1(f)(v) so long as such Starboard Replacement Director qualifies as “independent” pursuant to Nasdaq Stock Market listing standards. The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director (other than the Starboard Appointee, who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(f)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this section as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee recommendation of such Starboard Replacement Director; provided, however, that if the Board does not elect such Starboard Replacement Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until a Starboard Replacement Director is elected to the Board. Upon a Starboard Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to increase appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Until such time as any Starboard Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(v) replacing the Starboard Appointee or any Independent Appointee prior to the 2016 Annual General Meeting shall stand for election at the 2016 Annual General Meeting together with the Company’s other nominees.
(vi) During the period commencing with the date hereof through the date immediately prior to the conclusion of the 2016 Annual General Meeting, the Board and all applicable committees of the Board shall take all necessary actions (including with respect to nominations for election at the 2016 Annual General Meeting) so that the size of the Board is no more than ten (10) directors; provided, however, the Board may be increased during this period solely to accommodate the Additional Independent Appointee and/or the new Chief Executive Officer, as applicable. During the period commencing immediately upon the conclusion of the 2016 Annual General Meeting and through the expiration or termination of the Standstill Period (as defined below), the Board and all applicable committees of the Board shall take all necessary actions so that the size of the Board is the number of directors recommended by one member and appoint the Founder Board in accordance with Section 1(a)(iv); provided, however, to the extent either of the Additional Independent Designee Appointee or the new Chief Executive Officer has not been appointed as a director as of the conclusion of the 2016 Annual General Meeting, the Board may be increased during this period solely to fill accommodate the newly created directorship effective immediately Additional Independent Appointee and/or the new Chief Executive Officer, as applicable.
(vii) At any time after the first meeting of the Board following the execution of this agreement, but in any event no later than one (1) week following the execution of this Agreement, the Board shall take all necessary actions to elect a Chairman of the Board from among the directors, which Chairman must be reasonably acceptable to Starboard (such acceptance not to be unreasonably withheld, conditioned or delayed). Such Chairman shall meet the following requirements: (A) be deemed an independent director under the 2019 Annual Meeting or (B) the determination rules of the Nasdaq Stock Market; (b) live in the United States; and (c) be willing to accept the responsibilities of the position. Should a new Chairman be appointed who is an Appointed Director and who is otherwise a chair of a Board committee, an Appointed Director shall be appointed by the Board promptly as a new chair of that committee.
(viii) In the event that the Founder Independent Designee meets Board appoints a permanent Chief Executive Officer, the Eligibility RequirementsBoard will shall take all necessary actions (including by increasing the size of the Board) to appoint such person as a director of the Company.
Appears in 2 contracts
Samples: Shareholder Agreement (Marvell Technology Group LTD), Agreement (Starboard Value LP)
Board Appointments. (a) The Company agrees that the Board or a committee thereof shall take all necessary actions to, effective as of the date hereof:
(i) Promptly following execution increase the size of this Agreementthe Board to a minimum of twelve (12) directors;
(ii) appoint Rhine, the Parties agree Xxxxxxx X’Xxxxx (“X’Xxxxx”), Xxxxxx Xxxxxx and Xxxxx Xxxxxxxx, each of whom has indicated his willingness to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and serve on the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, with each such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), person to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements serve in accordance with the procedures described in this paragraphAmended and Restated By-Laws of the Company, as amended from time to time (the “By-Laws”); and
(iii) appoint Rhine to the Nominating Committee of the Board and O’Brien to the Compensation Committee of the Board.
(iib) If a Founder Independent Designee is recommended for appointment as a director of the The Company and further agrees that the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board a committee thereof shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with recommend and solicit proxies for each of Rhine and O’Brien for re-election as directors at each annual meeting during the Standstill Period (as defined below) in a manner no less rigorous and favorable than the manner in which the Company supports its other nomineesnominees for election at such annual meetings.
(c) Chez hereby irrevocably withdraws the letter dated June 17, 2015, notifying the Founder Independent Designee Company of Chez’s intent to nominate candidates for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 2015 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iiid) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the The Company agrees that, subject that it will continue to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size continue to search for a suitable candidate to be designated as non-executive Chairman of the Board by one member and appoint Board. The Nominating Committee shall be responsible for conducting such search, provided that its recommendation shall be subject to the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination approval of the Board Board. It is understood and agreed that the Founder Independent Designee meets Nominating Committee will duly consider any qualified independent candidates for Board positions who are timely recommended by the Eligibility RequirementsGroup for nomination at annual meetings of stockholders during the Standstill Period.
(e) The Company agrees that during the Standstill Period, neither the Board nor a committee thereof shall take any action to remove Rhine from the Nominating Committee without the prior written consent of the Group.
Appears in 2 contracts
Samples: Settlement Agreement (Chez Ronald L), Settlement Agreement (Cinedigm Corp.)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member from nine (9) to thirteen (13) directors and appoint Xxxxx X. Xxxx (“Xx. Xxxx”, or the Founder “Starboard Appointee”), Xxxxxx X. Norwalk, Xxx X. Xxxxxxx and Xxxxxx X. Xxxxxxx (each an “Independent Designee to fill Appointee” and, together with the newly created directorship effective immediately, and nominate, along with its other nomineesStarboard Appointee, the Founder Independent Designee “Appointed Directors”) as directors of the Company. Prior to the date of this Agreement, each of the Appointed Directors has submitted to the Company a fully completed copy of the Company’s D&O Questionnaire and other onboarding materials.
(ii) The Company agrees that the Board shall nominate each Appointed Director (including any Replacement Director (as defined below)) for election to the Board at the Company’s 2019 Annual Meeting for a term terms expiring at the Company’s 2020 Annual Meeting annual meeting of Stockholders shareholders (the “2020 Annual Meeting”), subject only to their consent to serve. Subject to the foregoing and to the remainder of this Section 1(a)(ii), the slate of nominees for election at the 2019 Annual Meeting shall be as determined by the Board, based upon the recommendation of the Nominating/Corporate Governance Committee (B) the “Nominating Committee”). The Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee Appointed Directors at the 2019 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of its incumbent directors (the other nominees nominated by “Continuing Directors”). The Board shall take all necessary actions to decrease the size of the Board from thirteen (13) to ten (10) directors, effective immediately following the election of directors at the 2019 Annual Meeting, and the slate of nominees for election as directorsat the 2019 Annual Meeting, together with the incumbent directors whose terms expire at the 2020 Annual Meeting who will continue to serve following the 2019 Annual Meeting, shall equal ten (10).
(iii) If any Appointed Director (or any Replacement Director) is unable or unwilling to serve as a Founder Independent Designee director for any reason or ceases to be a director, resigns as a director or is recommended removed as a director prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3.0% of the Company’s then outstanding shares of Common Stock and 717,760 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person for appointment to the Board in accordance with this Section 1(a)(iii) (any such replacement nominee shall be referred to as a “Replacement Director,” and upon becoming a Replacement Director, such person shall be deemed an Appointed Director for purposes of this Agreement). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to Nasdaq Stock Market (“Nasdaq”) listing standards, (C) have the relevant financial and business experience to be a director of the Company and (D) in the case of a Replacement Director who is replacing an Independent Appointee (or any replacement thereof), be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard, but any employee, director or affiliate of Starboard (whether past or present) would not be deemed independent of Starboard). Any Replacement Director who is replacing Xx. Xxxx as the Starboard Appointee (or any replacement thereof) and who is a partner or senior employee of Starboard that has relevant business and financial experience will be approved and appointed to the Board determines that no later than ten (10) business days following the submission of the Company’s D&O Questionnaire and other onboarding materials, so long as such Founder Independent Designee Replacement Director qualifies as “independent” pursuant to the Nasdaq listing standards. The Nominating Committee shall use its reasonable best efforts to make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether any other such nominee to be a Replacement Director (other than any Replacement Director who is a partner or senior employee of Starboard, who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria within ten (10) business days after March 22, 2019, (x) such nominee has submitted to the Company agrees thatthe Company’s D&O Questionnaire and other onboarding materials and (y) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating Committee recommending such person in accordance with the procedures described in this Section 1(a)(iii). Upon the recommendation of a Replacement Director nominee by the Nominating Committee, the Board shall use reasonable best efforts to vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of such Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not elect such Replacement Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Director is elected to the Board. Subject to Nasdaq rules and applicable law, upon a Replacement Director’s appointment to the Board pursuant to this Section 1(a)(iii), the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to Nasdaq rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard with respect to any Replacement Director) will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iii) to replace any Appointed Director or a Replacement Director prior to the mailing of the Company’s definitive proxy statement for the 2019 Annual Meeting, shall stand for election at the 2019 Annual Meeting together with the Company’s other nominees, in accordance with Section 1(a)(ii) of this Agreement. Starboard shall promptly (and in any event within five (5) business days): (i) inform the Company in writing if Starboard fails to satisfy the Minimum Ownership Threshold at any time; and (ii) upon a request by or on behalf of the Company, confirm the number of shares of Common Stock beneficially owned (as determined under Rule 13d-3 promulgated under the Exchange Act) by Starboard.
(iv) During the period commencing upon the conclusion of the 2019 Annual Meeting and continuing through the expiration of the Standstill Period, the Board shall take all necessary actions to set the size of the Board at no more than ten (10) directors, unless Starboard consents in writing to any proposal to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
Appears in 2 contracts
Samples: Shareholder Agreement (Magellan Health Inc), Agreement (Starboard Value LP)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase (including by increasing the size of the Board by one member to up to nine members) to appoint Xxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx and appoint the Founder Independent Designee to fill the newly created directorship effective immediatelyXxxxx X. Xxxxx (each a “New Director” and, and nominate, along with its other nomineescollectively, the Founder Independent Designee for election “New Directors”) as directors of the Company. Prior to the Board at date of this Agreement, the 2019 Annual Meeting for New Directors have submitted to the Company (1) a term expiring at fully completed copy of the Company’s 2020 Annual Meeting of Stockholders standard director & officer questionnaire (the “2020 Annual MeetingD&O Questionnaire”), and (B2) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting an executed letter in the same manner form attached hereto as it recommendsExhibit A (the “Nominee Letter” together with the D&O Questionnaire, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors“Nomination Documents”).
(iiiii) If During the Standstill Period (as defined below), if any New Director or any Replacement Director (as defined below) is unable or unwilling to serve as a Founder Independent Designee director, resigns as a director or is recommended removed as a director prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns in the aggregate at least the lesser of (x) 3.0% of the Company’s then outstanding Common Stock and (y) 1,845,233 shares of Common Stock (subject to adjustment for appointment stock splits, reclassifications, combinations and similar adjustments), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(ii) (any such replacement nominee shall be referred to as a “Replacement Director”). Any Replacement Director must be (A) reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to Nasdaq Stock Market listing standards, (C) have the relevant financial and business experience to be a director of the Company, and (D) independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard). The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such Replacement Director meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the Nomination Documents required for the New Directors in Section 1(a)(i) and (2) representatives of the Board determines that have conducted customary interview(s) of such Founder Independent Designee meets nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this section as promptly as practicable, but in any case, assuming reasonable availability of the Eligibility Requirements nominee, within ten (10) business days after March 22Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Director, 2019, Starboard shall have the Company agrees that, right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee recommendation of such Replacement Director; provided, however, that if the Board does not elect such Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Replacement Director is elected to the Board. Upon a Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to increase appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Until such time as any Replacement Director is appointed to any applicable committee, one of the other New Directors (as designated by Starboard) will serve as an interim member of such applicable committee. For purposes of this agreement, the terms “beneficial owner” and “beneficial ownership” shall have the respective meanings as set forth in Rule 13d-3 promulgated by the U.S. Securities and Exchange Commission under the Exchange Act (as defined below). In furtherance of this Section 1(a)(ii), Starboard shall provide notice to the Company no later than two business days after its beneficial ownership ceases to satisfy the minimum threshold established in this Section 1(a)(ii).
(iii) The Company agrees that the size of the Board by one member and appoint shall not be increased beyond nine (9) members prior to the Founder Independent Designee to fill date of the newly created directorship effective immediately following the later of (A) the 2019 2017 Annual Meeting or of Shareholders (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirements“2017 Annual Meeting”).
Appears in 2 contracts
Samples: Shareholder Agreement (Depomed Inc), Shareholder Agreement (Starboard Value LP)
Board Appointments. (i) Promptly The Company agrees that the Board and all applicable committees and subcommittees of the Board shall take all necessary actions, effective immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not accept the Founderresignations of all existing members of the Board, such resignations to take effect immediately prior to the appointment of the Agreed Appointees (as defined below) to the Board, other than Xxxxx X. XxXxx, Xxxxxxx X. Xxxxx, Z. Xxxxx Xxxxx, and Xxxxx X. Xxxxxx (the “Continuing Directors”), and (B) has businessnominate and appoint Xxxxxxx ‘Xxxxx’ Xxxxxxx, restaurantXxxxxx Xxxxxxx, marketingXxxx Xxxx, technologyXxx Xxxxxxxxxxx and Xxxxxxxx Xxxxxx (the “Agreed Appointees”) as directors of the Company. Until a Chairman or Executive Chairman of the Board is appointed in accordance with Section 1(b) below, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and Xxxxx X. Xxxxxx shall remain Chairman of the Board.
(ii) Starboard shall also have the right, each exercisable, in its Starboard’s sole and absolute discretion, at any time following the execution of this Agreement, to recommend one (D1) additional director (when appointed, the “Starboard Appointee”) for appointment to the Board. The Starboard Appointee (or any Starboard Replacement Director (as defined below)) must be an individual that is either (A) a partner or employee of Starboard or (B) another individual who (1) qualifies as “independent” pursuant to The Nasdaq New York Stock Market’s Exchange (“NasdaqNYSE”) listing rulesstandards (other than any standards that take into account ownership of any Common Stock or other securities of the Company), (E2) is independent has relevant financial and business experience to be a director of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G3) satisfies the publicly disclosed corporate governance guidelines Corporate Governance Guidelines and policies the Code of Legal and Ethical Conduct with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G)together, the “Eligibility RequirementsBoard Criteria”), to recommend for appointment as a director . The Corporate Governance & Nominating Committee of the Company. Founder acknowledges that Board (the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board “Nominating Committee”) shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether any candidate recommended as a Founder Independent Designee Starboard Appointee (or any Starboard Replacement Director thereof) meets the Eligibility Requirements promptly, and in any event Board Criteria within ten five (105) business days, after days following written receipt of such nominee has submitted recommendation from Starboard; provided that any Starboard Appointee candidate (or any Starboard Replacement Director candidate) who is a partner or employee of Starboard will be deemed to satisfy the Board Criteria and will be approved and appointed to the Company Board within (5) five business days of such recommendation from Starboard so long as such Starboard Appointee candidate qualifies as “independent” pursuant to NYSE listing standards (other than any standards that take into account ownership of any Common Stock or other securities of the Company) and submits all completed documentation required by pursuant to Section 1(e)(vii). Without limiting the rights of Starboard in accordance with the proviso to the previous sentence. If , in the Board determines that a proposed Founder Independent Designee event the Nominating Committee does not meet accept a Starboard Appointee candidate (or any Starboard Replacement Director candidate) recommended by Starboard, Starboard shall have the Eligibility Requirements, the Parties agree right to thereafter cooperate to identify another proposed Founder Independent Designee recommend further Starboard Appointee candidate(s) (or any Starboard Replacement Director candidates) whose appointment shall be subject to meeting the Eligibility Requirements Nominating Committee recommending such person in accordance with the procedures described in this paragraph.
above. Upon the recommendation of a Starboard Appointee candidate (iior a Starboard Replacement Director candidate) If a Founder Independent Designee is recommended for appointment as a director of by the Company and Nominating Committee, the Board determines that shall vote on the appointment of such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject Starboard Appointee candidate to the Founder Independent DesigneeBoard no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of the Eligibility Requirements, such Starboard Appointee candidate (Aor such Starboard Replacement Director candidate) the Board and all applicable committees of the Board concurrently with such vote shall take all necessary actions to increase appoint such Starboard Appointee candidate (or such Starboard Replacement Director candidate) to the size Board effective immediately; provided, however, that if the Board does not appoint a candidate recommended by Starboard as a Starboard Appointee (or a Starboard Replacement Director) to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Starboard Appointee (or Starboard Replacement Director) recommended by Starboard shall have been appointed to the Board. Effective upon the appointment of a Starboard Appointee (or Starboard Replacement Director) to the Board, such Starboard Appointee (or Starboard Replacement Director) will be considered an Agreed Appointee for all purposes of this Agreement. Each Agreed Appointee, Starboard Appointee or any Starboard Replacement Director, is referred to herein as an “Appointed Director”. For the avoidance of doubt, if a Starboard Appointee is appointed to the Board prior to the mailing of the Company’s definitive proxy statement for the 2018 Annual Meeting (as defined below), the Starboard Appointee shall stand for election at the 2018 Annual Meeting together with the Company’s other nominees.
(iii) The Company agrees that (x) the Board by one member shall nominate, recommend, support and appoint solicit proxies for the Founder Independent Designee to fill the newly created directorship effective immediatelyfollowing individuals, and shall only nominate, along with its other nomineesrecommend, support and solicit proxies for the Founder Independent Designee following individuals, for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 2018 Annual Meeting of Stockholders (the “2020 2018 Annual Meeting”) for terms expiring at the Company’s 2019 Annual Meeting of Stockholders (the “2019 Annual Meeting”) and subject to their consent to serve: (A) each Appointed Director (if appointed as of such time), and (B) each Continuing Director and (C) one (1) director designated as a “Scopia Appointee” or “Scopia Replacement Director” under the terms of an agreement the Company is independently entering into with Scopia Management, Inc. and its Affiliates (collectively, “Scopia”) concurrently with the execution of this Agreement. For the avoidance of doubt, the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting such Appointed Directors in the same manner as it recommends, supports and solicits proxies for the election of Continuing Directors. The Company shall hold the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 2018 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirementsno later than June 30, 2018.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Agreement (Forest City Realty Trust, Inc.)
Board Appointments. (i) Promptly following execution of this Agreement, The Company agrees that as promptly as practicable after the Parties agree to cooperate to identify a mutually acceptable independent director date hereof (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business daysno later than March 26, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements2021), the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to (A) amend the Company’s Amended and Restated By-laws to increase the size maximum number of directors of the Board by one member and appoint the Founder Independent Designee from ten (10) to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders twelve (the “2020 Annual Meeting”), 12) and (B) appoint to the Board two (2) new independent directors to be selected from the list of independent director candidates agreed to between the Company shall and Starboard as of the date hereof (each, a “New Independent Director” and collectively, the “New Independent Directors”). The Company agrees that, provided that such appointed New Independent Director is able and willing to continue to serve on the Board, the Company will include each such newly appointed New Independent Director in the Company’s slate of recommended nominees standing for election at the 2021 annual meeting of stockholders of the Company (the “2021 Annual Meeting”) and will recommend, support and solicit proxies for the election of the Founder New Independent Designee Directors at the 2019 2021 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election Company’s other nominees at the 2021 Annual Meeting. The Company confirms that two incumbent members of the other nominees nominated Board shall not stand for re-election to the Board at the 2021 Annual Meeting such that upon the conclusion of the 2021 Annual Meeting the size of the Board will be set at ten (10) directors. The Company agrees that, from and after entering into a customary non-disclosure agreement with the Company in a form provided by the Company and to be agreed between the Parties, (x) each of the New Independent Directors may attend and participate in any meeting of the Board (whether such meetings are held in person, telephonically or otherwise) until the appointment of the New Independent Directors to the Board, and shall be appointed to the Board as the first order of business at the next such meeting of the Board and (y) until such time as they are appointed to the Board, each of the New Independent Directors shall receive copies of all documents distributed to the Board, including notice of all meetings of the Board, all written consents executed by the Board, all materials prepared for consideration at any meeting of the Board, and all minutes related to each meeting of the Board after the date of this Agreement contemporaneous with their distribution to the Board (except to the extent any such materials are privileged as determined by the Board for election as directorsin good faith).
(iiiii) If any New Independent Director (or any Replacement Independent Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director, resigns as a director or is recommended removed as a director prior to the expiration of the Standstill Period, and at all times since the date of this Agreement and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) at least the lesser of 3.0% of the Company’s then outstanding Common Shares and 3,502,845 Common Shares (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person(s) for appointment to the Board in accordance with this Section 1(a)(ii) (any such replacement nominee shall be referred to as a “Replacement Independent Director”, and if and when such person becomes a director of the Company Board in accordance with this Section 1(a)(ii), such person shall be deemed a New Independent Director for purposes of this Agreement). Any Replacement Independent Director must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee (such acceptance not to be unreasonably withheld), (B) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of any person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (C) qualify as “independent” pursuant to Nasdaq Stock Market listing standards, (D) have the relevant financial and business experience to be a director of the Company, and (E) satisfy the publicly disclosed guidelines and policies with respect to service on the Board, including, without limitation, the Company’s Corporate Governance Guidelines and the Board determines that Nominating and Corporate Governance Committee charter (in the case of each of (B) through (E), as reasonably determined by the Nominating and Corporate Governance Committee). The Nominating and Corporate Governance Committee shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether such Founder Independent Designee person meets the Eligibility Requirements foregoing criteria, assuming reasonable availability and responsiveness of such nominee, within ten (10) business days after March 22(1) such nominee as a Replacement Independent Director has submitted to the Company the documentation required by Section 1(b)(iv) and (2) representatives of the Board have, 2019if requested by the Company, conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, assuming reasonable availability and responsiveness of the nominee, within ten (10) business days after Starboard’s recommendation of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Independent Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above (and for the avoidance of doubt, the Company agrees that, subject may also identify names for consideration). The Board shall vote on the appointment of such Replacement Independent Director to the Founder Board no later than five (5) business days after the Nominating and Corporate Governance Committee recommendation of such Replacement Independent DesigneeDirector; provided, however, that if the Board does not appoint such Replacement Independent Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Replacement Independent Director is appointed to the Board. Upon a Replacement Independent Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Independent Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal or, if the Board or the applicable committee of the Board determines that the Replacement Independent Director does not satisfy the requirements of the Nasdaq Stock Market and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith), to an alternative committee of the Board. Until such time as any Replacement Independent Director is appointed to any applicable committee, the other New Independent Director will be permitted to serve as an interim member of such applicable committee, unless such New Independent Director is already serving as a member of such committee or the Board or the applicable committee of the Board determines that such New Independent Director does not satisfy the requirements of the Nasdaq Stock Market and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith).
(iii) The Company agrees that during the Standstill Period, Xxxxxx Xxxxxx shall be an observer to the Board (the “Observer”) and shall receive, on a confidential and restricted basis, copies of all documents distributed to the Board during the Standstill Period, including, without limitation, notice of all meetings of the Board, all written consents executed by the Board, all materials prepared for consideration at any meeting of the Board, and all minutes related to each meeting of the Board contemporaneous with their distribution to the Board. The Observer shall have the right to attend and reasonably participate, but not vote, at all meetings of the Board during the Standstill Period (whether such meetings are held in person, telephonically or otherwise). The Observer will agree to comply with all confidentiality, corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and xxxxxxx xxxxxxx policies and guidelines of the Company that have been provided to the Observer. Notwithstanding the foregoing, the Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof if, and only to the extent that, the Board, as applicable, determines reasonably and in good faith that such exclusion is necessary and appropriate, including in cases involving legal privileges, conflicts of interest and compliance with applicable law or stock exchange regulation. As a condition to serving as the Observer, the Observer and Starboard are delivering to the Company concurrently with the execution of this Agreement an executed confidentiality agreement in a form agreed between the Parties prior to the date hereof (the “Confidentiality Agreement”), and shall also agree to hold any information received as the Observer subject to the fiduciary duties that he or she would have to the Company and its stockholders were he or she a director of the Company.
(iv) The Company agrees that each New Independent Director shall be given the same due consideration for membership to each committee of the Board as any other independent director.
(v) Subject to Nasdaq Stock Market rules and applicable laws, during the Standstill Period, the Board and all applicable committees of the Board shall take all action necessary to ensure that each committee of the Board, including any committee of the Board formed after the date of this Agreement, provides at least one New Independent Director the opportunity to be appointed to such committee.
(vi) During the period commencing upon the conclusion of the 2021 Annual Meeting and continuing until the expiration of the Standstill Period, the Board shall take all necessary actions to set the size of the Board at no more than ten (10) directors, unless Starboard consents in writing to any proposal to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Aci Worldwide, Inc.)
Board Appointments. (i) Promptly The Company agrees that the Board and all applicable committees and subcommittees of the Board shall take all necessary actions, effective immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not accept the Founderresignations of all existing members of the Board, such resignations to take effect immediately prior to the appointment of the Agreed Appointees (as defined below) to the Board, other than Xxxxx X. XxXxx, Xxxxxxx X. Xxxxx, Z. Xxxxx Xxxxx, and Xxxxx X. Xxxxxx (the “Continuing Directors”), and (B) has businessnominate and appoint Xxxxxxx ‘Xxxxx’ Xxxxxxx, restaurantXxxxxx Xxxxxxx, marketingXxxx Xxxx, technologyXxx Xxxxxxxxxxx, accountingand Xxxxxxxx Xxxxxx (the “Agreed Appointees”) as directors of the Company. Until a Chairman or Executive Chairman of the Board is appointed in accordance with Section 1(b) below, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and Xxxxx X. Xxxxxx shall remain Chairman of the Board.
(ii) Scopia shall also have the right, each exercisable, in its Scopia’s sole and absolute discretion, at any time following the execution of this Agreement, to recommend one (D1) additional director (when appointed, the “Scopia Appointee”) for appointment to the Board. The Scopia Appointee (or any Scopia Replacement Director (as defined below)) must be an individual that is either (A) a partner or employee of Scopia or (B) another individual who (1) qualifies as “independent” pursuant to The Nasdaq New York Stock Market’s Exchange (“NasdaqNYSE”) listing rulesstandards (other than any standards that take into account ownership of any Common Stock or other securities of the Company), (E2) is independent has relevant financial and business experience to be a director of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G3) satisfies the publicly disclosed corporate governance guidelines Corporate Governance Guidelines and policies the Code of Legal and Ethical Conduct with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G)together, the “Eligibility RequirementsBoard Criteria”), to recommend for appointment as a director . The Corporate Governance & Nominating Committee of the Company. Founder acknowledges that Board (the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board “Nominating Committee”) shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether any candidate recommended as a Founder Independent Designee Scopia Appointee (or any Scopia Replacement Director thereof) meets the Eligibility Requirements promptly, and in any event Board Criteria within ten five (105) business days, after days following written receipt of such nominee has submitted recommendation from Scopia; provided that any Scopia Appointee candidate (or any Scopia Replacement Director candidate) who is a partner or employee of Scopia will be deemed to satisfy the Board Criteria and will be approved and appointed to the Company Board within (5) five business days of such recommendation from Scopia so long as such Scopia Appointee candidate qualifies as “independent” pursuant to NYSE listing standards (other than any standards that take into account ownership of any Common Stock or other securities of the Company) and submits all completed documentation required by pursuant to Section 1(e)(vii). Without limiting the rights of Scopia in accordance with the proviso to the previous sentence. If , in the Board determines that a proposed Founder Independent Designee event the Nominating Committee does not meet accept a Scopia Appointee candidate (or any Scopia Replacement Director candidate) recommended by Scopia, Scopia shall have the Eligibility Requirements, the Parties agree right to thereafter cooperate to identify another proposed Founder Independent Designee recommend further Scopia Appointee candidate(s) (or any Scopia Replacement Director candidates) whose appointment shall be subject to meeting the Eligibility Requirements Nominating Committee recommending such person in accordance with the procedures described in this paragraph.
above. Upon the recommendation of a Scopia Appointee candidate (iior a Scopia Replacement Director candidate) If a Founder Independent Designee is recommended for appointment as a director of by the Company and Nominating Committee, the Board determines that shall vote on the appointment of such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject Scopia Appointee candidate to the Founder Independent DesigneeBoard no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of the Eligibility Requirements, such Scopia Appointee candidate (Aor such Scopia Replacement Director candidate) the Board and all applicable committees of the Board concurrently with such vote shall take all necessary actions to increase appoint such Scopia Appointee candidate (or such Scopia Replacement Director candidate) to the size Board effective immediately; provided, however, that if the Board does not appoint a candidate recommended by Scopia as a Scopia Appointee (or a Scopia Replacement Director) to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Scopia Appointee (or Scopia Replacement Director) recommended by Scopia shall have been appointed to the Board. Effective upon the appointment of a Scopia Appointee (or Scopia Replacement Director) to the Board, such Scopia Appointee (or Scopia Replacement Director) will be considered an Agreed Appointee for all purposes of this Agreement. Each Agreed Appointee, Scopia Appointee or any Scopia Replacement Director, is referred to herein as an “Appointed Director”. For the avoidance of doubt, if a Scopia Appointee is appointed to the Board prior to the mailing of the Company’s definitive proxy statement for the 2018 Annual Meeting (as defined below), the Scopia Appointee shall stand for election at the 2018 Annual Meeting together with the Company’s other nominees.
(iii) The Company agrees that (x) the Board by one member shall nominate, recommend, support and appoint solicit proxies for the Founder Independent Designee to fill the newly created directorship effective immediatelyfollowing individuals, and shall only nominate, along with its other nomineesrecommend, support and solicit proxies for the Founder Independent Designee following individuals, for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 2018 Annual Meeting of Stockholders (the “2020 2018 Annual Meeting”) for terms expiring at the Company’s 2019 Annual Meeting of Stockholders (the “2019 Annual Meeting”) and subject to their consent to serve: (A) each Appointed Director (if appointed as of such time), and (B) each Continuing Director and (C) one (1) director designated as a “Starboard Appointee” or “Starboard Replacement Director” under the terms of an agreement the Company is independently entering into with Starboard Value LP and its Affiliates (collectively, “Starboard” and such agreement, the “Starboard Agreement”). For the avoidance of doubt, the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting such Appointed Directors in the same manner as it recommends, supports and solicits proxies for the election of Continuing Directors. The Company shall hold the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 2018 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirementsno later than June 30, 2018.
Appears in 2 contracts
Samples: Shareholder Agreement (Forest City Realty Trust, Inc.), Shareholder Agreement (Scopia Capital Management Lp)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to (A) increase the size of the Board by one member and appoint from nine (9) to twelve (12) directors (provided that the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to size of the Board shall automatically decrease to nine (9) directors at the 2019 Annual Meeting for a term expiring at conclusion of the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”)) and, in connection therewith, expand the number of directors comprising each of the Class II and Class III directors of the Board by one (1) and two (2), respectively, (B) appoint Xxxx Xxxxx to the Board as a Class III director with a term expiring at the 2020 Annual Meeting, who will fill an existing vacancy among the Class III directors created by the expanded classes (the “First Independent Designee”), (C) appoint one (1) independent director to the Board prior to the 2020 Annual Meeting as a Class II director with a term expiring at the Company’s 2022 Annual Meeting of Stockholders (the “Second Independent Designee”, together with the First Independent Designee, the “Independent Designees”), with such Second Independent Designee to either be selected from the Candidate List (as defined below) or mutually agreed upon between the Company and Starboard in accordance with the procedures set forth in Section 1(a)(iii) of this Agreement, and who will fill the existing vacancy among the Class II directors created by the expanded classes, (D) identify and appoint one (1) additional independent director (the “Additional Independent Director”) to the Board prior to the 2020 Annual Meeting as a Class III director with a term expiring at the 2020 Annual Meeting, who will fill an existing vacancy among the Class III directors created by the expanded classes, (E) cause Xxxxx Xxxxx and Xxxx X’Xxxxxxxx not to stand for re-election at the 2020 Annual Meeting such that the Board shall nominate the following individuals, and only the following individuals, as Class III directors for election to the Board at the 2020 Annual Meeting for terms expiring at the Company’s 2023 Annual Meeting of Stockholders (the “2023 Annual Meeting”): the First Independent Designee, Xxx Xxxxxxxxx and the Additional Independent Director, and (BF) accept the resignation tendered by Xxxx Xxxxx as a director of the Company, who the Company hereby represents has submitted, or shall no later than the date hereof submit, an irrevocable letter of resignation to the Board that will become effective no later than upon the conclusion of the 2020 Annual Meeting.
(ii) The Company agrees that it will nominate the First Independent Designee for election at the 2020 Annual Meeting as a Class III director with a term expiring at the 2023 Annual Meeting and will recommend, support and solicit proxies for the election of the Founder First Independent Designee at the 2019 Annual Meeting Designee, in the same manner as it recommends, supports and solicits proxies for the election of Company’s other Class III director nominees. The Company shall use its reasonable best efforts to hold the other nominees nominated by the Board for election as directors2020 Annual Meeting no later than July 19, 2020.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the The Company agrees that, subject to no later than forty-five (45) days following the Founder Independent Designee’s continued satisfaction date of the Eligibility Requirementsthis Agreement, the Board and all applicable committees of the Board shall take all necessary actions to approve (such approval not to be unreasonably withheld) the Second Independent Designee for appointment to the Board, who shall be recommended by Starboard from the list of independent director candidates agreed to between the Company and Starboard as of the date hereof (the “Candidate List”). If for any reason the Company and Starboard are unable to mutually agree on the identity of the Second Independent Designee from the Candidate List, each of Starboard and the Company shall be permitted to submit additional candidates until the Company and Starboard mutually agree on the identity of the Second Independent Designee, provided, however, that if the Second Independent Designee is not identified and approved by the Board within forty-five (45) days following the date of this Agreement, the Board shall immediately, but no later than five (5) business days thereafter, select and approve one (1) of the director candidates from the Candidate List as the Second Independent Designee. Promptly following the Board’s approval of the Second Independent Designee in accordance with the terms of this Agreement, but no later than five (5) business days thereafter, the Board and all applicable committees of the Board shall take all necessary actions to appoint the Second Independent Designee to the Board as a Class II director.
(iv) If any Independent Designee (or any Replacement Director (as defined below)) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 4,560,420 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(iv) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company, and (D) not be an affiliate, employee or director of Starboard. The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such Replacement Director meets the foregoing criteria within ten (10) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(c)(iv), including such nominee’s consent to the Company’s customary background check and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct the background check and any interview(s) contemplated by this Section 1(a)(iv) as promptly as practicable, but in any case with respect to the interview(s), assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event that the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iv), the Parties shall continue to follow the procedures of this Section 1(a)(iv) until a Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to NYSE rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, the other Independent Designee will be provided the opportunity to serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iv) replacing an Independent Designee that is a Class III director prior to the mailing of the Company’s definitive proxy statement for the 2020 Annual Meeting shall stand for election at the 2020 Annual Meeting together with the other Class III director nominees.
(v) During the period commencing with the date of this Agreement through the 2020 Annual Meeting, the Board and all applicable committees of the Board shall not (A) increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of more than twelve (A12) the 2019 Annual Meeting directors or (B) seek to change the determination classes on which the Board members serve, in each case without the prior written consent of Starboard. Effective upon conclusion of the 2020 Annual Meeting through the expiration of the Standstill Period, the Board and all applicable committees of the Board shall not (A) increase the size of the Board to more than nine (9) directors or (B) seek to change the classes on which the Board members serve, in each case without the prior written consent of Starboard.
(vi) During the Standstill Period, the Company will have in effect a provision in its Corporate Governance Guidelines providing that any “employee director must submit his or her offer of resignation from the Founder Independent Designee meets Board in writing upon termination of employment with the Eligibility RequirementsCompany” and the Company hereby agrees to accept, and to cause the Board to accept, any such resignation tendered during the Standstill Period unless a majority of the independent directors on the Board determine otherwise.
Appears in 2 contracts
Samples: Agreement (Box Inc), Agreement (Starboard Value LP)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions to increase nominate Xxxxx X. Xxxxxx (the size of the Board by one member and appoint the Founder “New Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee Director”) as a Class III director for election to the Board at the 2019 2021 Annual Meeting for a term expiring at the Company’s 2020 2024 Annual Meeting of Stockholders (Shareholders and shall list the “2020 New Independent Director in the proxy statement and the proxy card prepared, filed and delivered in connection with the 2021 Annual Meeting”), and (B) the . The Company further agrees that it shall recommend, support and solicit proxies for the election of the Founder New Independent Designee Director at the 2019 2021 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the Company’s other nominees nominated by director nominees. The Company shall use its reasonable best efforts to hold the 2021 Annual Meeting no later than July 1, 2021.
(ii) Prior to the 2021 Annual Meeting, the Board, and all applicable committees of the Board for election as directorsshall take all necessary actions to accept the retirement of Xxxx X. Xxxxxx from the Board, and such retirement shall be effective at the 2021 Annual Meeting.
(iii) If the New Independent Director (or any Replacement Independent Director (as defined below)) is not elected as a Founder director at the 2021 Annual Meeting, is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of (x) 3.0% of the Company’s then-outstanding Common Stock and (y) 791,487 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments)(the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Independent Designee is recommended for appointment Director in accordance with this Section 1(a)(iii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Independent Director”). Any Replacement Independent Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to the rules and regulations of the Nasdaq Stock Market (“Nasdaq”), (C) have the relevant financial and business experience to be a director of the Company and (D) unless otherwise consented to by the Board determines that and the Nominating and Corporate Governance Committee of the Board (the “Nominating and Corporate Governance Committee”), be independent of and not be an Affiliate (as defined below) of Starboard (for the avoidance of doubt, the nomination by Starboard of such Founder person to serve on the board of any other company shall not, in and of itself, cause such person to not be deemed independent of Starboard). The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such Replacement Independent Designee Director meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(iv) and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Independent Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation in favor of a Replacement Independent DesigneeDirector nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Replacement Independent Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s continued satisfaction recommendation of such Replacement Independent Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Replacement Independent Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Independent Director is elected to the Board. Subject to Nasdaq rules and applicable law, upon a Replacement Independent Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to increase the size appoint such Replacement Independent Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to Nasdaq rules and applicable law, until such time as any Replacement Independent Director is appointed to any applicable committee of the Board, another then-existing director designated by one Starboard will serve as an interim member of such applicable committee (subject to such director’s willingness to serve on such committee and appoint provided that such director is qualified to serve on such committee). Any Replacement Independent Director designated pursuant to this Section 1(a)(iii) replacing the Founder New Independent Designee Director prior to fill the newly created directorship effective immediately following printing of the later of (A) Company’s definitive proxy statement for the 2019 2021 Annual Meeting or shall stand for election at the 2021 Annual Meeting together with the other director nominees.
(Biv) The Company agrees that, subject to entering into a customary non-disclosure agreement with the determination Company in a form provided by the Company and to be agreed between the Parties, the New Independent Director may attend and participate in any meeting of the Board or any committee thereof held from the date of this Agreement (whether such meetings are held in person, telephonically or otherwise) until the conclusion of the 2021 Annual Meeting (the “Observer Period”) as a non-voting observer. The New Independent Director shall receive copies of all documents distributed to the Board or any of its committees during the Observer Period, including notice of all meetings of the Board or any of its committees, all written consents executed by the Board or any of its committees, all materials prepared for consideration at any meeting of the Board or any of its committees, and all minutes related to each meeting of the Board or any of its committees contemporaneous with their distribution (except to the extent any such materials are privileged as determined by the Board in good faith).
(v) The Company agrees that the Founder Independent Designee meets Board and all applicable committees of the Eligibility Requirements.Board shall take all necessary actions to (A)
Appears in 2 contracts
Samples: Shareholder Agreement (eHealth, Inc.), Shareholder Agreement (Starboard Value LP)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to (A) accept the resignations tendered by Xxxx X. Xxxxx, Xxxxx X. Xxxxxxxx, Xx. and Xxxxxx Xxxxxx as Class II directors of the Company, who the Company hereby represents have submitted, or shall no later than the date hereof submit, letters of resignation to the Board that will become effective immediately prior to the appointment of the Starboard Independent Appointees (as defined below) to the Board and (B) appoint R. Xxxx Xxxxxxx, Xxxxx Xxxxxxxx and Xxxxxxx Xxxxxxx (each a “Starboard Independent Appointee” and collectively, the “Starboard Independent Appointees”) as Class II directors of the Company with terms expiring at the 2020 Annual Meeting. The Company agrees that it will nominate the Starboard Independent Appointees for election at the 2020 Annual Meeting as Class II directors with terms expiring at the Company’s 2023 Annual Meeting of Stockholders and will recommend, support and solicit proxies for the election of the Starboard Independent Appointees at the 2020 Annual Meeting in the same manner as it recommends, supports, and solicits proxies for the election of the Company’s other Class II director nominee. The Company shall use its reasonable best efforts to hold the 2020 Annual Meeting no later than August 30, 2020.
(ii) If any Starboard Independent Appointee (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 1,388,180 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Starboard Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Starboard Replacement Director”). Any Starboard Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to NASDAQ listing standards, (C) have the relevant financial and business experience to be a director of the Company, (D) satisfy the publicly disclosed guidelines and policies of the Company with respect to service on the Board and (E) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard). The Nominations and Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director nominee meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(c)(iv) and (2) representatives of the Board have conducted customary interview(s) and background checks of such nominee, if such interviews or background checks are requested by the Board or the Nominations and Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) and background checks contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominations and Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominations and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominations and Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominations and Governance Committee’s recommendation of such Starboard Replacement Director; provided, however, that if the Board does not appoint such Starboard Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Starboard Replacement Director is elected to the Board. Subject to NASDAQ rules and applicable law, upon a Starboard Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to NASDAQ rules and applicable law, until such time as any Starboard Replacement Director is appointed to any applicable committee of the Board, the other Starboard Independent Appointee will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(ii) replacing a Starboard Independent Appointee prior to the mailing of the Company’s definitive proxy statement for the 2020 Annual Meeting shall stand for election at the 2020 Annual Meeting together with the other director nominees.
(iii) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the Board and all applicable committees of the Board shall not (A) increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of more than eleven (A11) the 2019 Annual Meeting directors or (B) seek to change the determination of classes on which the Board that members serve, in each case without the Founder Independent Designee meets the Eligibility Requirementsprior written consent of Starboard.
Appears in 2 contracts
Samples: Agreement (Starboard Value LP), Shareholder Agreement (Commvault Systems Inc)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to to: (A) increase the size of the Board by one member and appoint from nine (9) to eleven (11) directors (provided that the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to size of the Board shall automatically decrease to ten (10) directors at the 2019 Annual Meeting for a term expiring at conclusion of the Company’s 2020 Annual Meeting 2024 annual meeting of Stockholders Company stockholders (the “2020 2024 Annual Meeting”), ); and (B) appoint Xxxxxxxx Xxxxx, a Partner of Starboard Value LP (the “Starboard Appointee”), and Xxxxx Xxxxxx (the “Independent Appointee” and, together with the Starboard Appointee, the “New Directors”). The Company agrees that, provided that each New Director is able and willing to continue to serve on the Board, the Company shall will include each such newly appointed New Director in the Company’s slate of recommended nominees standing for election at the 2024 Annual Meeting and will recommend, support and solicit proxies for the election of the Founder Independent Designee New Directors at the 2019 2024 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the Company’s other nominees at the 2024 Annual Meeting. The Company agrees that the Board shall nominate only ten (10) individuals for election to the Board at the 2024 Annual Meeting, including the New Directors and eight (8) other incumbent directors of the other nominees nominated by Company. The Company shall use its reasonable best efforts to hold the Board for election as directors2024 Annual Meeting no later than May 30, 2024.
(iiiii) If any New Director (or any Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3.0% of the Company’s then-outstanding Common Shares and 2,610,619 Common Shares (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments)(such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee shall be referred to as a “Replacement Director,” and if and when such person becomes a director of the Board in accordance with this Section 1(a)(ii), such person shall be deemed a New Director for purposes of this Agreement). Any Replacement Director must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board (the “Nominating and Corporate Governance Committee”) (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to the Nasdaq Stock Market (the “Nasdaq”) listing standards, (C) have the relevant financial and business experience to serve as a director of the Company Company, (D) satisfy the publicly disclosed guidelines and policies with respect to service on the Board, including, without limitation, the Company’s Corporate Governance Guidelines, and (E) in the case of a Replacement Director who is replacing the Independent Appointee (or any replacement thereof), be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard, but any partner, officer or employee of Starboard (a “Starboard Representative”) would not be deemed independent of Starboard)(in the case of each of clauses (B) through (D), as reasonably determined by the Nominating and Corporate Governance Committee). Any Replacement Director who is replacing the Starboard Appointee (or any replacement thereof) who is a Starboard Representative will be approved and appointed to the Board determines that no later than five (5) business days following the submission of all completed documentation required by Section 1(c)(v), so long as such Founder Independent Designee Replacement Director qualifies as “independent” pursuant to the Nasdaq listing standards and satisfies the requirements of clause (D) of the preceding sentence. The Nominating and Corporate Governance Committee shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether such Replacement Director (other than any Replacement Director who is a Starboard Representative, who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria, assuming reasonable availability of such nominee, within ten (10) business days after March 22, 2019, (1) such nominee as a Replacement Director has submitted to the Company agrees thatthe documentation required by Section 1(c)(v) and (2) representatives of the Board have, if requested by the Company, conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person(s) in accordance with the procedures described above. Upon the recommendation of a nominee for Replacement Director by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s continued satisfaction recommendation of such Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Replacement Director is appointed to the Board. Upon the appointment of a Replacement Director to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation, retirement or removal or, if the Board or the applicable committee of the Board determines that the Replacement Director does not satisfy the requirements of the Nasdaq and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith), to an alternative committee of the Board chosen by Starboard. Subject to Nasdaq rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, the other New Director will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(ii) replacing a New Director prior to the 2024 Annual Meeting shall stand for election at the 2024 Annual Meeting together with the other director nominees.
(iii) During the period commencing with the date of this Agreement through the 2024 Annual Meeting, the Board and all applicable committees of the Board shall not increase the size of the Board by one member and appoint to more than eleven (11) directors without the Founder Independent Designee to fill prior written consent of Starboard. Effective upon the newly created directorship effective immediately following conclusion of the later of (A) the 2019 2024 Annual Meeting or (B) through the determination expiration of the Standstill Period, the Board and all applicable committees of the Board that shall not increase the Founder Independent Designee meets size of the Eligibility RequirementsBoard to more than ten (10) directors without the prior written consent of Starboard.
Appears in 2 contracts
Samples: Shareholder Agreement (Starboard Value LP), Shareholder Agreement (Bloomin' Brands, Inc.)
Board Appointments. (i) Promptly following The Company agrees that effective upon the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take or shall have taken all necessary actions to increase (A) accept the size resignations tendered by Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxxxx, M.D., Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx, Ph.D. as directors of the Company, who the Company hereby represents have submitted, or shall no later than the date hereof submit, letters of resignation to the Board by one member that will become effective upon the execution of this Agreement and (B) appoint the Founder Xxxxxx X. XxXxxxxx, Xxxx Xxxxx, Xxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xx. and Xxxxxxx X. Xxxx (each a “Starboard Independent Designee to fill the newly created directorship effective immediately, Appointee” and nominate, along with its other nomineescollectively, the Founder “Starboard Independent Designee Appointees”) as directors of the Company with terms expiring at the 2020 Annual Meeting. The Company agrees that, subject to their consent to serve, the Board shall nominate (A) the Starboard Independent Appointees and (B) Xxxxx X. Xxxxx M.D., Xxxx X. Xxxxx, Xxxxxx Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxx X. Carlo, M.D. (the “Continuing Directors”) for election to the Board at the 2019 2020 Annual Meeting for a term terms expiring at the Company’s 2020 2021 Annual Meeting of Stockholders Shareholders (the “2020 2021 Annual Meeting”), ) and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Starboard Independent Designee Appointees at the 2019 2020 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by Continuing Directors. The Company shall use its reasonable efforts to hold the Board for election as directors2020 Annual Meeting no later than September 10, 2020. The Company shall use its reasonable best efforts to hold the 2021 Annual Meeting no later than May 28, 2021.
(iiiii) If any Starboard Independent Appointee (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 2,566,025 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments)(the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Starboard Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Starboard Replacement Director”). Any Starboard Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company Company, and (D) unless otherwise consented to by the Board and the Nominating and Corporate Governance Committee, be independent, and not be an Affiliate (as defined below), of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not, in and of itself, cause such person to not be deemed independent of Starboard). The Nominating and Corporate Governance Committee of the Board determines that (the “Nominating and Corporate Governance Committee”) shall make its determination and recommendation regarding whether such Founder Independent Designee Starboard Replacement Director meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(iv), including such nominee’s consent to a customary background check, and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct the background check and any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, with respect to the interview(s), assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s continued satisfaction recommendation of such Starboard Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Starboard Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Starboard Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Starboard Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to NYSE rules and applicable law, until such time as any Starboard Replacement Director is appointed to any applicable committee of the Board, one of the other Starboard Independent Appointees (as designated by Starboard) will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(ii) replacing a Starboard Independent Appointee prior to the mailing of the Company’s definitive proxy statement for the 2020 Annual Meeting shall stand for election at the 2020 Annual Meeting together with the other director nominees.
(iii) Concurrent with the execution of this Agreement, Xx. Xxxxx shall execute and deliver to the Company an advance irrevocable resignation letter pursuant to which he shall resign from the Board and all applicable committees thereof effective upon conclusion of the 2021 Annual Meeting (the “Retirement Date”). At the Retirement Date, the Board and all applicable committees of the Board shall take all necessary actions to accept the resignation of Xx. Xxxxx from the Board and all applicable committees thereof.
(iv) The Company hereby confirms that, concurrently with the execution of this Agreement, the Company and Xx. Xxxxx have entered into a Separation Agreement (the “Separation Agreement”) pursuant to which, among other things, Xx. Xxxxx has retired as Chief Executive Officer of the Company. Prior to the date of this Agreement, a true copy of the fully executed Separation Agreement has been furnished to Starboard.
(v) The Company agrees that immediately following the execution of this Agreement, the Board and all applicable committees of the Board shall take all necessary actions to appoint Xx. Xxxxxxx as Chair of the Board. Xx. Xxxxxxx shall continue to serve in such position for the duration of the Standstill Period.
(vi) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the Board and all applicable committees of the Board shall not increase the size of the Board by one member and appoint to more than eleven (11) directors provided, however, the Founder Board may be increased during this period upon Starboard’s prior written consent to increase the size of the Board.
(vii) The Company agrees that the Board, which includes the Starboard Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination Appointees, will hold a meeting of the Board no later than prior to the opening of trading on the NYSE on the first business day following the date of this Agreement.
(viii) The Company agrees that during the Standstill Period, Xxxxx X. Xxxxxxxxx shall be an observer to the Board (the “Starboard Observer”) and shall receive copies of all documents distributed to the Board during the Standstill Period, including notice of all meetings of the Board, all written consents executed by the Board, all materials prepared for consideration at any meeting of the Board, and all minutes related to each meeting of the Board contemporaneous with their distribution to the Board. The Starboard Observer shall have the right to attend and participate, but not vote, at all meetings of the Board during the Standstill Period (whether such meetings are held in person, telephonically or otherwise). For the avoidance of doubt, the Starboard Observer shall have the right to request and shall be granted access to all of the documents that are accessible by all members of the Board. In addition, the Starboard Observer shall have the right to attend and participate, but not vote, at all meetings of the Strategy Committee (as defined below), the Compensation Committee of the Board (the “Compensation Committee”) and the Nominating and Corporate Governance Committee during the Standstill Period (whether such meetings are held in person, telephonically or otherwise) and shall receive copies of all documents distributed to such committees during the Standstill Period, including notice of all meetings of such committees, all written consents executed by such committees, all materials prepared for consideration at any meeting of such committees, and all minutes related to each meeting of such committees contemporaneous with their distribution to the members of such committees. The Starboard Observer will agree to comply with all confidentiality, corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and xxxxxxx xxxxxxx policies and guidelines of the Company that have been provided to the Starboard Observer. Notwithstanding the foregoing, the Company reserves the right to exclude the Starboard Observer from access to any material or meeting or portion thereof if, and only to the extent that, the Board determines reasonably and in good faith that (i) such exclusion is necessary to preserve the attorney-client privilege or (ii) access to such material or meeting or portion thereof could result in a conflict of interest between Starboard or the Starboard Observer and the Company. As a condition to serving as the Starboard Observer, the Starboard Observer shall deliver to the Company an executed confidentiality agreement in a form to be agreed between the Parties prior to the date of this Agreement, and shall also agree to hold any information received as the Starboard Observer subject to the fiduciary duties that he or she would have to the Company and its shareholders were he or she a director of the Company. The Company agrees to indemnify the Starboard Observer to the same extent, and subject to the same conditions and limitations, that all directors of the Company are indemnified by the Company, provided that the Founder Independent Designee meets foregoing indemnification shall not be applicable if a court of competent jurisdiction determines that the Eligibility RequirementsStarboard Observer either violated the terms of this Agreement, including by breaching his or her fiduciary duties, such as the duty of loyalty, or the acts in question were the result of the Starboard Observer’s bad faith misconduct.
Appears in 1 contract
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest In connection with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 20192022 Annual Meeting, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall promptly take all necessary actions to (A) increase the size of the Board by one member from five (5) to six (6) directors, (B) nominate Xxxxx X. Xxxxx (“PH Xxxxx”) and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, Xxxxxx X. Xxxxx (“Xxxxx”) (each a “New Appointee” and nominate, along with its other nomineescollectively, the Founder Independent Designee “New Appointees”) for election to the Board at the 2019 2022 Annual Meeting as directors of the Company for a term terms expiring at the Company’s 2020 2023 Annual Meeting of Stockholders (the “2020 2023 Annual Meeting”). The Company acknowledges that Xxxxxx X. Xxxxxxxx, Xx. will retire as a director of the Company upon the conclusion of the 2022 Annual Meeting when his current term of service expires. The Company shall use its reasonable best efforts to hold the 2022 Annual Meeting no later than August 31, 2022.
(ii) The Company agrees that (A) the Board shall nominate the New Appointees for election to the Board at the 2022 Annual Meeting, subject to their consent to serve, for terms expiring at the Company’s 2023 Annual Meeting; and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee New Appointees at the 2019 2022 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the Company’s other nominees nominated by the Board for election as directorsdirector nominee.
(iii) In advance of the 2022 Annual Meeting, the Company agrees to provide, in its reasonable discretion, onboarding materials to each New Appointee to facilitate their readiness to join the Board upon election at the 2022 Annual Meeting, including without limitation prior board meeting materials and minutes, strategic plans, operating budgets, organizational charts, and any relevant compensation plans or arrangements, as reasonably requested by the New Appointees (collectively, the “Onboarding Information”); provided that the Company shall not be required to provide any Onboarding Information that would be reasonably be expected to compromise attorney-client privilege. The New Appointees’ receipt of the Onboarding Information shall be subject to a non-disclosure agreement with the Company to be agreed between the Parties.
(iv) If at any time prior to the expiration of the Standstill Period (as defined below), (x) Xxxxx (or any Replacement Director) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director or (y) PH Xxxxx is physically unable to serve as a director due to injury or disability, and at such time (A) Xxxxx beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 10% of the Company’s then-outstanding Common Stock and 562,620 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”) and (B) Xxxxx has not committed a material breach of this Agreement (except to the extent where such breach is capable of being cured, Xxxxx has cured such breach within 10 days’ of receipt of written notice of such breach from the Company), Xxxxx shall have the ability to recommend a person to be a replacement director in accordance with this Section 1(a)(iv) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to Nasdaq listing standards and (C) have the relevant financial and business experience to be a director of the Company. The Nominating Committee shall make its determination and recommendation regarding whether such proposed Replacement Director meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(c)(iv) and (2) representatives of the Board determines that have conducted customary interview(s) of such Founder Independent Designee meets nominee, if such interviews are requested by the Eligibility Requirements Board or the Nominating Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iv) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after March 22Xxxxx’x submission of such nominee. In the event the Nominating Committee does not accept a person recommended by Xxxxx as the Replacement Director, 2019, Xxxxx shall have the Company agrees that, right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of such Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iv), the Parties shall continue to follow the procedures of this Section 1(a)(iv) until a Replacement Director is elected to the Board for the 2022 term. Subject to Nasdaq rules and applicable law, upon a Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to Nasdaq rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, the other New Appointee will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iv) replacing a New Appointee prior to the mailing of the Company’s definitive proxy statement for the 2022 Annual Meeting shall stand for election at the 2022 Annual Meeting together with the other director nominees. Following the appointment of any Replacement Director to replace a New Appointee in accordance with this Section 1(a)(iv), all references to such New Appointee herein shall be deemed to include any Replacement Director (it being understood that this sentence shall apply whether or not references to the New Appointees expressly state that they include any Replacement Director).
(v) During the Standstill Period (as defined below), the Board and all applicable committees of the Board shall not increase the size of the Board by one member and appoint to more than six (6) directors without the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination unanimous consent of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
Appears in 1 contract
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to i. The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees and subcommittees of the Board shall take all necessary actions, effective immediately following the execution of this Agreement and satisfaction of the conditions set forth herein, to (A) set the size of the Board at seven (7) members and (B) nominate and appoint Tyler Xxxxx, Xxxxxx Agreed Appointees follows: (A) Xxxxx Xxxxx and Xxxxxx Xxxxx, in each case as Class B directors with terms 2018
ii. The Company agrees that the Board shall nominate, recommend, support and solicit proxies solely for (A) the Class C Appointee as a Class C director with a term Annual Meeting of Shareholders and (B) Xxxxxx X. Xxxxxxx as
iii. In the event any Agreed Appointee (or any Replacement Director) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director or is removed as a director or ceases to be a director for any other reason (including as the result of a failure to receive the requisite number of votes at the applicable Annual Meeting of Shareholders of the Company), subject to the terms of this Section 1(a)(iii), with respect to such Agreed Appointee, RBM or its Designee (as defined below) shall have the ability to recommend a substitute Agreed Appointee in accordance with the process set forth in Section 1(a)(iv) below (a Replacement Director the right to appoint a Replacement Director hereunder, the RBM Parties, in the aggregate, own less than the lesser of 1% of the then outstanding Common Stock and 406,404 shares of Common Stock (subject to adjustments for stock splits, reclassifications, combinations and similar adjustments), RBM or its Designee shall not have the right to appoint such Replacement appointment to the Board, the Board and all applicable committees and subcommittees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee or subcommittee of the Board of which the replaced director was a member and applicable law, until such time as any Replacement Director is appointed to any applicable committee or subcommittee, one of the other Agreed Appointees (as designated by RBM or its Designee) who meets the requirements for membership on such committee or subcommittee will serve as an interim member of such applicable committee or subcommittee. Any Replacement Director designated pursuant to this Section 1(a)(iii) to replace the Class C Appointee or Replacement Director prior to the mailing of the Compa director nominee.
iv. The Replacement Director must be an individual that is either
(A) a member, partner, employee or affiliate of RBM or (B) another individual, who in the case NYSE listing standards (other than any standards that take into account ownership of any shares of the Common Stock Board Criteria The Nominating and Corporate Governance Nominating Committee ination and recommendation which it shall undertake reasonably and in good faith and which shall be limited to only whether any candidate recommended as a Replacement Director meets the Board Criteria within five (5) business days following written receipt of such recommendation from RBM or its Designee; provided that any Replacement Director candidate who is a member, partner, employee or affiliate of RBM will be deemed to satisfy the Board Criteria and will be approved and appointed to the Board within (5) five business days of such designation from RBM or its NYSE listing standards (other than any standards that take into account ownership of any Common Stock or other securities of the Company) and submits all completed documentation required pursuant to Section 1(h)(v) reasonably satisfactorily to the Nominating Committee; provided, further, that RBM and the other RBM Parties agree that, at any time, only two of Director(s) then on the Board) may be citizens or residents of the United States under Rule 405 of the Securities Act of 1933, as amended, and Rule 3b-4(c) of the Exchange Act (as defined below). Without limiting the rights of RBM in accordance with the proviso to the previous sentence, in the event the Nominating Committee does not accept a Replacement Director candidate recommended by RBM or its Designee, RBM or its Designee shall have the right to recommend further Replacement Director candidates whose appointment shall be subject to the Nominating Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director candidate by the Nominating Committee, the Board shall take all actions necessary to appoint such Replacement Director recommendation of such Replacement Director candidate; provided, however, that if the Board, in breach of its obligation hereunder, subject to the conditions herein, to appoint any Replacement Director candidate recommended by the Nominating Committee, does not appoint a candidate recommended by RBM or its Designee as a Replacement Director to the Board pursuant to this Section 1(a)(iv), the Parties shall continue to follow the procedures of this Section 1(a)(iv) until a Replacement Director recommended by RBM or its Designee shall have been appointed to the Board. Effective upon the appointment of a Replacement Director to the Board, such Replacement Director will be considered an Agreed Appointee for all purposes of this Agreement. The RBM Parties shall beneficially own, as of the record date for the 2018 Annual Meeting, at least the lesser of 1% of the then outstanding Common Stock and 406,404 shares of Common Stock (subject to adjustments for stock splits, reclassifications, combinations and similar adjustments).
v. The Board shall not take any action to increase the size of the Board by one member to more than seven (7) directors, without the prior written consent of RBM or Tyler Designee
vi. The Company agrees that neither the Board nor any applicable committees and appoint subcommittees of the Founder Independent Designee Board shall change or seek to fill change the newly created directorship effective immediately, classes on which necessary in connection with the nomination of directors at the 2018 Annual Meeting in accordance with Section 1(a)(ii) or as otherwise set forth in Section 1(a)(ii) (provided that the Board will not move an Agreed Appointee from the class to which such Agreed Appointee was appointed in accordance with Section 1(a)(i) or reduce the number of Class B or Class C
vii. The Company agrees that it will nominate two (and nominate, along with its other nominees, the Founder Independent Designee only two) directors who shall be Class A directors for election to the Board at the 2019 Annual Meeting Meeting.
viii. In the event that any of Xxxxxxx X. Xxxxxxxxxxxx, Xxxxxxxx Xxxxx, Xxxxxx Xxxxxxx or Xxxxxxxxxxxx Koutsomitopoulos (or any replacement thereof pursuant to this Section 1(a)(viii)) is (A) unable or unwilling to serve as a director and ceases to be a director, (B) resigns as a director, (C) is removed as a director or (D) ceases to be a director for any other reason (including as a term expiring result of a failure to receive the requisite number of votes at the Company’s 2020 applicable Annual Meeting of Stockholders (the “2020 Annual Meeting”Shareholders of the Company), and (B) such director shall be replaced by a new director recommended to the Company shall recommendBoard by the Nominating Committee and, support and solicit proxies for immediately thereafter, appointed by the election Board, provided that any substitute director so designated to replace was not a citizen or resident of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election United States shall also not be a citizen or resident of the other nominees nominated by the Board for election as directorsUnited States.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the ix. The Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, that the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship Board, effective no later than immediately following the later appointment of (A) the 2019 Annual Meeting or (B) the determination each Agreed purposes of the Board that the Founder Independent Designee meets the Eligibility Requirements.any change of control,
Appears in 1 contract
Samples: Board Composition Agreement
Board Appointments. (i) Promptly following The Company agrees that effective upon the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take or shall have taken all necessary actions to increase (A) accept the size resignations tendered by Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxxxxxx, M.D., Xxxxxx X. Xxxxxx and Xxxxxxx X. Xxxx, Ph.D. as directors of the Company, who the Company hereby represents have submitted, or shall no later than the date hereof submit, letters of resignation to the Board by one member that will become effective upon the execution of this Agreement and (B) appoint the Founder Xxxxxx X. XxXxxxxx, Xxxx Xxxxx, Xxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xx. and Xxxxxxx X. Xxxx (each a “Starboard Independent Designee to fill the newly created directorship effective immediately, Appointee” and nominate, along with its other nomineescollectively, the Founder “Starboard Independent Designee Appointees”) as directors of the Company with terms expiring at the 2020 Annual Meeting. The Company agrees that, subject to their consent to serve, the Board shall nominate (A) the Starboard Independent Appointees and (B) Xxxxx X. Xxxxx M.D., Xxxx X. Xxxxx, Xxxxxx Kadre, Xxxxxxx X. Xxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxx X. Carlo, M.D. (the “Continuing Directors”) for election to the Board at the 2019 2020 Annual Meeting for a term terms expiring at the Company’s 2020 2021 Annual Meeting of Stockholders Shareholders (the “2020 2021 Annual Meeting”), ) and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Starboard Independent Designee Appointees at the 2019 2020 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by Continuing Directors. The Company shall use its reasonable efforts to hold the Board for election as directors2020 Annual Meeting no later than September 10, 2020. The Company shall use its reasonable best efforts to hold the 2021 Annual Meeting no later than May 28, 2021.
(iiiii) If any Starboard Independent Appointee (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 2,566,025 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments)(the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Starboard Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Starboard Replacement Director”). Any Starboard Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company Company, and (D) unless otherwise consented to by the Board and the Nominating and Corporate Governance Committee, be independent, and not be an Affiliate (as defined below), of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not, in and of itself, cause such person to not be deemed independent of Starboard). The Nominating and Corporate Governance Committee of the Board determines that (the “Nominating and Corporate Governance Committee”) shall make its determination and recommendation regarding whether such Founder Independent Designee Starboard Replacement Director meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(iv), including such nominee’s consent to a customary background check, and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct the background check and any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, with respect to the interview(s), assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s continued satisfaction recommendation of such Starboard Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Starboard Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Starboard Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Starboard Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to NYSE rules and applicable law, until such time as any Starboard Replacement Director is appointed to any applicable committee of the Board, one of the other Starboard Independent Appointees (as designated by Starboard) will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(ii) replacing a Starboard Independent Appointee prior to the mailing of the Company’s definitive proxy statement for the 2020 Annual Meeting shall stand for election at the 2020 Annual Meeting together with the other director nominees.
(iii) Concurrent with the execution of this Agreement, Xx. Xxxxx shall execute and deliver to the Company an advance irrevocable resignation letter pursuant to which he shall resign from the Board and all applicable committees thereof effective upon conclusion of the 2021 Annual Meeting (the “Retirement Date”). At the Retirement Date, the Board and all applicable committees of the Board shall take all necessary actions to accept the resignation of Xx. Xxxxx from the Board and all applicable committees thereof.
(iv) The Company hereby confirms that, concurrently with the execution of this Agreement, the Company and Xx. Xxxxx have entered into a Separation Agreement (the “Separation Agreement”) pursuant to which, among other things, Xx. Xxxxx has retired as Chief Executive Officer of the Company. Prior to the date of this Agreement, a true copy of the fully executed Separation Agreement has been furnished to Starboard.
(v) The Company agrees that immediately following the execution of this Agreement, the Board and all applicable committees of the Board shall take all necessary actions to appoint Xx. Xxxxxxx as Chair of the Board. Xx. Xxxxxxx shall continue to serve in such position for the duration of the Standstill Period.
(vi) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the Board and all applicable committees of the Board shall not increase the size of the Board by one member and appoint to more than eleven (11) directors provided, however, the Founder Board may be increased during this period upon Starboard’s prior written consent to increase the size of the Board.
(vii) The Company agrees that the Board, which includes the Starboard Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination Appointees, will hold a meeting of the Board no later than prior to the opening of trading on the NYSE on the first business day following the date of this Agreement.
(viii) The Company agrees that during the Standstill Period, Xxxxx X. Xxxxxxxxx shall be an observer to the Board (the “Starboard Observer”) and shall receive copies of all documents distributed to the Board during the Standstill Period, including notice of all meetings of the Board, all written consents executed by the Board, all materials prepared for consideration at any meeting of the Board, and all minutes related to each meeting of the Board contemporaneous with their distribution to the Board. The Starboard Observer shall have the right to attend and participate, but not vote, at all meetings of the Board during the Standstill Period (whether such meetings are held in person, telephonically or otherwise). For the avoidance of doubt, the Starboard Observer shall have the right to request and shall be granted access to all of the documents that are accessible by all members of the Board. In addition, the Starboard Observer shall have the right to attend and participate, but not vote, at all meetings of the Strategy Committee (as defined below), the Compensation Committee of the Board (the “Compensation Committee”) and the Nominating and Corporate Governance Committee during the Standstill Period (whether such meetings are held in person, telephonically or otherwise) and shall receive copies of all documents distributed to such committees during the Standstill Period, including notice of all meetings of such committees, all written consents executed by such committees, all materials prepared for consideration at any meeting of such committees, and all minutes related to each meeting of such committees contemporaneous with their distribution to the members of such committees. The Starboard Observer will agree to comply with all confidentiality, corporate governance, conflict of interest, Regulation FD, code of conduct and ethics, and xxxxxxx xxxxxxx policies and guidelines of the Company that have been provided to the Starboard Observer. Notwithstanding the foregoing, the Company reserves the right to exclude the Starboard Observer from access to any material or meeting or portion thereof if, and only to the extent that, the Board determines reasonably and in good faith that (i) such exclusion is necessary to preserve the attorney-client privilege or (ii) access to such material or meeting or portion thereof could result in a conflict of interest between Starboard or the Starboard Observer and the Company. As a condition to serving as the Starboard Observer, the Starboard Observer shall deliver to the Company an executed confidentiality agreement in a form to be agreed between the Parties prior to the date of this Agreement, and shall also agree to hold any information received as the Starboard Observer subject to the fiduciary duties that he or she would have to the Company and its shareholders were he or she a director of the Company. The Company agrees to indemnify the Starboard Observer to the same extent, and subject to the same conditions and limitations, that all directors of the Company are indemnified by the Company, provided that the Founder Independent Designee meets foregoing indemnification shall not be applicable if a court of competent jurisdiction determines that the Eligibility RequirementsStarboard Observer either violated the terms of this Agreement, including by breaching his or her fiduciary duties, such as the duty of loyalty, or the acts in question were the result of the Starboard Observer’s bad faith misconduct.
Appears in 1 contract
Samples: Shareholder Agreement (Mednax, Inc.)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement, to increase (A) accept the size resignations tendered by Xxxx X. Xxxxxx, Xxxxx X. Xxxxx, and Xxxx Xxxx Xxxxxxxxx, as directors of the Company, who the Company hereby represents have submitted, or shall no later than the date hereof submit, letters of resignation to the Board by one member and appoint that will become effective upon the Founder Independent Designee to fill the newly created directorship effective immediatelyexecution of this Agreement, and nominate(B) appoint Xxxxx Xxxxx, along with its other nomineesXxxxx Xxxxxxx and Xxxxxx Xxxx (each a “New Director” and collectively, the Founder Independent Designee “New Directors”) as directors of the Company. Exhibit 10.1
(ii) The Company agrees, provided that each New Director is able and willing to continue to serve on the Board, that it will nominate the New Directors for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 2025 Annual Meeting of Stockholders (the “2020 2025 Annual Meeting”), ) and (B) the Company shall will recommend, support and solicit proxies for the election of the Founder Independent Designee New Directors at the 2019 2025 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the Company’s other nominees nominated by director nominees. The Company shall use its reasonable best efforts to hold the Board for election as directors2025 Annual Meeting no later than June 20, 2025.
(iii) If any New Director (or any Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 10,579,406 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(iii) (any such replacement nominee shall be referred to as a “Replacement Director” and if and when such person becomes a director of the Company in accordance with this Section 1(a)(iii), such person shall be deemed a New Director for purposes of this Agreement). Any Replacement Director must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board (the “Nominating and Governance Committee”) and the Board determines that (such Founder Independent Designee acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company, (D) satisfy the Company’s publicly disclosed guidelines and policies with respect to service on the Board, including, without limitation, the Company’s Corporate Governance Guidelines, and (E) unless otherwise consented to by the Board and the Nominating and Governance Committee, be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard, but any partner, officer or employee of Starboard would not be deemed independent of Starboard). The Nominating and Governance Committee shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether such nominee for a Replacement Director meets the Eligibility Requirements foregoing criteria, assuming reasonable availability of such candidate, within ten (10) business days after March 22, 2019, the date (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(v) and (2) representatives of the Exhibit 10.1 Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Governance Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating and Governance Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Governance Committee recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation, retirement or removal, or if the Board or the applicable committee of the Board determines that the Replacement Director does not satisfy the requirements of the NYSE rules and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith), to an alternative committee of the Board. Subject to NYSE rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, one of the other New Directors will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iii) replacing a New Director prior to the 2025 Annual Meeting shall stand for election at the 2025 Annual Meeting together with the other director nominees.
(iv) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the size of the Board will not exceed eleven (11) directors, provided, however, the Board may be increased during this period (A) solely to accommodate the appointment of the New CEO (as defined below) as a director of the Company as contemplated by Section 1(a)(v) or (B) upon Starboard’s prior written consent to increase the size of the Board.
(v) Immediately following the 2025 Annual Meeting, the Company and the Board by one member and shall take all necessary actions to appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination new Chief Executive Exhibit 10.1 Officer of the Board Company (the “New CEO”) as a director of the Company. Subject to NYSE rules and applicable law, during the period commencing on the date of appointment of the New CEO by the Company until the date that the Founder Independent Designee meets New CEO is appointed to the Eligibility RequirementsBoard, the New CEO will have the same rights as a director on the Board.
Appears in 1 contract
Samples: Healthcare Agreements (Healthcare Realty Trust Inc)
Board Appointments. i. The Company agrees that in accordance with the Company’s Amended and Restated Certificate of Incorporation (ithe “Charter”) Promptly and Amended and Restated By-Laws (the “Bylaws”), Delaware law and this Agreement, no later than three (3) business days following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase (including by increasing the size of the Board by one member and Board) to appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election Appointees to the Board and apportion the Independent Appointees among the classes of directors such that the Independent Appointees and the five (5) directors serving on the Board immediately prior to the execution of this Agreement are apportioned among the classes of directors as set forth on Exhibit A.
ii. In addition to the Independent Appointees, during the Standstill Period (as defined below), Starboard shall have the right to recommend two additional directors for appointment to the Board as follows: (A) an individual who meets the criteria set forth in Section 1(a)(iv) (the “Additional Independent Appointee”) and (B) an individual that is either
(1) one (1) of Starboard’s partners or (2) another individual who meets the criteria set forth in Section 1(a)(iv) (the “Starboard Appointee”), provided that with respect to the appointment of the Starboard Appointee, such appointment right shall continue so long as Starboard’s Ownership is at least the lesser of 4.0% of the Company’s then outstanding Common Stock and 2,292,169 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”). If the Starboard Appointee is one of Starboard’s partners, then such Starboard partner will be approved and appointed to the Board no later than five (5) business days following the submission of all completed documentation required by Sections 1(i)(iv) and 1(i)(v) and so long as such Starboard partner qualifies as “independent” pursuant to Applicable Exchange Standards (as defined below). With respect to the appointment of any Starboard Appointee who is not a Starboard partner and the Additional Independent Appointee, the Parties shall follow the procedures set forth in Section 1(a)(v). For the avoidance of doubt, if the Additional Independent Appointee and/or the Starboard Appointee, as the case may be, are appointed to the Board prior to the mailing of the Company’s definitive proxy statement for the next annual meeting of stockholders of the Company (the “Next Annual Meeting”), the Starboard Appointee and/or the Additional Independent Appointee shall stand for election at the Next Annual Meeting along with the other Director Nominees (as defined below). Subject to any amendments to the Charter or Bylaws solely as they may relate to the terms of any directors, the Starboard Appointee shall serve as a Class II director with a term expiring at the Company’s 2021 annual meeting of stockholders and the Additional Independent Appointee shall serve as a Class III director with a term expiring at the Company’s 2019 annual meeting of stockholders (the “2019 Annual Meeting”).
iii. In addition to the Starboard Appointee, the Additional Independent Appointee and the Independent Appointees, during the Standstill Period, Starboard shall have the right to recommend one additional independent director to the Board who shall be appointed to the Board in accordance with the procedures set forth in Section 1(a)(v) (the “Conditional Independent Appointee” and, together with the Independent Appointees, the Starboard Appointee and the Additional Independent Appointee, the “Appointed Directors”) if and only if (A) Starboard’s Ownership meets the Minimum Ownership Threshold and (B) the Company has not filed with the Securities and Exchange Commission (the “SEC”) any or all of the audited financial statements for the Company’s fiscal years ended December 31, 2015, December 31, 2016 and December 31, 2017 (collectively, the “Audited Financial Statements”) on or prior to March 31, 2018 (the “Filing Deadline”);provided, however, that the Company shall have no obligation to appoint the Conditional Independent Appointee in accordance with the terms of this Agreement if the Audited Financial Statements are filed with the SEC no later than thirty (30) days after the Filing Deadline. For the avoidance of doubt, if the Conditional Independent Appointee is appointed prior to the mailing of the Company’s definitive proxy statement for the Next Annual Meeting, the Conditional Independent Appointee shall stand for election at the Next Annual Meeting for along with the other Director Nominees. Subject to any amendments to the Charter or Bylaws solely as they may relate to the terms of any directors, the Conditional Independent Appointee shall serve as a Class I director with a term expiring at the Company’s 2020 Annual Meeting annual meeting of Stockholders stockholders.
iv. Any Starboard Appointee who is not a partner of Starboard, any Additional Independent Appointee and any Conditional Independent Appointee (each an “Additional Independent Director”) must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (C) qualify as “independent” pursuant to Nasdaq Stock Market listing standards (or applicable requirements of such other national securities exchange designated as the primary market on which the Company’s Common Stock is listed for trading (the “2020 Annual MeetingApplicable Exchange Standards”)), (D) have the relevant financial and business experience to be a director of the Company, and (E) meet the Company’s publicly disclosed guidelines and policies with respect to service on the Board (the “Corporate Governance Guidelines and Policies”) as in effect as of the date of this Agreement (clauses (C) through (E), the “Director Criteria”).
v. The Company’s Nominating and Governance Committee (the “Nominating and Governance Committee”) shall make its determination and recommendation regarding whether an Additional Independent Director meets the criteria set forth in clauses (A) through (E) in Section 1(a)(iv) within five (5) business days after (A) such Additional Independent Director candidate has submitted to the Company the documentation required by Section 1(i)(v) and (B) representatives of the Board have conducted customary interview(s) of such Additional Independent Director candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(v) as promptly as practicable, but in any case, assuming reasonable availability of the applicable Additional Independent Director candidate, within ten (10) business days, after Starboard’s submission of such Additional Independent Director candidate. In the event the Nominating and Governance Committee does not accept an Additional Independent Director candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Independent Director candidate(s) whose appointment shall be subject to the Nominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Independent Director by the Nominating and Governance Committee, the Board shall vote on the appointment of such Additional Independent Director to the Board no later than five (5) calendar days after the Nominating and Governance Committee’s recommendation of such Additional Independent Director and shall take all necessary actions (including by increasing the size of the Board) to appoint such Additional Independent Director to the Board; provided, however, that if the Board does not elect such Additional Independent Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until an Additional Independent Director is elected to the Board.
vi. At the Next Annual Meeting and at any other annual meeting of stockholders of the Company held during the Standstill Period, the Board will nominate and recommend, and the Company will support and solicit proxies only for the following directors: (A) the Independent Appointees; (B) the Starboard Appointee (if appointed as of such time); (C) the Additional Independent Appointee (if appointed as of such time); (D) the Conditional Independent Appointee (if appointed as of such time); (E) five (5) additional directors recommended by the Nominating and Governance Committee (such five (5) additional directors, the “Additional Directors”); and (F) any other director that may be appointed pursuant to Section 1(a)(viii) (the directors referred to in clauses (A) through (F), collectively and to the extent appointed as of such time, the “Director Nominees”). For the avoidance of doubt, the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at Appointees, the 2019 Annual Meeting Starboard Appointee (if appointed as of such time), the Additional Independent Appointee (if appointed as of such time) and the Conditional Independent Appointee (if appointed as of such time) in the same manner as it recommends, supports and solicits proxies for the election Additional Directors at the Next Annual Meeting and at any other annual meeting of stockholders of the other nominees nominated by Company held during the Board for election as directorsStandstill Period.
vii. If any Appointed Director (iiior any Starboard Replacement Director (as defined below)) If is unable or unwilling to serve as a Founder Independent Designee is recommended for appointment director, resigns as a director or is removed as a director prior to the expiration of the Company Standstill Period, and at such time Starboard’s Ownership is at least the lesser of 3.0% of the Company’s then outstanding Common Stock and 1,719,127 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(vii) (any such replacement nominee shall be referred to as a “Starboard Replacement Director”). For the avoidance of doubt, any Starboard Replacement Director replacing the Starboard Appointee (irrespective of whether such Starboard Appointee is a Starboard partner) can be either (A) a Starboard partner or (B) another individual who meets the criteria set forth in this Section 1(a)(vii). Any Starboard Replacement Director must satisfy the Director Criteria and, in the case of any Starboard Replacement Director who is not a Starboard partner, must be (A) reasonably acceptable to the Board determines that (such Founder Independent Designee acceptance not to be unreasonably withheld) and (B) independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard). Any Starboard Replacement Director who is replacing the Starboard Appointee and who is a partner of Starboard will be approved and appointed to the Board no later than five (5) business days following the submission of all completed documentation required by Sections 1(i)(iv) and 1(i)(v) so long as such Starboard Replacement Director qualifies as “independent” pursuant to the Applicable Exchange Standards. The Nominating and Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director (other than any Starboard Replacement Director who is a Starboard partner, who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(i)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(vii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating and Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating and Governance Committee recommendation of such Starboard Replacement Director; provided, however, that if the Board does not elect such Starboard Replacement Director to the Board pursuant to this Section 1(a)(vii), the Parties shall continue to follow the procedures of this Section 1(a)(vii) until a Starboard Replacement Director is elected to the Board. Upon a Starboard Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to increase appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Until such time as any Starboard Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(vii) that is replacing an Appointed Director prior to the mailing of the Company’s definitive proxy statement for the Next Annual Meeting shall stand for election at the Next Annual Meeting together with the other Director Nominees.
viii. During the period commencing with the date hereof through the expiration or termination of the Standstill Period, the Board and all applicable committees of the Board shall take all necessary actions (including with respect to nominations for election at the Next Annual Meeting or at any other annual meeting of stockholders of the Company held during the Standstill Period) so that the size of the Board by one member and appoint is no more than eight (8) directors; provided, however, the Founder Independent Designee Board may be increased during this period solely to fill the newly created directorship effective immediately following the later of accommodate (A) the 2019 Annual Meeting or Starboard Appointee, (B) the determination Additional Independent Appointee, (C) the Conditional Independent Appointee and (D) one (1) additional director designated by a non-Starboard investor as a condition of the Board that the Founder Independent Designee meets the Eligibility Requirementsany Offering (as defined below).
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Samples: Agreement (Starboard Value LP)
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase (including by increasing the size of the Board by one member and Board) to appoint Xxxxxxx Xxxxx (the Founder “Starboard Appointee”) as a director of the Company. The Starboard Appointee shall stand for election at the 2016 annual meeting of stockholders of the Company (the “2016 Annual Meeting”) together with the Company’s other nominees. In addition to the Starboard Appointee, Starboard shall have the right, following execution of this Agreement, to recommend two additional independent directors (the “Independent Designee Appointees”) to fill the newly created directorship effective immediately following the later of Board. Each Independent Appointee must (A) be reasonably acceptable to the 2019 Annual Meeting or Board (such acceptance not to be unreasonably withheld), (B) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard), (C) qualify as “independent” pursuant to NYSE listing standards and (D) have the relevant financial and business experience to be a director of the Company (clauses (C) and (D), the “Director Criteria”). The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such person meets the foregoing criteria within five (5) business days after (1) such Independent Appointee candidate has submitted to the Company the documentation required by Section 1(f)(v) and (2) representatives of the Board have conducted customary interview(s) of such Independent Appointee candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this section as promptly as practicable, but in any case, assuming reasonable availability of the applicable Independent Appointee candidate, within ten (10) business days, after Starboard’s submission of such Independent Appointee candidate. In the event the Nominating and Corporate Governance Committee does not accept an Independent Appointee candidate recommended by Starboard, Starboard shall have the right to recommend additional Independent Appointee candidate(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Independent Appointee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Independent Appointee to the Board no later than five (5) calendar days after the Nominating and Corporate Governance Committee’s recommendation of such Independent Appointee and shall take all necessary actions (including by increasing the size of the Board) to appoint such Independent Appointee to the Board; provided, however, that if the Founder Board does not elect such Independent Designee meets Appointee to the Eligibility RequirementsBoard pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until an Independent Appointee is elected to the Board. Any Independent Appointee designated pursuant to this Section 1(a)(ii) prior to the mailing of the Company’s definitive proxy statement for the 2016 Annual Meeting shall stand for election at the 2016 Annual Meeting together with the Company’s other nominees and the Starboard Appointee. If at any time Starboard’s Ownership decreases to less than the Minimum Ownership Threshold, the rights of Starboard pursuant to this Section 1(a)(ii) shall automatically terminate.
Appears in 1 contract
Board Appointments. (i) Promptly following execution of this Agreement, During the Parties agree to cooperate to identify a mutually acceptable independent director period (a the “Founder Independent DesigneeObserver Period”) who commencing on the date hereof and ending upon the Company’s 2017 Annual Meeting of Shareholders (the “2017 Annual Meeting”), Xxxx Xxxxxxxx shall be a Board observer (the “Observer”) and shall receive (A) is not copies of all documents distributed to the FounderBoard, including notice of all meetings of the Board, all written consents executed by the Board and all materials prepared for consideration at any meeting of the Board; and (B) has businesscopies of the minutes related to each meeting of the Board during the Observer Period . The Observer shall be permitted to attend and reasonably participate, restaurantbut not vote, marketingat all meetings of the Board during the Observer Period (whether such meetings are held in person, technologytelephonically or otherwise). Notwithstanding the foregoing, accountingthe Company reserves the right to exclude the Observer from access to any material or meeting or portion thereof if (i) the Board determines in good faith that such exclusion is reasonably necessary to preserve the attorney-client privilege, finance and/or or to protect highly confidential proprietary information of the Company, its affiliates or any third party or (ii) to enable the Board to in good faith discuss matters relating to this Agreement and the relationship between the Company and Bandera. Subject to Section 13 below, Bandera agrees that it shall cause the Observer to strictly preserve the confidentiality of Company business and information in the same means as if he were a director of the Company, including the discussion of any matters considered in meetings of the Board or Board committees whether or not the matters relate to material nonpublic information, unless previously publicly disclosed by the Company.
(ii) The Company agrees to nominate and include Xxxx Xxxxxxxx (the “Settlement Nominee” and, if elected, the “Settlement Director”) in the slate of directors to be elected at the 2017 Annual Meeting to serve as a director of the Company with a term expiring at the Company’s 2018 Annual Meeting of Shareholders (including any adjournment or postponement thereof, the “2018 Annual Meeting”).
(iii) The Board will recommend, and the Company will support and solicit proxies for, the election of the Settlement Nominee, at the 2017 Annual Meeting in the same manner as the Company’s other relevant experiences nominees to the Board included in the Company’s slate of directors for the 2017 Annual Meeting. The Company currently intends to hold the 2017 Annual Meeting on May 4, 2017 and, in any event, shall hold the 2017 Annual Meeting no later than May 14, 2017. The Board shall not appoint to the Board more than five directors in connection with the 2017 Annual Meeting, nor submit for election to the Board by shareholders more than five directors at the 2017 Annual Meeting.
(iv) If the Settlement Director (or expertise, any Bandera Replacement Director (Cas defined below)) is unable or unwilling to serve as a director, resigns as a director or is removed as a director prior to the expiration of the Standstill Period (as defined below), Bandera shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(iv) (any such replacement nominee shall be referred to as a “Bandera Replacement Director”); provided, however, that if the 2017 Annual Meeting holds an uncontested election for directors and the Settlement Director (or any Bandera Replacement Director) fails to receive a majority vote at the 2017 Annual Meeting and as a result, consistent with the Company's majority vote policy described by the Company's corporate governance guidelines, is requested to and does resign, then Bandera shall not have the ability to recommend a substitute person in accordance with this Section 1(a)(iv). Any Bandera Replacement Director must be either (i) Xxxxxxxxx Xxxxx or (ii) any other managing partner or managing director of Bandera who is reasonably acceptable to Founder the Board (such acceptance not to be unreasonably withheld), and the Board, each in its sole and absolute discretion, (D) qualifies must qualify as “independent” pursuant to The Nasdaq Stock MarketMarket listing standards. The Company’s Corporate Governance and Nominating Committee (the “NasdaqNominating Committee”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee such person meets the Eligibility Requirements promptly, and in any event foregoing criteria within ten five business days after (10A) business days, after such nominee has submitted to the Company the documentation reasonably required by the previous sentence. If Company (which shall be requested by the Company reasonably promptly after Bandera’s submission of such nominee) and (B) representatives of the Board determines that a proposed Founder Independent Designee have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iv) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Bandera’s submission of such nominee. In the event the Nominating Committee does not meet accept a person recommended by Bandera as the Eligibility RequirementsBandera Replacement Director, Bandera shall have the Parties agree right to thereafter cooperate to identify another proposed Founder Independent Designee recommend additional substitute person(s) meeting the conditions specified above, whose appointment shall be subject to meeting the Eligibility Requirements Nominating Committee recommending such person in accordance with the procedures described in this paragraph.
(ii) If above. Upon the recommendation of a Founder Independent Designee is recommended for appointment as a director of Bandera Replacement Director nominee by the Company and Nominating Committee, the Board determines shall vote on the appointment of such Bandera Replacement Director to the Board no later than ten (10) business days after the Nominating Committee recommendation of such Bandera Replacement Director; provided, however, that if the Board does not elect such Founder Independent Designee meets Bandera Replacement Director to the Eligibility Requirements on or prior Board pursuant to March 22, 2019this Section 1(a)(iv), the Company agrees that, Parties shall continue to follow the procedures of this Section 1(a)(iv) (subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (Aconditions specified herein) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election until a Bandera Replacement Director is elected to the Board at the 2019 Annual Meeting for Board. Upon a term expiring at the CompanyBandera Replacement Director’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to increase the size appoint such Bandera Replacement Director to any applicable committee of the Board by one of which the replaced director was a member and appoint the Founder Independent Designee immediately prior to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting such director’s resignation or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirementsremoval.
Appears in 1 contract
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to i. The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees and subcommittees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement and satisfaction of the conditions set forth herein, to increase (A) set the size of the Board by one member at seven (7) members and (B) nominate and appoint Xxxxx Xxxxx, Xxxxxx Xxxxx and Xxxxxxx Xxxxxxxxx (the Founder Independent Designee to fill "Agreed Appointees") as directors of the newly created directorship effective immediatelyCompany as follows: (A) Xxxxx Xxxxx and Xxxxxx Xxxxx, in each case as Class B directors with terms expiring at the Company's 2020 Annual Meeting of Shareholders and (B) Xxxxxxx Xxxxxxxxx (the "Class C Appointee"), as a Class C director with a term expiring at the Company's 2018 Annual Meeting of Shareholders (the "2018 Annual Meeting").
ii. The Company agrees that the Board shall nominate, along recommend, support and solicit proxies solely for (A) the Class C Appointee as a Class C director with its other nomineesa term expiring at the Company's 2021 Annual Meeting of Shareholders and (B) Xxxxxx X. Xxxxxxx as a Class C director, with a term expiring at the Founder Independent Designee Company's 2021 Annual Meeting of Shareholders (the "Continuing Director") for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 's 2018 Annual Meeting”). For the avoidance of doubt, and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting Class C Appointee (or Replacement Director, if applicable) in the same manner as it recommendsthe Continuing Director and shall only recommend, supports support and solicits solicit proxies for the election of the other nominees nominated by Class C Appointee (or Replacement Director, if applicable) and the Board for election as directorsContinuing Director. The Company shall hold the 2018 Annual Meeting no later than August 1, 2018 and its 2019 Annual Meeting of Shareholders no later than August 1, 2019.
iii. In the event any Agreed Appointee (iiior any Replacement Director) If a Founder Independent Designee is recommended for appointment unable or unwilling to serve as a director and ceases to be a director, resigns as a director or is removed as a director or ceases to be a director for any other reason (including as the result of a failure to receive the requisite number of votes at the applicable Annual Meeting of Shareholders of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees thatCompany), subject to the Founder Independent Designee’s continued satisfaction terms of this Section 1(a)(iii), with respect to such Agreed Appointee, RBM or its Designee (as defined below) shall have the ability to recommend a substitute Agreed Appointee in accordance with the process set forth in Section 1(a)(iv) below (a "Replacement Director"); provided, however, if at such time as RBM or its Designee would have the right to appoint a Replacement Director hereunder, the RBM Parties, in the aggregate, own less than the lesser of 1% of the Eligibility Requirementsthen outstanding Common Stock and 406,404 shares of Common Stock (subject to adjustments for stock splits, reclassifications, combinations and similar adjustments), RBM or its Designee shall not have the right to appoint such Replacement Director. Subject to NYSE rules and applicable law, upon a Replacement Director's appointment to the Board, the Board and all applicable committees and subcommittees of the Board shall take all necessary actions to increase the size appoint such Replacement Director to any applicable committee or subcommittee of the Board of which the replaced director was a member immediately prior to such director's resignation. Subject to NYSE rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee or subcommittee, one of the other Agreed Appointees (as designated by one RBM or its Designee) who meets the requirements for membership on such committee or subcommittee will serve as an interim member and appoint of such applicable committee or subcommittee. Any Replacement Director designated pursuant to this Section 1(a)(iii) to replace the Founder Independent Designee Class C Appointee or Replacement Director prior to fill the newly created directorship effective immediately following mailing of the later of Company's definitive proxy statement for the 2018 Annual Meeting, shall stand for election at the 2018 Annual Meeting together with the Company's other director nominee.
iv. The Replacement Director must be an individual that is either (A) the 2019 Annual Meeting a member, partner, employee or affiliate of RBM or (B) another individual, who in the determination case of either (A) or (B) qualifies as "independent" pursuant to New York Stock Exchange ("NYSE") listing standards (other than any standards that take into account ownership of any shares of the Company's Common Stock, $0.01 par value per share (the "Common Stock") or other securities of the Company) (together, the "Board Criteria"). The Nominating and Corporate Governance Committee of the Board that (the Founder Independent Designee "Nominating Committee") shall make its determination and recommendation which it shall undertake reasonably and in good faith and which shall be limited to only whether any candidate recommended as a Replacement Director meets the Eligibility Requirements.Board Criteria within five (5) business days following written receipt of such recommendation from RBM or its Designee; provided that any Replacement Director candidate who is a member, partner, employee or affiliate of RBM will be deemed to satisfy the Board Criteria and will be approved and appointed to the Board within (5) five business days of such designation from RBM or its Designee so long as such Replacement Director candidate qualifies as "independent" pursuant to NYSE listing standards (other than any standards that take into account ownership of any Common Stock or other securities of the Company) and submits all completed documentation required pursuant to Section 1(h)(v) reasonably satisfactorily to the Nominating Committee; provided, further, that RBM and the other RBM Parties agree that, at any time, only two of RBM's three Agreed Appointees (including, for the avoidance of doubt, any Replacement Director(s) then on the Board) may be citizens or residents of the United States under Rule 405 of the Securities Act of 1933, as amended, and Rule 3b-4(c) of the Exchange Act (as defined
Appears in 1 contract
Samples: Board Composition Agreement (Aegean Marine Petroleum Network Inc.)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement, to increase (A) accept the size resignations tendered by Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xx., Xxxxxx Xxxxxx, Xx., and Xxxxxx Xxxxx as directors of the Board by one member and appoint Company, who the Founder Independent Designee to fill Company hereby represents have submitted, or shall no later than the newly created directorship effective immediatelydate hereof submit, and nominate, along with its other nominees, the Founder Independent Designee for election letters of resignation to the Board at that will become effective immediately prior to the 2019 Annual Meeting for a term expiring at appointment of their respective successors to the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”)Board, and (B) nominate and appoint Xxxxxxx X. Xxxxx (the “Starboard Appointee”), Xxxxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxxx (the “Independent Appointees” and together with the Starboard Appointee and the Additional Independent Appointees (as defined below), the “Appointed Directors”) as directors of the Company.
(ii) Starboard shall also have the right, following the execution of this Agreement, to recommend two (2) additional independent directors (when appointed, the “Additional Independent Appointees”) for appointment to the Board. The Additional Independent Appointees must (A) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of any person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (B) qualify as “independent” pursuant to New York Stock Exchange (the “NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company, and (D) satisfy the publicly disclosed guidelines and policies with respect to service on the Board (in the case of each of (A) through (D), as reasonably determined by the Nominating & Governance Committee). The Nominating & Governance Committee shall make its determination and recommendation regarding whether any candidate recommended by Starboard as an Additional Independent Appointee meets the foregoing criteria within five (5) business days after (1) such Additional Independent Appointee candidate has submitted to the Company shall recommend, support the documentation required by Section 1(g)(v) and solicit proxies for the election (2) representatives of the Founder Board have conducted customary interview(s) of such Additional Independent Designee at the 2019 Annual Meeting Appointee candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in the same manner as it recommendsany case, supports and solicits proxies for the election assuming reasonable availability of the other nominees nominated applicable Additional Independent Appointee candidate, within ten (10) business days, after Starboard’s submission of such Additional Independent Appointee candidate. In the event the Nominating & Governance Committee does not accept an Additional Independent Appointee candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Independent Appointee candidate(s) whose appointment shall be subject to the Nominating & Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Independent Appointee by the Nominating & Governance Committee, the Board shall vote on the appointment of such Additional Independent Appointee to the Board no later than five (5) business days after the Nominating & Governance Committee’s recommendation of such Additional Independent Appointee and shall take all necessary actions to appoint such Additional Independent Appointee to the Board; provided, however, that if the Board does not appoint any candidate recommended by Starboard as an Additional Independent Appointee to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until two Additional Independent Appointees have been appointed to the Board. Effective upon the appointment of an Additional Independent Appointee(s) to the Board, such Additional Independent Appointee(s) will be considered an Independent Appointee for election as directorsall purposes of this Agreement.
(iii) If a Founder Independent Designee is recommended for appointment as a director Concurrently with the execution of this Agreement, Xxxxx Xxxxxxx shall execute and deliver to the Company an advance irrevocable resignation letter pursuant to which she shall resign from the Board and all applicable committees thereof effective immediately prior to effectiveness of the Company and appointment of the Board determines that second Additional Independent Appointee (such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019time, the Company agrees that, subject to “Resignation Date”). At the Founder Independent Designee’s continued satisfaction of the Eligibility RequirementsResignation Date, the Board and all applicable committees of the Board shall take all necessary actions to accept the resignation of Xxxxx Xxxxxxx from the Board and all applicable committees thereof.
(iv) The Company agrees that (i) the Board shall nominate the following individuals, and shall only nominate the following individuals, for election to the Board at the Company’s 2017 Annual General Meeting of Shareholders (the “2017 Annual General Meeting”) for terms expiring at the Company’s 2018 Annual General Meeting of Shareholders (the “2018 Annual General Meeting”) and subject to their consent to serve: Xxxxxx Xxxxx, Xxxx Xxxxx, Xxxx Xxxxxxxxxxx, Xxxxx X’Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxx Xxxxxxx, and if both Additional Independent Appointees have not yet been appointed to the Board, Xxxxx Xxxxxxx (collectively, the “Continuing Directors”), the Starboard Appointee (provided, that Starboard satisfies the Minimum Ownership Threshold (as defined below) at all times from the date of this Agreement until completion of the 2017 Annual General Meeting), each Independent Appointee and, if one or both of the Additional Independent Appointees have been appointed to the Board, then such Additional Independent Appointee(s), and (ii) the Company shall recommend, support and solicit proxies for the Starboard Appointee, each Independent Appointee, and, if applicable, the Additional Independent Appointee, at the 2017 Annual General Meeting in the same manner as it recommends, supports, and solicits proxies for the election of the Continuing Directors. The Company shall use its reasonable best efforts to hold the 2017 Annual General Meeting no later than May 20, 2017.
(v) If any Appointed Director (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director or is removed as a director prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns at least the lesser of 3% of the Company’s then outstanding Ordinary Shares and 4,301,342 Ordinary Shares (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such amount the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(iv) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Starboard Replacement Director”). Any Starboard Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to NYSE listing standards, (C) have the relevant financial and business experience to be a director of the Company, (D) satisfy the publicly disclosed guidelines and policies with respect to service on the Board and (E) in the case of a Starboard Replacement Director who is replacing an Independent Appointee (or any replacement thereof), be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard). Any Starboard Replacement Director who is replacing the Starboard Appointee (or any replacement thereof) and who is an employee of Starboard will be approved and appointed to the Board no later than (5) five business days following the submission of all completed documentation required by Section 1(g)(v) so long as such Starboard Replacement Director qualifies as “independent” pursuant to the NYSE listing standards and satisfies (D) in the preceding sentence. The Nominating & Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director (other than the Starboard Appointee, who is covered by the prior sentence) meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(g)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(v) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating & Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating & Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating & Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating & Governance Committee recommendation of such Starboard Replacement Director; provided, however, that if the Board does not appoint such Starboard Replacement Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until a Starboard Replacement Director is elected to the Board. Subject to NYSE rules applicable law, upon a Starboard Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation. Subject to NYSE rules and applicable law, until such time as any Starboard Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Subject to Section 1(a)(iv), any Starboard Replacement Director designated pursuant to this Section 1(a)(v) replacing an Appointed Director prior to the 2017 Annual General Meeting shall stand for election at the 2017 Annual General Meeting together with the Company’s other nominees.
(vi) During the period commencing with the date hereof through the expiration of the Standstill Period, the Board shall not seek shareholder approval to increase the size of the Board by one member and appoint to more than eleven (11) directors, unless Starboard consents in writing to any proposal to increase the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination size of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
Appears in 1 contract
Samples: Agreement (Starboard Value LP)
Board Appointments. (i) Promptly following The Company agrees that effective upon the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to appoint R. Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxxx (each a “Maran Independent Appointee” and collectively, the “Maran Independent Appointees”) and Xxxxxx X. Xxxxxx (the “Maran Appointee”) as directors of the Company with terms expiring at the Company’s 2021 Annual Meeting of Shareholders (the “2021 Annual Meeting”). The Company agrees that it shall nominate the Maran Appointee and the Maran Independent Appointees for election to the Board at the 2021 Annual Meeting for terms expiring at the Company’s 2022 Annual Meeting of Shareholders (the “2022 Annual Meeting”) and shall recommend, support and solicit proxies for the election of the Maran Appointee and the Maran Independent Appointees at the 2021 Annual Meeting in the same manner as it recommends, supports, and solicits proxies for the election of the Company’s other director nominees.
(ii) If the Maran Appointee (or any Maran Replacement Director (as defined below)) is unable or unwilling to serve as a director and ceases to be a director (whether by resignation, removal or refusal to stand for election) at any time prior to the expiration of the Standstill Period (as defined below), and at such time Maran beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least 7% of the Company’s then-outstanding Common Stock (the “Minimum Ownership Threshold”), Maran shall have the ability to recommend a person to be a Maran Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Maran Replacement Director”). Any Maran Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to The Nasdaq Stock Market (“Nasdaq”) listing standards, and (C) have the relevant financial and business experience to be a director of the Company. The Nominating and Corporate Governance Committee of the Board (the “Nominating and Corporate Governance Committee”) shall make its determination and recommendation regarding whether such Maran Replacement Director meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(c)(iii) and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Maran’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Maran as the Maran Replacement Director, Maran shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Maran Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Maran Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s recommendation of such Maran Replacement Director; provided, however, that if the Board does not appoint such Maran Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Maran Replacement Director is elected to the Board. Subject to applicable law and stock exchange rules, upon a Maran Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Maran Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to applicable law and stock exchange rules, until such time as any Maran Replacement Director is appointed to any applicable committee of the Board, one of the Maran Independent Appointees (as designated by Maran) will serve as an interim member of such applicable committee. Any Maran Replacement Director designated pursuant to this Section 1(a)(ii) replacing the Maran Appointee prior to the mailing of the Company’s definitive proxy statement for the 2021 Annual Meeting shall stand for election at the 2021 Annual Meeting together with the other director nominees.
(iii) If at any time Maran beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate less than the Minimum Ownership Threshold, the Maran Appointee, or any Maran Replacement Director appointed in lieu of the Maran Appointee in accordance with Section 1(a)(ii), shall promptly tender their resignation from the Board to the Board.
(iv) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the Board and all applicable committees of the Board shall not increase the size of the Board by one member and appoint to more than eight (8) directors provided, however, the Founder Independent Designee Board may be increased during this period (i) solely to fill accommodate the newly created directorship effective immediately following appointment of any new director to the later of (A) the 2019 Annual Meeting Board in accordance with Section 1(a)(ii), or (Bii) upon Maran’s prior written consent to increase the determination size of the Board.
(v) The Company agrees that the Board, including the Maran Appointee and the Maran Independent Appointees, will hold a meeting of the Board as soon as practicable following the execution of this Agreement. At this meeting, which in any event shall be held no later than February 21, 2021, the Board will review the Company’s shareholder rights agreement to determine whether it continues to be in the best interests of the Company and its shareholders.
(vi) The Maran Appointee and the Maran Independent Appointees will be entitled to the same director benefits as other members of the Board, including (a) compensation for service as a director and reimbursement of such director’s expenses on the same basis as all other non-employee directors of the Company; (b) equity-based compensation grants and other benefits, if any, on the same basis as all other non-employee directors of the Company; and (c) the same rights of indemnification and directors’ and officers’ liability insurance coverage as the other non-employee directors of the Company as such rights may exist from time to time. Furthermore, the Parties agree that the Founder Maran Appointee and the Maran Independent Designee meets Appointees, during their service as directors of the Eligibility RequirementsCompany, will not be prohibited from acting in their respective capacities as a director or from complying with their respective fiduciary duties as directors of the Company (including voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board, and making suggestions or raising any issues or recommendations to the Board).
Appears in 1 contract
Board Appointments. (i) The Company agrees that the Board and all applicable committees of the Board shall take all necessary actions, effective immediately following the execution of this Agreement, to (A) increase the size of the Board from six (6) to nine (9) directors and (B) appoint the following individuals to the Board: (1) subject to their satisfaction of the Independent Director Criteria (other than clause (d) thereof in respect of the Starboard Appointee) and submission of the documentation to the Company required by Section 1(c)(iv) (solely in respect of the Starboard Appointee), Xxxxxxx X. Xxxxx (the “Starboard Appointee”) and Xxxxxxx X. Xxxxxxxxxx (the “Independent Appointee” and together with the Starboard Appointee, the “Appointed Directors”) and (2) the Company’s Chief Executive Officer, Xxxxx X. Xxxxxxx.
(ii) Promptly following the execution of this Agreement, so long as a Resignation Event (as defined below) has not occurred, the Company agrees that the Board and all applicable committees of the Board shall take all necessary actions to appoint Xx. Xxxxx as Chairman of the Board.
(iii) The Company agrees that, so long as a Resignation Event has not occurred, promptly following the execution of this Agreement, the Parties agree Nominating Committee (as defined below) shall, subject to cooperate such persons agreeing to serve as directors of the Company, together through consultation with the Chairman of the Board and the Chairman of the Corporate Governance and Nominating Committee of the Board (the “Nominating Committee”), identify a mutually acceptable independent and select at least one (1) and no more than two (2) additional director candidates (a the “Founder Additional Independent DesigneeAppointees” and, together with the Appointed Directors, the “New Appointees”) ), who (Aa) is not the Founder, (B) has have business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (Cb) is are reasonably acceptable to Founder the Nominating Committee, the Board and Chairman of the Board, each in its sole and absolute discretion, (Dc) qualifies qualify as “independent” pursuant to The Nasdaq Stock Market’s Market listing standards, (d) are independent of Starboard (for the avoidance of doubt, the nomination by Starboard of a person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard, but any employee, director, partner or affiliate of Starboard (whether past or present) would not be deemed independent of Starboard) (“NasdaqIndependent of Starboard”) listing rules), (Ee) is independent have provided the items that would be required of Founder an Appointed Director pursuant to Section 1(c)(v) and Starboard, (Ff) does do not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(Ga)-(f), the “Eligibility RequirementsIndependent Director Criteria”), to recommend for appointment as a director directors of the Company. Founder acknowledges that Upon the Founder nomination of any Additional Independent Designee or proposed Founder Independent Designee may be required, if requested Appointees by the CompanyNominating Committee, to submit the Board shall promptly determine whether such nominee is reasonably acceptable to the Company a fully completed copy of the Company’s standard director Board, and officer questionnaire and other reasonable and customary director onboarding documentation required if such nomination is approved by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptlyBoard, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase promptly appoint the size Additional Independent Appointees as directors of the Company following the recommendation of the Nominating Committee.
(iv) The Company agrees that, so long as a Resignation Event has not occurred, subject to their continued satisfaction of the Independent Director Criteria (other than clause (d) thereof in respect of the Starboard Appointee (or a Replacement Director thereof)), (i) the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and shall nominate, along with its other nominees, the Founder Independent Designee following individuals for election to the Board at the Company’s 2019 Annual Meeting of Stockholders (the “2019 Annual Meeting”) for a term terms expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”): the Starboard Appointee (or any Replacement Director thereof) and the Independent Appointee (or any Replacement Director thereof), and, if one or both of the Additional Independent Appointees have been appointed to the Board, then such Additional Independent Appointee(s), and (Bii) the Company shall recommend, support and solicit proxies for the election of the Founder Starboard Appointee (or any Replacement Director thereof) and the Independent Designee Appointee (or any Replacement Director thereof), and, if applicable, each Additional Independent Appointee, at the 2019 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the other nominees nominated by the Board for election as directorsany continuing director.
(iiiv) If a Founder Independent Designee any Appointed Director (or any Replacement Director thereof) is recommended for appointment unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director, or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period, and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act (as defined below)) in the aggregate at least (i) 89,264 Series B Preferred Shares or (ii) the lesser of 5.0% of the Company’s then-outstanding Common Stock (on an as-converted basis, if applicable) and 1,783,141 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), so long as no Resignation Event has occurred, Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(v) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). Any Replacement Director must (A) satisfy the Independent Director Criteria (other than clause (d) thereof in respect of any Replacement Director of the Starboard Appointee (or a Replacement Director thereof)) and (B) submit the documentation to the Company required by Section 1(c)(iv) (solely in respect of any Replacement Director who is replacing the Starboard Appointee (or any Replacement Director thereof) and who is not Independent of Starboard). Any Replacement Director who is replacing the Starboard Appointee (or any Replacement Director thereof) and who is a partner or senior employee of Starboard that has relevant business and financial experience will be deemed reasonably acceptable to the Nominating Committee and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees thatand, subject to meeting the Founder other Independent Designee’s continued Director Criteria (other than clause (d) thereof) and submission of the documentation to the Company required by Section 1(c)(iv) will be approved and appointed to the Board in accordance with the process specified in this Section 1(a)(v) so long as no Resignation Event has occurred. The Nominating Committee shall make its determination and recommendation regarding whether a Replacement Director meets the applicable Independent Director Criteria within five (5) business days after the later of the date that (1) such nominee has submitted to the Company the documentation required by Sections 1(c)(iv) (solely in respect of any Replacement Director who is replacing the Starboard Appointee (or any Replacement Director thereof) and who is not Independent of Starboard) and Section 1(c)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee, as the Board may, in its sole discretion, determine is necessary. The Board shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(v) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days following the submission by such nominee of all completed documentation required by this Section 1(a)(v) and any additional documentation required by Sections 1(c)(iv) (if applicable) and (v). In the event the Nominating Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s), so long as no Resignation Event has occurred, whose appointment shall be subject to the Nominating Committee recommending such person in accordance with the procedures described above and satisfaction of the Eligibility RequirementsIndependent Director Criteria and submission of the relevant documentation. Upon the recommendation of a Replacement Director nominee by the Nominating Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating Committee’s recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until a Replacement Director is elected to the Board, so long as no Resignation Event has occurred. Subject to Section 1(a)(iv), any Replacement Director designated pursuant to this Section 1(a)(v) replacing an Appointed Director prior to the mailing of the Company’s definitive proxy statement for the 2019 Annual Meeting shall stand for election at such meeting together with the Company’s other nominees. Subject to Nasdaq Stock Market rules and applicable law, upon a Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation. Subject to Nasdaq Stock Market rules and applicable law and so long as a Resignation Event has not occurred, until such time as any Replacement Director is appointed to any applicable committee, the other Appointed Director (as designated by Starboard) will be provided the opportunity to serve as an interim member of such applicable committee.
(vi) During the period commencing with the date of this Agreement through the date of the 2019 Annual Meeting, so long as no Resignation Event has occurred, the Board and all applicable committees of the Board shall take all necessary actions so that the size of the Board is no more than eleven (11) directors, unless Starboard consents in writing to any proposal to increase the size of the Board by one member and appoint or stockholders of the Founder Independent Designee Company take such actions to fill increase the newly created directorship effective immediately following size of the later Board. During the period commencing with the conclusion of (A) the 2019 Annual Meeting or (B) through the determination expiration of the Standstill Period, so long as no Resignation Event has occurred, the Board and all applicable committees of the Board shall take all necessary actions so that the Founder Independent Designee meets size of the Eligibility RequirementsBoard is no more than twelve (12) directors, unless Starboard consents in writing to any proposal to increase the size of the Board or stockholders of the Company take such actions to increase the size of the Board.
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Samples: Governance Agreement (Papa Johns International Inc)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement, to increase (A) accept the size resignations tendered by Xxxx X. Xxxxxx, Xxxxx X. Xxxxx, and Xxxx Xxxx Xxxxxxxxx, as directors of the Company, who the Company hereby represents have submitted, or shall no later than the date hereof submit, letters of resignation to the Board by one member and appoint that will become effective upon the Founder Independent Designee to fill the newly created directorship effective immediatelyexecution of this Agreement, and nominate(B) appoint Xxxxx Xxxxx, along with its other nomineesXxxxx Xxxxxxx and Xxxxxx Xxxx (each a “New Director” and collectively, the Founder Independent Designee “New Directors”) as directors of the Company.
(ii) The Company agrees, provided that each New Director is able and willing to continue to serve on the Board, that it will nominate the New Directors for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 2025 Annual Meeting of Stockholders (the “2020 2025 Annual Meeting”), ) and (B) the Company shall will recommend, support and solicit proxies for the election of the Founder Independent Designee New Directors at the 2019 2025 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the Company’s other nominees nominated by director nominees. The Company shall use its reasonable best efforts to hold the Board for election as directors2025 Annual Meeting no later than June 20, 2025.
(iii) If any New Director (or any Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 3% of the Company’s then-outstanding Common Stock and 10,579,406 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(iii) (any such replacement nominee shall be referred to as a “Replacement Director” and if and when such person becomes a director of the Company in accordance with this Section 1(a)(iii), such person shall be deemed a New Director for purposes of this Agreement). Any Replacement Director must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board (the “Nominating and Governance Committee”) and the Board determines that (such Founder Independent Designee acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company, (D) satisfy the Company’s publicly disclosed guidelines and policies with respect to service on the Board, including, without limitation, the Company’s Corporate Governance Guidelines, and (E) unless otherwise consented to by the Board and the Nominating and Governance Committee, be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard, but any partner, officer or employee of Starboard would not be deemed independent of Starboard). The Nominating and Governance Committee shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether such nominee for a Replacement Director meets the Eligibility Requirements foregoing criteria, assuming reasonable availability of such candidate, within ten (10) business days after March 22, 2019, the date (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Governance Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating and Governance Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Governance Committee recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation, retirement or removal, or if the Board or the applicable committee of the Board determines that the Replacement Director does not satisfy the requirements of the NYSE rules and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith), to an alternative committee of the Board. Subject to NYSE rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, one of the other New Directors will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iii) replacing a New Director prior to the 2025 Annual Meeting shall stand for election at the 2025 Annual Meeting together with the other director nominees.
(iv) During the period commencing with the date of this Agreement through the expiration of the Standstill Period, the size of the Board will not exceed eleven (11) directors, provided, however, the Board may be increased during this period (A) solely to accommodate the appointment of the New CEO (as defined below) as a director of the Company as contemplated by Section 1(a)(v) or (B) upon Starboard’s prior written consent to increase the size of the Board.
(v) Immediately following the 2025 Annual Meeting, the Company and the Board by one member and shall take all necessary actions to appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination new Chief Executive Officer of the Board Company (the “New CEO”) as a director of the Company. Subject to NYSE rules and applicable law, during the period commencing on the date of appointment of the New CEO by the Company until the date that the Founder Independent Designee meets New CEO is appointed to the Eligibility RequirementsBoard, the New CEO will have the same rights as a director on the Board.
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Board Appointments. i. The Company agrees that in accordance with the Company’s Amended and Restated Certificate of Incorporation (ithe “Charter”) Promptly and Amended and Restated By-Laws (the “Bylaws”), Delaware law and this Agreement, no later than three (3) business days following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase (including by increasing the size of the Board by one member and Board) to appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election Appointees to the Board and apportion the Independent Appointees among the classes of directors such that the Independent Appointees and the five (5) directors serving on the Board immediately prior to the execution of this Agreement are apportioned among the classes of directors as set forth on Exhibit A.
ii. In addition to the Independent Appointees, during the Standstill Period (as defined below), Starboard shall have the right to recommend two additional directors for appointment to the Board as follows: (A) an individual who meets the criteria set forth in Section 1(a)(iv) (the “Additional Independent Appointee”) and (B) an individual that is either
(1) one (1) of Starboard’s partners or (2) another individual who meets the criteria set forth in Section 1(a)(iv) (the “Starboard Appointee”), provided that with respect to the appointment of the Starboard Appointee, such appointment right shall continue so long as Starboard’s Ownership is at least the lesser of 4.0% of the Company’s then outstanding Common Stock and 2,292,169 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”). If the Starboard Appointee is one of Starboard’s partners, then such Starboard partner will be approved and appointed to the Board no later than five (5) business days following the submission of all completed documentation required by Sections 1(i)(iv) and 1(i)(v) and so long as such Starboard partner qualifies as “independent” pursuant to Applicable Exchange Standards (as defined below). With respect to the appointment of any Starboard Appointee who is not a Starboard partner and the Additional Independent Appointee, the Parties shall follow the procedures set forth in Section 1(a)(v). For the avoidance of doubt, if the Additional Independent Appointee and/or the Starboard Appointee, as the case may be, are appointed to the Board prior to the mailing of the Company’s definitive proxy statement for the next annual meeting of stockholders of the Company (the “Next Annual Meeting”), the Starboard Appointee and/or the Additional Independent Appointee shall stand for election at the Next Annual Meeting along with the other Director Nominees (as defined below). Subject to any amendments to the Charter or Bylaws solely as they may relate to the terms of any directors, the Starboard Appointee shall serve as a Class II director with a term expiring at the Company’s 2021 annual meeting of stockholders and the Additional Independent Appointee shall serve as a Class III director with a term expiring at the Company’s 2019 annual meeting of stockholders (the “2019 Annual Meeting”).
iii. In addition to the Starboard Appointee, the Additional Independent Appointee and the Independent Appointees, during the Standstill Period, Starboard shall have the right to recommend one additional independent director to the Board who shall be appointed to the Board in accordance with the procedures set forth in Section 1(a)(v) (the “Conditional Independent Appointee” and, together with the Independent Appointees, the Starboard Appointee and the Additional Independent Appointee, the “Appointed Directors”) if and only if (A) Starboard’s Ownership meets the Minimum Ownership Threshold and (B) the Company has not filed with the Securities and Exchange Commission (the “SEC”) any or all of the audited financial statements for the Company’s fiscal years ended December 31, 2015, December 31, 2016 and December 31, 2017 (collectively, the “Audited Financial Statements”) on or prior to March 31, 2018 (the “Filing Deadline”); provided, however, that the Company shall have no obligation to appoint the Conditional Independent Appointee in accordance with the terms of this Agreement if the Audited Financial Statements are filed with the SEC no later than thirty (30) days after the Filing Deadline. For the avoidance of doubt, if the Conditional Independent Appointee is appointed prior to the mailing of the Company’s definitive proxy statement for the Next Annual Meeting, the Conditional Independent Appointee shall stand for election at the Next Annual Meeting for along with the other Director Nominees. Subject to any amendments to the Charter or Bylaws solely as they may relate to the terms of any directors, the Conditional Independent Appointee shall serve as a Class I director with a term expiring at the Company’s 2020 Annual Meeting annual meeting of Stockholders stockholders.
iv. Any Starboard Appointee who is not a partner of Starboard, any Additional Independent Appointee and any Conditional Independent Appointee (each an “Additional Independent Director”) must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (C) qualify as “independent” pursuant to Nasdaq Stock Market listing standards (or applicable requirements of such other national securities exchange designated as the primary market on which the Company’s Common Stock is listed for trading (the “2020 Annual MeetingApplicable Exchange Standards”)), (D) have the relevant financial and business experience to be a director of the Company, and (E) meet the Company’s publicly disclosed guidelines and policies with respect to service on the Board (the “Corporate Governance Guidelines and Policies”) as in effect as of the date of this Agreement (clauses (C) through (E), the “Director Criteria”).
v. The Company’s Nominating and Governance Committee (the “Nominating and Governance Committee”) shall make its determination and recommendation regarding whether an Additional Independent Director meets the criteria set forth in clauses (A) through (E) in Section 1(a)(iv) within five (5) business days after (A) such Additional Independent Director candidate has submitted to the Company the documentation required by Section 1(i)(v) and (B) representatives of the Board have conducted customary interview(s) of such Additional Independent Director candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(v) as promptly as practicable, but in any case, assuming reasonable availability of the applicable Additional Independent Director candidate, within ten (10) business days, after Starboard’s submission of such Additional Independent Director candidate. In the event the Nominating and Governance Committee does not accept an Additional Independent Director candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Independent Director candidate(s) whose appointment shall be subject to the Nominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Independent Director by the Nominating and Governance Committee, the Board shall vote on the appointment of such Additional Independent Director to the Board no later than five (5) calendar days after the Nominating and Governance Committee’s recommendation of such Additional Independent Director and shall take all necessary actions (including by increasing the size of the Board) to appoint such Additional Independent Director to the Board; provided, however, that if the Board does not elect such Additional Independent Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until an Additional Independent Director is elected to the Board.
vi. At the Next Annual Meeting and at any other annual meeting of stockholders of the Company held during the Standstill Period, the Board will nominate and recommend, and the Company will support and solicit proxies only for the following directors: (A) the Independent Appointees; (B) the Starboard Appointee (if appointed as of such time); (C) the Additional Independent Appointee (if appointed as of such time); (D) the Conditional Independent Appointee (if appointed as of such time); (E) five (5) additional directors recommended by the Nominating and Governance Committee (such five (5) additional directors, the “Additional Directors”); and (F) any other director that may be appointed pursuant to Section 1(a)(viii) (the directors referred to in clauses (A) through (F), collectively and to the extent appointed as of such time, the “Director Nominees”). For the avoidance of doubt, the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at Appointees, the 2019 Annual Meeting Starboard Appointee (if appointed as of such time), the Additional Independent Appointee (if appointed as of such time) and the Conditional Independent Appointee (if appointed as of such time) in the same manner as it recommends, supports and solicits proxies for the election Additional Directors at the Next Annual Meeting and at any other annual meeting of stockholders of the other nominees nominated by Company held during the Board for election as directorsStandstill Period.
vii. If any Appointed Director (iiior any Starboard Replacement Director (as defined below)) If is unable or unwilling to serve as a Founder Independent Designee is recommended for appointment director, resigns as a director or is removed as a director prior to the expiration of the Company Standstill Period, and at such time Starboard’s Ownership is at least the lesser of 3.0% of the Company’s then outstanding Common Stock and 1,719,127 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(vii) (any such replacement nominee shall be referred to as a “Starboard Replacement Director”). For the avoidance of doubt, any Starboard Replacement Director replacing the Starboard Appointee (irrespective of whether such Starboard Appointee is a Starboard partner) can be either (A) a Starboard partner or (B) another individual who meets the criteria set forth in this Section 1(a)(vii). Any Starboard Replacement Director must satisfy the Director Criteria and, in the case of any Starboard Replacement Director who is not a Starboard partner, must be (A) reasonably acceptable to the Board determines that (such Founder Independent Designee acceptance not to be unreasonably withheld) and (B) independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard). Any Starboard Replacement Director who is replacing the Starboard Appointee and who is a partner of Starboard will be approved and appointed to the Board no later than five (5) business days following the submission of all completed documentation required by Sections 1(i)(iv) and 1(i)(v) so long as such Starboard Replacement Director qualifies as “independent” pursuant to the Applicable Exchange Standards. The Nominating and Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director (other than any Starboard Replacement Director who is a Starboard partner, who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(i)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(vii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating and Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating and Governance Committee recommendation of such Starboard Replacement Director; provided, however, that if the Board does not elect such Starboard Replacement Director to the Board pursuant to this Section 1(a)(vii), the Parties shall continue to follow the procedures of this Section 1(a)(vii) until a Starboard Replacement Director is elected to the Board. Upon a Starboard Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to increase appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Until such time as any Starboard Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Any Starboard Replacement Director designated pursuant to this Section 1(a)(vii) that is replacing an Appointed Director prior to the mailing of the Company’s definitive proxy statement for the Next Annual Meeting shall stand for election at the Next Annual Meeting together with the other Director Nominees.
viii. During the period commencing with the date hereof through the expiration or termination of the Standstill Period, the Board and all applicable committees of the Board shall take all necessary actions (including with respect to nominations for election at the Next Annual Meeting or at any other annual meeting of stockholders of the Company held during the Standstill Period) so that the size of the Board by one member and appoint is no more than eight (8) directors; provided, however, the Founder Independent Designee Board may be increased during this period solely to fill the newly created directorship effective immediately following the later of accommodate (A) the 2019 Annual Meeting or Starboard Appointee, (B) the determination Additional Independent Appointee, (C) the Conditional Independent Appointee and (D) one (1) additional director designated by a non-Starboard investor as a condition of the Board that the Founder Independent Designee meets the Eligibility Requirementsany Offering (as defined below).
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Board Appointments. a. The Company agrees that the Nominating and Governance Committee (ior a duly constituted subcommittee thereof) Promptly following execution of this Agreement, (the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent DesigneeNominating Committee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of Directors of the Company (subject the “Board”) shall recommend for appointment and the Board agrees to any phase-in periods generally applicable to new directors, such as stock ownership requirements) appoint the three individuals identified on Exhibit A (clauses (A)-(G)collectively, the “Eligibility RequirementsDesignees”), in accordance with this Section 1, each such individual to recommend for appointment serve as a director of the CompanyBoard in accordance with this Section 1, unless such individual is or subsequently becomes (or would trigger the Company becoming) a “bad actor” within the meaning of Rule 506 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”), or is subject to an event or occurrence described in Item 401(f) of Regulation S-K under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) or has otherwise committed, been indicted or charged with, or made a plea of nolo contendere to a felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud. Founder acknowledges that For the Founder Independent Designee or proposed Founder Independent Designee may avoidance of doubt, other than the Designees, the nomination of any other individual for election to the Board remains at the sole discretion of the Board and the Nominating Committee.
b. Each of the Designees shall initially be required, if requested recommended by the CompanyNominating Committee and appointed by the Board to fill three vacancies on the Board effective no later than March 21, to submit to 2023 and shall be nominated by the Company a fully completed copy Board for election at the 2023 Annual Meeting of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by stockholders (the Company in connection with the appointment or election of new Board members generally“2023 Annual Meeting”). The Board vacancies the Designees will be appointed to fill shall make its determination and recommendation regarding whether a Founder Independent Designee meets be created by either (x) the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If departure of an incumbent member of the Board determines that a proposed Founder Independent Designee does not meet (who shall be one of the Eligibility Requirementsincumbent directors identified on Exhibit A (collectively, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
“Incumbent Directors”)) or (iiy) If a Founder Independent Designee is recommended for appointment as a director of the Company and expanding the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior size to March 22, 2019, the Company agrees thatup to 11 directors, subject to the Founder Independent Designeeterms of Section 1(f) below. The Designees shall provide consent to be nominated and shall be nominated by the Board for election to the Board, subject to compliance with the Company’s continued satisfaction customary requirements for all directors. At the 2023 Annual Meeting and at each annual or special meeting of the Eligibility RequirementsCompany’s stockholders until the Expiration Date, the Company shall: (i) nominate the Designees for election to the Board, (Aii) the Board and all applicable committees recommend that stockholders vote in favor of the Board shall take all necessary actions to increase the size election of the Board by one member each such Designee and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent (iii) support each such Designee for election to the Board at in a manner no less favorable than how the 2019 Annual Meeting Company supports other Board-nominated nominees for election to the Board. For the avoidance of doubt, if this Letter Agreement has terminated pursuant to Section 4(a), the Board’s obligations pursuant to this Section 1(b) shall also terminate.
c. As a term expiring at condition to the appointment of the Designees to the Board, the Stockholders acknowledge that the Designees will be required to provide such information the Company reasonably requires from all directors and nominees to the Board, including information required to be disclosed in a proxy statement or other filing under applicable law, stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and will consent to appropriate background checks. If, and subject to the terms of Section 1(h), following the completion of the Company’s 2020 review process, the Board learns that a Designee is (or has or would trigger the Company becoming) a “bad actor” within the meaning of Rule 506 of Regulation D under the Securities Act, is subject to an event or occurrence described in Item 401(f) of Regulation S-K under the Exchange Act or has otherwise committed, been indicted or charged with, or made a plea of nolo contendere to a felony or a misdemeanor involving moral turpitude, deceit, dishonesty or fraud, then, consistent with its treatment of all other directors on the Board, the Board may request that such Designee submit his or her resignation.
d. The Stockholders acknowledge that any Designee that serves as a director will agree to be bound by the Company’s ixxxxxx xxxxxxx policy and other applicable corporate governance policies governing the obligations of directors and executive officers of the Company, and that at all times while serving as a member of the Board, the Designees shall comply with all policies, procedures, processes, codes, rules, standards and legally permissible guidelines applicable to all of the Company’s directors. In addition, as a condition to being appointed to the Board, each Designee will execute an agreement whereby such Designee will automatically (and without the need for further action) resign from the Board as set forth in Section 1(c) or Section 4(a).
e. In the event the appointment of any Designee to the Board or a committee of the Board would cause any violation of the applicable listing rules of The Nasdaq Stock Market LLC (“Nasdaq”), the terms upon which such Designee shall be appointed to the Board or a committee of the Board shall be amended by the parties solely as necessary to ensure compliance with such listing rules and the parties shall work in good faith to document and approve such necessary modification(s).
f. The Company agrees that the size of the Board shall be set at eight directors no later than the date of the 2023 Annual Meeting of Stockholders (the “2020 Annual MeetingIncumbent Director Resignation Date”). In the event there are more than eight directors serving on the Board as of the Incumbent Director Resignation Date, one or all of the Incumbent Directors, as applicable, shall submit his resignation to be effective no later than the Incumbent Director Resignation Date. Notwithstanding the foregoing, in the event the resignation of any Incumbent Director as of the Incumbent Director Resignation Date would cause any violation of the applicable listing rules of Nasdaq, the parties agree that such resignation shall not be effective until such time as would ensure compliance with such listing rules and the parties shall work in good faith to document and approve such necessary modification(s) to the Incumbent Director Resignation Date.
g. Subject to the appointments and elections described under this Letter Agreement, the rules of any stock exchange on which the Company is traded and applicable law, the Designees (and any Replacement Designee) shall be eligible for membership on all current committees, other than the Chemistry, Manufacturing & Controls Committee (“CMC Committee”), and any new committee(s) of the Board formed after the date of this Letter Agreement. The Board will consider each of the Designees for appointment on any and all committees of the Board in a manner similar to other Board-nominated nominees for election to the Board. Upon their appointment or election to the Board, as applicable, until the expiration of the Expiration Date at least one (B1) of the Designees shall be appointed to each of the Board’s current committees, other than the CMC Committee, as well as any new committee(s) formed prior to the Expiration Date.
h. If, at any time prior to the Expiration Date, any Designee (or any Replacement Designee) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director or is removed as a director, or for any other reason fails to serve or is not serving as a director, the Company and Dialectic shall recommend, support and solicit proxies work in good faith to promptly mutually agree upon a replacement candidate for appointment to the election of the Founder Independent Designee at the 2019 Annual Meeting Board in substantially the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and Dialectic agreed upon the Board determines that selection of such Founder Independent Designee meets (any such replacement nominee, when appointed to the Eligibility Requirements after March 22Board, 2019shall be referred to as a “Replacement Designee”), and once agreed upon by the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirementsand Dialectic, the Board and all applicable committees of the Board shall take all necessary actions to increase promptly appoint the size Replacement Designee to the Board, subject to the review and conditions of this Section 1. Subject to the rules of any stock exchange on which the Company is traded and applicable law, upon a Replacement Designee’s appointment to the Board, the Board and all applicable committees of the Board by one member and shall take all necessary actions to appoint the Founder Independent such Replacement Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination an applicable committee of the Board and reconstitute committees of the Board, if needed, such that at least one member of each committee of the Founder Independent Board, other than the CMC Committee, is a Designee meets the Eligibility Requirementsor Replacement Designee.
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Samples: Board Appointment Agreement (Achieve Life Sciences, Inc.)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement, to (A) increase the size of the Board by one member and appoint the Founder Independent Designee from six (6) to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders seven (the “2020 Annual Meeting”), 7) members and (B) appoint Xxxxxxxx Xxxxx (the “Initial Starboard Appointee” and together with the Additional Appointees (as defined below), the “Appointed Directors”) as a director of the Company.
(ii) Starboard shall also have the right, following the execution of this Agreement, to recommend two (2) additional directors (when appointed, the “Additional Appointees”) for appointment to the Board, either of whom may be: (i) a partner or senior employee of Starboard (the “Additional Starboard Appointee” or the “Additional Starboard Appointees”, as applicable, and together with the Initial Starboard Appointee, the “Starboard Appointees”) and/or (ii) another individual, in each case, who meets the criteria set forth in this Section 1(a)(ii). Any Additional Appointee must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board (the “Nominating and Corporate Governance Committee”) and the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to Nasdaq Stock Market listing standards, and (C) have the relevant financial and business experience to be a director of the Company (in the case of each of (B) and (C), as reasonably determined by the Nominating and Corporate Governance Committee). The Nominating and Corporate Governance Committee shall recommend, support make its determination and solicit proxies for recommendation regarding whether any candidate recommended by Starboard as an Additional Appointee meets the election foregoing criteria within five (5) business days after (1) such Additional Appointee candidate has submitted to the Company the documentation required by Section 1(c)(v) and (2) representatives of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommendsBoard have conducted customary interview(s) of such Additional Appointee candidate, supports and solicits proxies for the election of the other nominees nominated if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in any case, assuming reasonable availability of the applicable Additional Appointee candidate, within ten (10) business days, after Starboard’s submission of such Additional Appointee candidate. Notwithstanding the foregoing, any candidate recommended by Starboard as an Additional Starboard Appointee will be deemed reasonably acceptable to the Nominating and Corporate Governance Committee and the Board and will be approved and appointed to the Board no later than five (5) business days following the submission of the documentation to the Company required by Section 1(c)(iv) and Section 1(c)(v), so long as such Additional Starboard Appointee qualifies as “independent” pursuant to the Nasdaq Stock Market listing standards. Without limiting the rights of Starboard in accordance with the proviso to the previous sentence, in the event the Nominating and Corporate Governance Committee does not accept an Additional Appointee candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Appointee candidate(s) whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Appointee by the Nominating and Corporate Governance Committee, the Board shall promptly determine whether such nominee is reasonably acceptable to the Board, and if such nominee is reasonably acceptable to the Board, shall vote on the appointment of such Additional Appointee to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee’s recommendation of such Additional Appointee and shall take all necessary actions (including by increasing the size of the Board) to appoint such Additional Appointee to the Board; provided, however, that if the Board does not appoint any candidate recommended by Starboard as an Additional Appointee to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until two Additional Appointees have been appointed to the Board. Effective upon the appointment of an Additional Appointee to the Board, such Additional Appointee will be considered an Appointed Director for election as directorsall purposes of this Agreement.
(iii) If any Appointed Director (or any Replacement Director (as defined below)) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director, is recommended removed as a director, or for appointment any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Governance Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act (as defined below)) in the aggregate at least the lesser of 4.0% of the Company’s then-outstanding Common Stock (on an as-converted basis, as applicable) and 2,013,732 shares of Common Stock (on an as-converted basis, as applicable) (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(iii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). For the avoidance of doubt, any Replacement Director replacing any Appointed Director (irrespective of whether such Appointed Director is a Starboard Appointee) can be either (A) a Starboard partner or senior employee or (B) another individual, in each case who meets the criteria set forth in this Section 1(a)(iii). Any Replacement Director must (A) be reasonably acceptable to the Nominating and Corporate Governance Committee of the Board and the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to Nasdaq Stock Market listing standards, and (C) have the relevant financial and business experience to be a director of the Company (in the case of each of (B) and (C), as reasonably determined by the Nominating and Corporate Governance Committee). Any Replacement Director who is replacing an Appointed Director and who is a partner or senior employee of Starboard will be deemed reasonably acceptable to the Nominating and Corporate Governance Committee and the Board determines that and will be approved and appointed to the Board no later than five (5) business days following the submission of the documentation to the Company required by Section 1(c)(iv) and Section 1(c)(v), so long as such Founder Independent Designee Replacement Director qualifies as “independent” pursuant to the Nasdaq Stock Market listing standards. The Nominating and Corporate Governance Committee shall make its determination and recommendation regarding whether such Replacement Director (other than any Starboard partner or senior employee who is covered by the prior sentence) meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe documentation required by Section 1(c)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee, if such interviews are requested by the Board or the Nominating and Corporate Governance Committee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by Starboard as the Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating and Corporate Governance Committee, the Board shall promptly determine whether such nominee is reasonably acceptable to the Board, and if such nominee is reasonably acceptable to the Board, shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating and Corporate Governance Committee recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Director is elected to the Board. Subject to Nasdaq Stock Market rules and applicable law, upon a Replacement Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to Nasdaq Stock Market rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee, the other Appointed Director (as designated by Starboard) will be provided the opportunity to serve as an interim member of such applicable committee.
(iv) During the period commencing with the date hereof through the expiration of the Governance Period, the Board and all applicable committees of the Board shall take all necessary actions (including with respect to nominations for election at any annual meeting of stockholders of the Company held during the Governance Period) so that the size of the Board is no more than seven (7) directors; provided, however, the Board may be increased during this period (i) solely to accommodate the appointment of the Additional Appointees, (ii) upon Starboard’s written consent to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (Biii) the determination if stockholders of the Board that Company take such actions to increase the Founder Independent Designee meets size of the Eligibility RequirementsBoard.
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Board Appointments. (ia) Promptly following execution the Closing Date, but in no event more than 30 days thereafter, PECM and GSO shall be entitled to (a) appoint one director (the “Lender Director”) to the board of this Agreementdirectors of Holdings (“Board”) and (b) designate one observer (the “Lender Observer”; together with the Lender Director, the Parties agree “Lender Appointees”) to cooperate to identify a mutually acceptable independent director attend all meetings (each a “Founder Independent DesigneeMeeting”) who of the board of directors of Holdings and any of its Subsidiaries (A) is or any relevant committees thereof). The Loan Parties shall execute any and all documents, agreements and instruments, and take all actions as may be needed to cause such appointments to be consummated promptly following the Closing Date. The Loan Parties shall not permit any business of the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or Loan Parties to be conducted at any Meeting other relevant experiences or expertise, (C) is acceptable to Founder and than a Meeting held by the Board.
(b) Such rights of appointment and designation shall terminate as to any such Person if it, each in together with its sole Affiliates and absolute discretionApproved Funds and any accounts and clients that invest in, or are managed, advised or sub-advised by, such Person, holds less than 30% of the principal amount of the Term Loan held by it, its affiliates and accounts and clients that are managed, advised or sub-advised by it on the Closing Date (Dthe “Threshold Percentage”). At such time that either such Person ceases to own at least the Threshold Percentage applicable to it, such Person shall no longer have the right to appoint or designate any Lender Appointee; provided that, assuming that the other Person maintains at least the Threshold Percentage, such remaining Person may appoint or designate one Lender Appointee, which, at its option may be either a Lender Director or a Lender Observer.
(c) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not Lender Director shall have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies same voting rights with respect to service on matters before the Board that are generally applicable as the other directors. The Lender Appointees shall be timely notified of the time and place of any Meetings and will be given written notice of all proposed actions to be taken by the Board (or any relevant committees thereof). The Lender Appointees shall have the right to receive all information provided to the other members of the board of directors of Holdings and any of its Subsidiaries (or any relevant committees thereof), in addition to copies of the Company (records of the proceedings or minutes of such meeting, when provided to such other members, in each case subject to any phasecustomary restrictions to be agreed. The Borrower shall reimburse the Lender Appointees for all reasonable out-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director of-pocket costs and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company expenses incurred in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and their participation in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraphMeeting.
(iid) If a Founder Independent Designee is recommended for appointment as a director of Commencing no later than September 30, 2014 and at all times thereafter, the Company and Loan Parties shall also cause the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) include an independent director selected by the Board and all applicable committees of reasonably acceptable to the Lead Lenders (or, if no Lead Lender, the Required Lenders). Such independent director shall have the same voting rights with respect to matters before the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated directors and may be removed by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director only with the consent of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019Lead Lenders (or if no Lead Lender, the Company agrees thatRequired Lenders), subject such consent not to the Founder Independent Designee’s continued satisfaction be unreasonably withheld of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility Requirementsdelayed.
Appears in 1 contract
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) that the Board and all applicable committees of the Board shall take all necessary actions actions, effective immediately following the execution of this Agreement, to increase (A) accept the size resignations tendered by Mxxxxxx X. Xxxxxxxxx, Gxxxxx X. Xxxxxx, Xx., Hxxxxx Xxxxxx, Xx., and Sxxxxx Xxxxx as directors of the Board by one member and appoint Company, who the Founder Independent Designee to fill Company hereby represents have submitted, or shall no later than the newly created directorship effective immediatelydate hereof submit, and nominate, along with its other nominees, the Founder Independent Designee for election letters of resignation to the Board at that will become effective immediately prior to the 2019 Annual Meeting for a term expiring at appointment of their respective successors to the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”)Board, and (B) nominate and appoint Jxxxxxx X. Xxxxx (the "Starboard Appointee"), Bxxxxxx X. Xxxxxx and Jxxxxxx X. Xxxxxxx (the "Independent Appointees" and together with the Starboard Appointee and the Additional Independent Appointees (as defined below), the "Appointed Directors") as directors of the Company.
(ii) Starboard shall also have the right, following the execution of this Agreement, to recommend two (2) additional independent directors (when appointed, the "Additional Independent Appointees") for appointment to the Board. The Additional Independent Appointees must (A) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of any person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (B) qualify as "independent" pursuant to New York Stock Exchange (the "NYSE") listing standards, (C) have the relevant financial and business experience to be a director of the Company, and (D) satisfy the publicly disclosed guidelines and policies with respect to service on the Board (in the case of each of (A) through (D), as reasonably determined by the Nominating & Governance Committee). The Nominating & Governance Committee shall make its determination and recommendation regarding whether any candidate recommended by Starboard as an Additional Independent Appointee meets the foregoing criteria within five (5) business days after (1) such Additional Independent Appointee candidate has submitted to the Company shall recommend, support the documentation required by Section 1(g)(v) and solicit proxies for the election (2) representatives of the Founder Board have conducted customary interview(s) of such Additional Independent Designee at the 2019 Annual Meeting Appointee candidate. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable, but in the same manner as it recommendsany case, supports and solicits proxies for the election assuming reasonable availability of the other nominees nominated applicable Additional Independent Appointee candidate, within ten (10) business days, after Starboard's submission of such Additional Independent Appointee candidate. In the event the Nominating & Governance Committee does not accept an Additional Independent Appointee candidate recommended by Starboard, Starboard shall have the right to recommend further Additional Independent Appointee candidate(s) whose appointment shall be subject to the Nominating & Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of an Additional Independent Appointee by the Nominating & Governance Committee, the Board shall vote on the appointment of such Additional Independent Appointee to the Board no later than five (5) business days after the Nominating & Governance Committee's recommendation of such Additional Independent Appointee and shall take all necessary actions to appoint such Additional Independent Appointee to the Board; provided, however, that if the Board does not appoint any candidate recommended by Starboard as an Additional Independent Appointee to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until two Additional Independent Appointees have been appointed to the Board. Effective upon the appointment of an Additional Independent Appointee(s) to the Board, such Additional Independent Appointee(s) will be considered an Independent Appointee for election as directorsall purposes of this Agreement.
(iii) If a Founder Independent Designee is recommended for appointment as a director Concurrently with the execution of this Agreement, Exxxx Xxxxxxx shall execute and deliver to the Company an advance irrevocable resignation letter pursuant to which she shall resign from the Board and all applicable committees thereof effective immediately prior to effectiveness of the Company and appointment of the Board determines that second Additional Independent Appointee (such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019time, the Company agrees that, subject to "Resignation Date"). At the Founder Independent Designee’s continued satisfaction of the Eligibility RequirementsResignation Date, the Board and all applicable committees of the Board shall take all necessary actions to accept the resignation of Exxxx Xxxxxxx from the Board and all applicable committees thereof.
(iv) The Company agrees that (i) the Board shall nominate the following individuals, and shall only nominate the following individuals, for election to the Board at the Company's 2017 Annual General Meeting of Shareholders (the "2017 Annual General Meeting") for terms expiring at the Company's 2018 Annual General Meeting of Shareholders (the "2018 Annual General Meeting") and subject to their consent to serve: Lxxxxx Xxxxx, Gxxx Xxxxx, Jxxx Xxxxxxxxxxx, Dxxxx X'Xxxxxx, Gxxxxxxx Xxxxxx, Txxxxxxx Xxxxxxx, and if both Additional Independent Appointees have not yet been appointed to the Board, Exxxx Xxxxxxx (collectively, the "Continuing Directors"), the Starboard Appointee (provided, that Starboard satisfies the Minimum Ownership Threshold (as defined below) at all times from the date of this Agreement until completion of the 2017 Annual General Meeting), each Independent Appointee and, if one or both of the Additional Independent Appointees have been appointed to the Board, then such Additional Independent Appointee(s), and (ii) the Company shall recommend, support and solicit proxies for the Starboard Appointee, each Independent Appointee, and, if applicable, the Additional Independent Appointee, at the 2017 Annual General Meeting in the same manner as it recommends, supports, and solicits proxies for the election of the Continuing Directors. The Company shall use its reasonable best efforts to hold the 2017 Annual General Meeting no later than May 20, 2017.
(v) If any Appointed Director (or any Starboard Replacement Director (as defined below)) is unable or unwilling to serve as a director and ceases to be a director, resigns as a director or is removed as a director prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns at least the lesser of 3% of the Company's then outstanding Ordinary Shares and 4,301,342 Ordinary Shares (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (such amount the "Minimum Ownership Threshold"), Starboard shall have the ability to recommend a substitute person(s) in accordance with this Section 1(a)(iv) (any such replacement nominee, when appointed to the Boad, shall be referred to as a "Starboard Replacement Director"). Any Starboard Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as "independent" pursuant to NYSE listing standards, (C) have the relevant financial and business experience to be a director of the Company, (D) satisfy the publicly disclosed guidelines and policies with respect to service on the Board and (E) in the case of a Starboard Replacement Director who is replacing an Independent Appointee (or any replacement thereof), be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not (in and of itself) cause such person to not be deemed independent of Starboard). Any Starboard Replacement Director who is replacing the Starboard Appointee (or any replacement thereof) and who is an employee of Starboard will be approved and appointed to the Board no later than (5) five business days following the submission of all completed documentation required by Section 1(g)(v) so long as such Starboard Replacement Director qualifies as "independent" pursuant to the NYSE listing standards and satisfies (D) in the preceding sentence. The Nominating & Governance Committee shall make its determination and recommendation regarding whether such Starboard Replacement Director (other than the Starboard Appointee, who is covered by the prior sentence) meets the foregoing criteria within five (5) business days after (1) such nominee has submitted to the Company the documentation required by Section 1(g)(v) and (2) representatives of the Board have conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(v) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard's submission of such nominee. In the event the Nominating & Governance Committee does not accept a person recommended by Starboard as the Starboard Replacement Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Nominating & Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Starboard Replacement Director nominee by the Nominating & Governance Committee, the Board shall vote on the appointment of such Starboard Replacement Director to the Board no later than five (5) business days after the Nominating & Governance Committee recommendation of such Starboard Replacement Director; provided, however, that if the Board does not appoint such Starboard Replacement Director to the Board pursuant to this Section 1(a)(v), the Parties shall continue to follow the procedures of this Section 1(a)(v) until a Starboard Replacement Director is elected to the Board. Subject to NYSE rules applicable law, upon a Starboard Replacement Director's appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Starboard Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director's resignation. Subject to NYSE rules and applicable law, until such time as any Starboard Replacement Director is appointed to any applicable committee, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Subject to Section 1(a)(iv), any Starboard Replacement Director designated pursuant to this Section 1(a)(v) replacing an Appointed Director prior to the 2017 Annual General Meeting shall stand for election at the 2017 Annual General Meeting together with the Company's other nominees.
(vi) During the period commencing with the date hereof through the expiration of the Standstill Period, the Board shall not seek shareholder approval to increase the size of the Board by one member and appoint to more than eleven (11) directors, unless Starboard consents in writing to any proposal to increase the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination size of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
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Samples: Agreement (PERRIGO Co PLC)
Board Appointments. (i) Promptly following execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest In accordance with the Company, ’s Third Amended and Restated Certificate of Incorporation (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G“Charter”), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director Fifth Amended and officer questionnaire Restated By-Laws (the “By-Laws”) and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019applicable law, the Company agrees that, subject to immediately following the Founder Independent Designee’s continued satisfaction execution of the Eligibility Requirementsthis Agreement, (A) the Board and all applicable committees of the Board shall take all necessary actions to (A) increase the size of the Board by one member three (3) directors to a total of thirteen (13) directors and (B) appoint the Founder Independent Designee to fill the newly created directorship effective immediatelyRxxx Xxxxx, Axxxx (Axxx) Axxxx and nominate, along with its other nomineesJxxxx (Jxx) Gxxxx (each a “New Director” and collectively, the Founder Independent Designee for election to “New Directors”) as members of the Board at the 2019 Annual Meeting for Board, each with a term expiring at the Company’s 2020 Annual Meeting 2021 annual meeting of Stockholders stockholders (the “2020 2021 Annual Meeting”). Effective upon the 2021 Annual Meeting, the size of the Board shall be reduced by four (4) directors to a total of nine (9) directors. The Company agrees that, provided that such director is able and willing to serve on the Board, it will nominate each of the New Directors, Pxxx Xxxxx, Rxxxxxxx Xxxx-Aimé, Gxxxxx Xxxxxxx, Wxxxxxx Xxxxx, Cxxxxx Xxxxxxx and Kxxx Xxxx (Bthe “2021 Director Slate”) for election at the Company shall 2021 Annual Meeting as a director and will recommend, support and solicit proxies for the election of the Founder Independent Designee each New Director at the 2019 2021 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the Company’s other nominees nominated by the Board for election as directorsdirector nominees.
(iiiii) If a Founder Independent Designee any New Director (or any Replacement Director (as defined below)) is recommended for appointment unable or unwilling to serve as a director and ceases to be a director, resigns as a director, is removed as a director or for any other reason fails to serve or is not serving as a director at any time prior to the expiration of the Standstill Period (as defined below), and at such time RC Ventures beneficially owns in the aggregate at least the lesser of (x) 4.0% of the Company’s then-outstanding Common Stock and (y) 2,789,878 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments), RC Ventures shall have the ability to recommend a person to be a Replacement Director in accordance with this Section 1(a)(ii) (any such replacement nominee, when appointed to the Board, shall be referred to as a “Replacement Director”). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld) in accordance with the Board’s internal procedures, the Charter and the By-Laws, (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have a comparable amount of relevant financial and business experience to the director of the Company being replaced, and (D) as a condition to his or her appointment, have provided the Company with all information required pursuant to Section 1(e)(iv). The Nominating Committee shall make its determination and recommendation regarding whether such Replacement Director meets the foregoing criteria within ten (10) business days after (i) such nominee has submitted to the Company the documentation required by Section 1(e)(iv) and (ii) representatives of the Board determines that have conducted customary interview(s) (if requested by the Board or the Nominating Committee) and background checks of such Founder Independent Designee meets nominee. The Company shall use its reasonable best efforts to conduct any interview(s) contemplated by this Section 1(a)(ii) as promptly as practicable. In the Eligibility Requirements after March 22event the Nominating Committee does not accept a person recommended by RC Ventures who satisfies the conditions set forth in this Section 1(a)(ii) as the Replacement Director (such acceptance not to be unreasonably withheld), 2019, RC Ventures shall have the Company agrees that, right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Independent DesigneeNominating Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of such Replacement Director; provided, however, that if the Board does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(ii), the Parties shall continue to follow the procedures of this Section 1(a)(ii) until a Replacement Director is elected to the Board. Subject to NYSE rules, the Charter, the By-Laws, the charter of the Eligibility Requirementsapplicable committee of the Board and applicable law, upon a Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to increase the size appoint such Replacement Director to any applicable committee of the Board by one of which the replaced director was a member and appoint immediately prior to such director’s resignation or removal. Subject to NYSE rules, the Founder Independent Designee to fill Charter, the newly created directorship effective immediately following By-Laws, the later charter of (A) the 2019 Annual Meeting or (B) the determination applicable committee of the Board and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, one of the other New Directors will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(ii) replacing a New Director prior to the mailing of the Company’s definitive proxy statement for the 2021 Annual Meeting shall stand for election at the 2021 Annual Meeting together with the other director nominees. As used in this Agreement, the terms “beneficial owner” and “beneficially own” shall have the meanings as set forth in Rule 13d-3 promulgated by the SEC under the Exchange Act except that a person will also be deemed to be the Founder Independent Designee meets beneficial owner of all shares of the Eligibility RequirementsCompany’s capital stock which such person has the right to acquire (whether such right is exercisable immediately or only after the passage of time) pursuant to the exercise of any rights in connection with any securities or any agreement, arrangement or understanding (whether or not in writing), regardless of when such rights may be exercised and whether they are conditional, and all shares of the Company’s capital stock which such person or any of such person’s Affiliates or Associates has or shares the right to vote or dispose.
Appears in 1 contract
Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to (A) increase the size of the Board by one member and appoint from twelve (12) to fifteen (15) directors (provided that the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to size of the Board shall automatically decrease to thirteen (13) directors at the 2019 Annual Meeting for a term expiring at conclusion of the Company’s 2020 Annual Meeting of Stockholders (the “2020 2021 Annual Meeting”), ) and (B) appoint to the Board Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxxx and Xxxxx X. Xxxxxx (each, a “New Independent Director” and collectively, the “New Independent Directors”) as directors of the Company shall with terms expiring at the 2021 Annual Meeting.
(ii) The Company agrees that, provided that each such New Independent Director is able and willing to continue to serve on the Board, the Company will include each such New Independent Director (including any Replacement Independent Director (as defined below), as applicable) in the Company’s slate of recommended nominees standing for election at the 2021 Annual Meeting and will recommend, support and solicit proxies for the election of the Founder New Independent Designee Directors at the 2019 2021 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election Company’s other nominees at the 2021 Annual Meeting. The Company confirms that three (3) incumbent members of the other nominees nominated by Board shall not stand for re-election to the Board for election as at the 2021 Annual Meeting and that upon the conclusion of the 2021 Annual Meeting the size of the Board will be set at thirteen (13) directors. The Company shall use its reasonable best efforts to hold the 2021 Annual Meeting no later than May 14, 2021.
(iii) If any New Independent Director (or any Replacement Independent Director) is unable or unwilling to serve as a Founder Independent Designee director, resigns as a director or is recommended removed as a director, or for any other reason fails to serve or is not serving as a director, at any time prior to the expiration of the Standstill Period (as defined below), and at such time Starboard has beneficial ownership of (as determined under Rule 13d-3 promulgated under the Exchange Act) at least the lesser of 1.0% of the Company’s then outstanding shares of Common Stock and 7,440,620 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) (the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person(s) for appointment to the Board in accordance with this Section 1(a)(iii) (any such replacement nominee shall be referred to as a “Replacement Independent Director”, and if and when such person becomes a director of the Company in accordance with this Section 1(a)(iii), such person shall be deemed a New Independent Director for purposes of this Agreement). Any Replacement Independent Director must (A) be reasonably acceptable to the Board, including in light of prior discussions between the Company and Starboard (such acceptance not to be unreasonably withheld), (B) be independent, and not be an affiliate or employee, of Starboard (for the avoidance of doubt, the nomination by Starboard of any person to serve on the board of another company shall not (in and of itself) cause such person not to be deemed independent of Starboard), (C) qualify as “independent” pursuant to the New York Stock Exchange (“NYSE”) listing standards, (D) have the relevant financial and business experience to be a director of the Company, and (E) satisfy the publicly disclosed guidelines, codes and policies with respect to service on the Board determines that (in the case of each of clauses (B) through (E), as reasonably determined by the Nomination and Governance Committee of the Board (the “Nomination and Governance Committee”). The Nomination and Governance Committee shall make its determination and recommendation (which it shall undertake reasonably and in good faith) regarding whether such Founder Independent Designee person meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee as a Replacement Independent Director has submitted to the Company agrees thatthe onboarding documentation required by Section 1(b)(iv) and (2) representatives of the Board have, if requested by the Company, conducted customary interview(s) of such nominee. The Company shall use its reasonable best efforts to conduct the background check and any interview(s) contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s recommendation of such nominee. In the event the Nomination and Governance Committee does not accept a person recommended by Starboard as the Replacement Independent Director, Starboard shall have the right to recommend additional substitute person(s) whose appointment shall be subject to the Founder Nomination and Governance Committee recommending such person in accordance with the procedures described above. The Board shall vote on the appointment of such Replacement Independent DesigneeDirector to the Board no later than five (5) business days after the Nomination and Governance Committee recommendation of such Replacement Independent Director; provided, however, that if the Board does not appoint such Replacement Independent Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Independent Director is appointed to the Board. Upon a Replacement Independent Director’s continued satisfaction of appointment to the Eligibility RequirementsBoard, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Independent Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal or, if the Board or the applicable committee of the Board determines that the Replacement Independent Director does not satisfy the requirements of the NYSE and applicable law with respect to service on the applicable committee (which determination shall be made reasonably and in good faith), to an alternative committee of the Board. Until such time as the Replacement Independent Director is appointed to the applicable committee, one of the other New Independent Directors will be permitted to serve as an interim member of such committee, unless one of the other New Independent Directors is already serving on such committee or the Board or such committee determines that the other New Independent Directors do not satisfy the requirements of the NYSE and applicable law with respect to service on such committee (which determination shall be made reasonably and in good faith). Prior to exercising its right to recommend a Replacement Independent Director for appointment to the Board in accordance with this Section 1(a)(iii), Starboard shall disclose to the Company its beneficial ownership of (as determined under Rule 13d-3 promulgated under the Exchange Act) shares of Common Stock for purposes of satisfying the Minimum Ownership Threshold.
(iv) Subject to the requirements of the NYSE and applicable law with respect to service on the applicable committee, the Company agrees that, immediately following the execution of this Agreement, the Board and all applicable committees of the Board shall take all action necessary to provide each New Independent Director the opportunity to be appointed to at least two (2) standing committees of the Board and, upon such New Independent Director’s consent to serve, immediately appoint such New Independent Director to such standing committee(s) of the Board.
(v) Subject to the requirements of the NYSE and applicable law with respect to service on the applicable committee, during the Standstill Period, the Board and all applicable committees of the Board shall take all action necessary to ensure that each committee of the Board, including any committee of the Board formed after the date of this Agreement, provides at least one New Independent Director the opportunity to be appointed to such committee.
(vi) During the period commencing upon the conclusion of the 2021 Annual Meeting and continuing until the expiration of the Standstill Period, the Board shall take all necessary actions to set the size of the Board at no more than thirteen (13) directors, and shall not increase the size of the Board by one member beyond thirteen (13) directors without Starboard’s prior written consent.
(vii) Starboard, on behalf of itself and appoint its Covered Persons (as defined below), hereby (i) irrevocably withdraws the Founder Independent Designee Nomination Notice and (ii) irrevocably withdraws any related materials or notices submitted to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility RequirementsCompany in connection therewith.
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Board Appointments. (i) Promptly The Company agrees that it shall take all action as is necessary (including, without limitation, calling a special meeting of the Board), effective immediately following the execution of this Agreement, to (i) accept the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder resignations of Messrs. Xxxxx and Key and Xx. Xxxx from their positions as directors on the Board, each in its sole and absolute discretioneffective June 15, 2018, (Dii) qualifies cause Xx. X’Xxxxxxx and Xx. Xxxxx to be appointed to the Board as “independent” pursuant Class I directors, to The Nasdaq Stock Market’s fill the vacancies caused by the resignations of Messrs. Xxxxx and Key, to serve until the 2018 Annual Meeting or until their successors are duly elected and qualified (or their earlier death, resignation or removal), (iii) cause the Unnamed Director (who shall be selected, vetted, and appointed by the Nominating and Corporate Governance Committee (“NasdaqNominating Committee”), as re-constituted per Section 1(d) listing rulesbelow) to the Board as a Class II director, to fill the vacancy caused by the resignation of Xx. Xxxxxx, to serve until the 2019 Annual Meeting or until his successor is duly elected and qualified (Eor his earlier death, resignation or removal), and (iv) cause Xx. Xxxxx to be appointed to the Board as a Class III director, to fill the vacancy caused by the resignation of Xx. Xxxx, to serve as set forth in Section 1(a)(ii) or until her successor is independent duly elected and qualified (or her earlier death, resignation or removal). During the Standstill Period, other than by vote of Founder and Starboard, (F) does not have a conflict the stockholders of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable shall not (X) seek to all directors change the classes on which the Board members serve without the unanimous consent of the Company Board, or (subject Y) other than pursuant to any phase-in periods generally applicable to new directors, such as stock ownership requirements(1) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director unanimous consent of the Company. Founder acknowledges that Board or (2) the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by exercise of a right to designate a member of the Company, Board pursuant to submit an applicable agreement relating to the Company composition of the Board or a fully completed copy provision of the Company’s standard director Amended and officer questionnaire and other reasonable and customary director onboarding documentation required by Restated Certificate of Incorporation (as amended to date, the Company in connection with the appointment or election “Certificate of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptlyIncorporation”), and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If increase the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree in size to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraphmore than eight directors.
(ii) If Subject to the condition precedent that the declassification proposal set forth in Section 2(b)(i)(B)) below is approved at the 2018 Annual Meeting, each of Xxxxx X. Xxxxxxx (a Founder Independent Designee is recommended for appointment as a director Class III member of the Company Board) and Xx. Xxxxx shall resign from their positions as Class III directors immediately following the 2018 Annual Meeting, and shall immediately thereafter be appointed by the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees as Directors of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately, and nominate, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 Annual Meeting for a term expiring at the Company’s 2020 Annual Meeting of Stockholders (the “2020 Annual Meeting”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee at the 2019 Annual Meeting in the same manner as it recommends, supports and solicits proxies for the election of the other nominees nominated by the Board for election as directors.
(iii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements after March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, the Board and all applicable committees of the Board shall take all necessary actions to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) serve until the 2019 Annual Meeting or until their successors are duly elected and qualified (Bor their earlier death, resignation or removal). For the avoidance of doubt, both Xx. Xxxxxxx’x and Xx. Xxxxx’x resignations as set forth in this Section 1(a)(ii) are conditioned on the determination of the Board that the Founder Independent Designee meets the Eligibility Requirements.Board’s action to immediately reappoint
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Board Appointments. (i) Promptly The Company agrees that immediately following the execution of this Agreement, the Parties agree to cooperate to identify a mutually acceptable independent director (a “Founder Independent Designee”) who (A) is not the Founder, (B) has business, restaurant, marketing, technology, accounting, finance and/or other relevant experiences or expertise, (C) is acceptable to Founder and the Board, each in its sole and absolute discretion, (D) qualifies as “independent” pursuant to The Nasdaq Stock Market’s (“Nasdaq”) listing rules, (E) is independent of Founder and Starboard, (F) does not have a conflict of interest with the Company, and (G) satisfies the publicly disclosed corporate governance guidelines and policies with respect to service on the Board that are generally applicable to all directors of the Company (subject to any phase-in periods generally applicable to new directors, such as stock ownership requirements) (clauses (A)-(G), the “Eligibility Requirements”), to recommend for appointment as a director of the Company. Founder acknowledges that the Founder Independent Designee or proposed Founder Independent Designee may be required, if requested by the Company, to submit to the Company a fully completed copy of the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required by the Company in connection with the appointment or election of new Board members generally. The Board shall make its determination and recommendation regarding whether a Founder Independent Designee meets the Eligibility Requirements promptly, and in any event within ten (10) business days, after such nominee has submitted to the Company the documentation required by the previous sentence. If the Board determines that a proposed Founder Independent Designee does not meet the Eligibility Requirements, the Parties agree to thereafter cooperate to identify another proposed Founder Independent Designee whose appointment shall be subject to meeting the Eligibility Requirements in accordance with the procedures described in this paragraph.
(ii) If a Founder Independent Designee is recommended for appointment as a director of the Company and the Board determines that such Founder Independent Designee meets the Eligibility Requirements on or prior to March 22, 2019, the Company agrees that, subject to the Founder Independent Designee’s continued satisfaction of the Eligibility Requirements, (A) the Board and all applicable committees of the Board shall take all necessary actions to increase appoint Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx III, and Xxxxxx X. Xxxxxx (each an “Appointed Director” and, collectively, the size “Appointed Directors”) and Xxxxxxxxx Xxxx (the “Additional Independent Director” and, collectively with the Appointed Directors, the “New Directors”) as directors of the Company. Prior to the date of this Agreement, each of the New Directors has submitted to the Company a fully completed copy of the Company’s standard director & officer questionnaire (the “D&O Questionnaire”).
(ii) The Company agrees that (A) the Board by one member and appoint shall nominate the Founder Independent Designee to fill the newly created directorship effective immediatelyfollowing individuals, and nominateonly the following individuals, along with its other nominees, the Founder Independent Designee for election to the Board at the 2019 2018 Annual Meeting for a term terms expiring at the Company’s 2020 Annual Meeting 2019 annual meeting of Stockholders shareholders (the “2020 2019 Annual Meeting”) and subject to their consent to serve: (x) each Appointed Director (including any Replacement Director); (y) the Additional Independent Director; and (z) Xxxxxxx X. Xxxxxx, Xxxxxxxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxxx, Xxxx Xxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxx Xxxxxxx, and Xxxxxx X. Xxxxxx (collectively, the “Continuing Directors”), and (B) the Company shall recommend, support and solicit proxies for the election of the Founder Independent Designee Appointed Directors at the 2019 2018 Annual Meeting in the same manner as it recommends, supports supports, and solicits proxies for the election of the other nominees nominated by Continuing Directors and the Board for election as directorsAdditional Independent Director. The Company shall use its reasonable best efforts to hold the 2018 Annual Meeting no later than May 31, 2018.
(iii) If any Appointed Director (or any Replacement Director, as defined below) is unable or unwilling to serve as a Founder Independent Designee director and ceases to be a director, resigns as a director or is recommended removed as a director prior to the expiration of the Standstill Period (as defined below), and at such time Starboard beneficially owns (as determined under Rule 13d-3 promulgated under the Exchange Act) in the aggregate at least the lesser of 1.5% of the Company’s then-outstanding Common Stock (on an as-converted basis, if applicable) and 1,364,633 shares of Common Stock (subject to adjustment for appointment stock splits, reclassifications, combinations and similar adjustments) (such lesser amount, the “Minimum Ownership Threshold”), Starboard shall have the ability to recommend a substitute person in accordance with this Section 1(a)(iii) (any such replacement nominee shall be referred to as a “Replacement Director”). Any Replacement Director must (A) be reasonably acceptable to the Board (such acceptance not to be unreasonably withheld), (B) qualify as “independent” pursuant to New York Stock Exchange (“NYSE”) listing standards, (C) have the relevant financial and business experience to be a director of the Company and (D) be independent of Starboard (for the avoidance of doubt, the nomination by Starboard of such person to serve on the board of any other company shall not, in and of itself, cause such person to not be deemed independent of Starboard). The Nominating and Corporate Governance Committee of the Board determines that (the “Nominating Committee”) shall make its determination and recommendation regarding whether such Founder Independent Designee Replacement Director meets the Eligibility Requirements foregoing criteria within five (5) business days after March 22, 2019, (1) such nominee has submitted to the Company agrees thatthe D&O Questionnaire and (2) representatives of the Board have conducted customary interviews of such nominee. The Company shall use its reasonable best efforts to conduct any interviews contemplated by this Section 1(a)(iii) as promptly as practicable, but in any case, assuming reasonable availability of the nominee, within ten (10) business days after Starboard’s submission of such nominee. In the event the Nominating Committee does not accept a person recommended by Starboard as a Replacement Director, Starboard shall have the right to recommend additional substitute persons whose appointment shall be subject to the Founder Independent DesigneeNominating Committee recommending such persons in accordance with the procedures described above. Upon the recommendation of a Replacement Director nominee by the Nominating Committee, the Board shall vote on the appointment of such Replacement Director to the Board no later than five (5) business days after the Nominating Committee’s continued satisfaction recommendation of such Replacement Director; provided, however, that if the Eligibility RequirementsBoard does not appoint such Replacement Director to the Board pursuant to this Section 1(a)(iii), the Parties shall continue to follow the procedures of this Section 1(a)(iii) until a Replacement Director is elected to the Board. Subject to NYSE rules and applicable law, upon a Replacement Director’s appointment to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint such Replacement Director to any applicable committee of the Board of which the replaced director was a member immediately prior to such director’s resignation or removal. Subject to NYSE rules and applicable law, until such time as any Replacement Director is appointed to any applicable committee of the Board, one of the other Appointed Directors (as designated by Starboard) will serve as an interim member of such applicable committee. Any Replacement Director designated pursuant to this Section 1(a)(iii) replacing an Appointed Director prior to the 2018 Annual Meeting shall stand for election at the 2018 Annual Meeting together with the Company’s other nominees. Starboard shall promptly (and in any event within five business days) inform the Company in writing if Starboard fails to satisfy the Minimum Ownership Threshold at any time.
(iv) During the period commencing with the 2018 Annual Meeting through the expiration of the Standstill Period, the Board shall take all necessary actions to set the size of the Board at no more than 13 directors, unless Starboard consents in writing to any proposal to increase the size of the Board by one member and appoint the Founder Independent Designee to fill the newly created directorship effective immediately following the later of (A) the 2019 Annual Meeting or (B) the determination of the Board that the Founder Independent Designee meets the Eligibility RequirementsBoard.
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Samples: Shareholder Agreement (Bemis Co Inc)
