Board Composition and Other Company Matters. (a) Immediately following the execution of this Agreement, the Board, and all applicable committees of the Board, shall take all necessary actions to increase the size of the Board to eight (8) directors and shall appoint Xxxxxx Xxxx (the “New Director”), who shall fill the vacancy resulting from the newly created directorship, to the Board with a term expiring at the Company’s fiscal year 2025 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2025 Annual Meeting”). 2 (i) The Board, and all applicable committees of the Board, shall take all necessary actions to nominate and recommend the New Director as a candidate for election to the Board at each of the 2025 Annual Meeting, the Company’s fiscal year 2026 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2026 Annual Meeting”) and any other meeting of the Company’s stockholders held prior to the Termination Date (as defined below) at which directors are to be elected (an “Election Meeting”), and the Company agrees to recommend, support and solicit proxies for the election of the New Director at each of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees. (ii) As a condition to the Company’s obligation to appoint the New Director and nominate the New Director for election at each of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, the New Director shall be required to provide information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed and executed copy of the Company’s director candidate questionnaire (in the form completed by the Company’s incumbent non-management directors), in each case, on the same basis as the Company’s incumbent non-management directors, to enable the timely filing of the Company’s proxy statement and other periodic reports with the Securities and Exchange Commission (the “SEC”). (b) The Company agrees that (i) the Board will neither nominate nor recommend that the stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxx Xxxxx at the 2025 Annual Meeting, (ii) the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Beindorff, Fife, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2026 Annual Meeting and (iii) unless there is a vacancy on the Board at the time the Board approves its slate of director candidates for the Company’s fiscal year 2027 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2027 Annual Meeting”), the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Xxxx, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2027 Annual Meeting; provided, however, that the foregoing shall not limit the Board’s right to nominate or recommend any non-incumbent director to fill any vacancy pursuant to Article FIFTH, Section B of the Certificate of Incorporation subject to the terms and conditions of Section 1(c) below. (c) The Company agrees that (i) from the Effective Date until the commencement of the 2026 Annual Meeting, the size of the Board shall be no greater than (d) Each Party acknowledges that the New Director, upon appointment to the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all members of the Board, including, but not limited to, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Board Conflicts of Interest Policy, Xxxxxxx Xxxxxxx Policy and any other policies regarding stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”), and will be required to adhere to the Company’s policies on confidentiality imposed on all members of the Board on the same basis as other members of the Board. The Company agrees that, upon appointment to the Board, the New Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board. (e) If, from the Effective Date until the Termination Date, the New Director (or any Replacement (as defined below)) is unable or unwilling to serve as a director, resigns as a director, is removed as a director or otherwise ceases to be a director for any other reason, then the Stockholder Parties and the Company shall mutually agree upon a replacement director (a “Replacement”) to fill such vacancy created by the departing New Director (or any Replacement) being replaced (the “Former Director”). Any Replacement(s) identified pursuant to this Section 1(e) shall qualify as “independent” pursuant to The Nasdaq Stock Market LLC’s listing standards (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading) and SEC rules and regulations, and such Replacement shall be expeditiously appointed to the Board, subject to the recommendation (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee of the Board, after conducting a good faith customary due diligence process and consistent with its fiduciary duties. Any Replacement(s) appointed to the Board in accordance with this Section 1(e) shall be appointed to any applicable committees of the Board of which the Former Director was a member immediately prior to such Replacement’s appointment. Any rights or obligations of the Board and the Stockholder Parties as provided in this Section 1(e) shall terminate when the Stockholder Parties in the aggregate cease to beneficially own at least the lesser of (A) 5.0% of the Company’s then outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) and (B) 643,423 shares of Common Stock. All references to the “New Director,” for purposes of this Agreement, shall be deemed references to the Replacement who replaces the Former Director in the event that a Replacement is appointed. Until the Termination Date, any Replacement designated pursuant to this Section 1(e) replacing the New Director prior to the mailing of the Company’s definitive proxy statement for the Company’s applicable annual meeting of stockholders shall stand for election at such meeting together with the Company’s other director nominees.
Appears in 1 contract
Board Composition and Other Company Matters. (a) Immediately following Recommendation of Class 1 Series A Director. Pursuant to Section 13(c) of that certain Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of Lifecore Biomedical, Inc. (the execution “Series A Certificate of this AgreementDesignation”), Legion Partners, L.P. I (“LP I”), one of the two largest holders of shares of Series A Preferred Shares as of the Effective Date, designates Xxxxxxxxxxx Xxxxx (the “Class 1 Series A Director”) for election to the Board as a Series A Preferred Director (as defined in the Series A Certificate of Designation) at the Company’s annual meeting of stockholders for the 2024 fiscal year (the “2024 Annual Meeting”). The Board hereby, on a one-time basis, waives compliance with the notice deadline established in Section 2.5 of the Amended and Restated Bylaws of Lifecore Biomedical, Inc. (the “Bylaws”) in connection with such designation. Subject to, and conditioned upon, (i) receipt by the Company of a written designation of Xxxxxxxxxxx Xxxxx by the other largest holder of Series A Preferred Shares as of the Effective Date and (ii) the satisfaction of the Preferred Stock Director Designation Right Condition (as defined in the Series A Certificate of Designation) as of immediately prior to the 2024 Annual Meeting (the “Class 1 Series A Director Qualification Conditions”), the Board, and all applicable committees of the Board, shall (A) take all necessary actions to increase nominate the size Class 1 Series A Director as a director (or Class 1 director if applicable at such time) and as a Series A Preferred Director (as defined in the Series A Certificate of the Board to eight (8) directors and shall appoint Xxxxxx Xxxx (the “New Director”), who shall fill the vacancy resulting from the newly created directorship, Designation) for election to the Board by the holders of the Series A Preferred Shares, voting separately as a class, at the 2024 Annual Meeting with a term expiring at the Company’s fiscal year 2025 annual meeting of stockholders for the 2026 fiscal year (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2025 2026 Annual Meeting”).
2 , and until his or her successor is duly elected and qualified (ior, if the Declassification Proposal (as defined below) The is approved by the Company’s stockholders at the 2023 Annual Meeting and the Declassification Amendment (as defined below) is subsequently filed and accepted by the Secretary of State of the State of Delaware prior to the 2024 Annual Meeting, with a term expiring at the 2025 Annual Meeting, and until his or her successor is duly elected and qualified), (B) to list the Class 1 Series A Director in the Company’s proxy statement and proxy card prepared, filed with the SEC and delivered to the Company’s stockholders in connection with the 2024 Annual Meeting and to solicit proxies for the election of the Class 1 Series A Director at the 2024 Annual Meeting in the same manner (except for differences related to the fact that the Class 1 Series A Director is subject to a separate class vote of the holders of the Series A Preferred Shares) as it solicits proxies for the election of the Company’s other director nominees and (C) subject to the good faith exercise of the Board’s, and all applicable committees of the Board’s, shall take all necessary actions to nominate and fiduciary duties under applicable law, recommend the New Director as a candidate for election to the Board at each of the 2025 Annual Meeting, the Company’s fiscal year 2026 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2026 Annual Meeting”) and any other meeting of the Company’s stockholders held prior to the Termination Date (as defined below) at which directors are to be elected (an “Election Meeting”), and the Company agrees to recommend, support and solicit proxies for the election of the New Class 1 Series A Director at each the 2024 Annual Meeting in the same manner (except for the fact that the Class 1 Series A Director is subject to a separate class vote of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees.
(ii) As a condition to the Company’s obligation to appoint the New Director and nominate the New Director for election at each holders of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, the New Director shall be required to provide information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed and executed copy of the Company’s director candidate questionnaire (in the form completed by the Company’s incumbent non-management directors), in each case, on the same basis Series A Preferred Shares) as the Company’s incumbent non-management directors, to enable the timely filing of the Company’s proxy statement and other periodic reports with the Securities and Exchange Commission (the “SEC”).
(b) The Company agrees that (i) the Board will neither nominate nor recommend that the stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxx Xxxxx at the 2025 Annual Meeting, (ii) the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Beindorff, Fife, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2026 Annual Meeting and (iii) unless there is a vacancy on the Board at the time the Board approves its slate of director candidates it recommends for the Company’s fiscal year 2027 annual meeting election of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2027 Annual Meeting”), the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Xxxx, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2027 Annual Meeting; provided, however, that the foregoing shall not limit the Board’s right to nominate or recommend any non-incumbent director to fill any vacancy pursuant to Article FIFTH, Section B of the Certificate of Incorporation subject to the terms and conditions of Section 1(c) below.
(c) The Company agrees that (i) from the Effective Date until the commencement of the 2026 Annual Meeting, the size of the Board shall be no greater than
(d) Each Party acknowledges that the New Director, upon appointment to the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all members of the Board, including, but not limited to, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Board Conflicts of Interest Policy, Xxxxxxx Xxxxxxx Policy and any other policies regarding stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”), and will be required to adhere to the Company’s policies on confidentiality imposed on all members of the Board on the same basis as other members of the Board. The Company agrees that, upon appointment to the Board, the New Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board.
(e) If, from the Effective Date until the Termination Date, the New Director (or any Replacement (as defined below)) is unable or unwilling to serve as a director, resigns as a director, is removed as a director or otherwise ceases to be a director for any other reason, then the Stockholder Parties and the Company shall mutually agree upon a replacement director (a “Replacement”) to fill such vacancy created by the departing New Director (or any Replacement) being replaced (the “Former Director”). Any Replacement(s) identified pursuant to this Section 1(e) shall qualify as “independent” pursuant to The Nasdaq Stock Market LLC’s listing standards (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading) and SEC rules and regulations, and such Replacement shall be expeditiously appointed to the Board, subject to the recommendation (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee of the Board, after conducting a good faith customary due diligence process and consistent with its fiduciary duties. Any Replacement(s) appointed to the Board in accordance with this Section 1(e) shall be appointed to any applicable committees of the Board of which the Former Director was a member immediately prior to such Replacement’s appointment. Any rights or obligations of the Board and the Stockholder Parties as provided in this Section 1(e) shall terminate when the Stockholder Parties in the aggregate cease to beneficially own at least the lesser of (A) 5.0% of the Company’s then outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) and (B) 643,423 shares of Common Stock. All references to the “New Director,” for purposes of this Agreement, shall be deemed references to the Replacement who replaces the Former Director in the event that a Replacement is appointed. Until the Termination Date, any Replacement designated pursuant to this Section 1(e) replacing the New Director prior to the mailing of the Company’s definitive proxy statement for the Company’s applicable annual meeting of stockholders shall stand for election at such meeting together with the Company’s other director nominees. The Class 1 Series A Director agrees that he or she will recuse himself or herself from such portions of meetings of the Board or committees of the Board, if any, involving actual conflicts 2| of interest between the Company and the holders of Series A Preferred Shares. Further, in the event the Declassification Proposal is approved by the Company’s stockholders at the 2023 Annual Meeting and the Declassification Amendment is subsequently filed and accepted by the Secretary of State of the State of Delaware prior to the 2024 Annual Meeting, all obligations set forth in this Section 1(a) shall apply with respect to the 2025 Annual Meeting in all respects.
Appears in 1 contract
Samples: Cooperation Agreement (Lifecore Biomedical, Inc. \De\)
Board Composition and Other Company Matters. (a) Immediately following Recommendation of Class 1 Series A Director. Pursuant to Section 13(c) of that certain Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock of Lifecore Biomedical, Inc. (the execution “Series A Certificate of this AgreementDesignation”), Wynnefield Capital Management, LLC (“WCM”) designates Xxxxxxxxxxx Xxxxx (the “Class 1 Series A Director”) for election to the Board as a Series A Preferred Director (as defined in the Series A Certificate of Designation) at the Company’s annual meeting of stockholders for the 2024 fiscal year (the “2024 Annual Meeting”). The Board hereby, on a one-time basis, waives compliance with the notice deadline established in Section 2.5 of the Amended and Restated Bylaws of Lifecore Biomedical, Inc. (the “Bylaws”) in connection with such designation. Subject to, and conditioned upon, (i) receipt by the Company of a written designation of Xxxxxxxxxxx Xxxxx by the two largest holders of Series A Preferred Shares as of the Effective Date and (ii) the satisfaction of the Preferred Stock Director Designation Right Condition (as defined in the Series A Certificate of Designation) as of immediately prior to the 2024 Annual Meeting (the “Class 1 Series A Director Qualification Conditions”), the Board, and all applicable committees of the Board, shall (A) take all necessary actions to increase nominate the size Class 1 Series A Director as a director (or Class 1 director if applicable at such time) and as a Series A Preferred Director (as defined in the Series A Certificate of the Board to eight (8) directors and shall appoint Xxxxxx Xxxx (the “New Director”), who shall fill the vacancy resulting from the newly created directorship, Designation) for election to the Board by the holders of the Series A Preferred Shares, voting separately as a class, at the 2024 Annual Meeting with a term expiring at the Company’s fiscal year 2025 annual meeting of stockholders for the 2026 fiscal year (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2025 2026 Annual Meeting”).
2 , and until his or her successor is duly elected and qualified (ior, if the Declassification Proposal (as defined below) The is approved by the Company’s stockholders at the 2023 Annual Meeting and the Declassification Amendment (as defined below) is subsequently filed and accepted by the Secretary of State of the State of Delaware prior to the 2024 Annual Meeting, with a term expiring at the 2025 Annual Meeting, and until his or her successor is duly elected and qualified), (B) to list the Class 1 Series A Director in the Company’s proxy statement and proxy card prepared, filed with the SEC and delivered to the Company’s stockholders in connection with the 2024 Annual Meeting and to solicit proxies for the election of the Class 1 Series A Director at the 2024 Annual Meeting in the same manner (except for differences related to the fact that the Class 1 Series A Director is subject to a separate class vote of the holders of the Series A Preferred Shares) as it solicits proxies for the election of the Company’s other director nominees and (C) subject to the good faith exercise of the Board’s, and all applicable committees of the Board’s, shall take all necessary actions to nominate and fiduciary duties under applicable law, recommend the New Director as a candidate for election to the Board at each of the 2025 Annual Meeting, the Company’s fiscal year 2026 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2026 Annual Meeting”) and any other meeting of the Company’s stockholders held prior to the Termination Date (as defined below) at which directors are to be elected (an “Election Meeting”), and the Company agrees to recommend, support and solicit proxies for the election of the New Class 1 Series A Director at each the 2024 Annual Meeting in the same manner (except for the fact that the Class 1 Series A Director is subject to a separate class vote of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees.
(ii) As a condition to the Company’s obligation to appoint the New Director and nominate the New Director for election at each holders of the 2025 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, the New Director shall be required to provide information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed and executed copy of the Company’s director candidate questionnaire (in the form completed by the Company’s incumbent non-management directors), in each case, on the same basis Series A Preferred Shares) as the Company’s incumbent non-management directors, to enable the timely filing of the Company’s proxy statement and other periodic reports with the Securities and Exchange Commission (the “SEC”).
(b) The Company agrees that (i) the Board will neither nominate nor recommend that the stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxx Xxxxx at the 2025 Annual Meeting, (ii) the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Beindorff, Fife, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2026 Annual Meeting and (iii) unless there is a vacancy on the Board at the time the Board approves its slate of director candidates it recommends for the Company’s fiscal year 2027 annual meeting election of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2027 Annual Meeting”), the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Xxxx, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2027 Annual Meeting; provided, however, that the foregoing shall not limit the Board’s right to nominate or recommend any non-incumbent director to fill any vacancy pursuant to Article FIFTH, Section B of the Certificate of Incorporation subject to the terms and conditions of Section 1(c) below.
(c) The Company agrees that (i) from the Effective Date until the commencement of the 2026 Annual Meeting, the size of the Board shall be no greater than
(d) Each Party acknowledges that the New Director, upon appointment to the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all members of the Board, including, but not limited to, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Board Conflicts of Interest Policy, Xxxxxxx Xxxxxxx Policy and any other policies regarding stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”), and will be required to adhere to the Company’s policies on confidentiality imposed on all members of the Board on the same basis as other members of the Board. The Company agrees that, upon appointment to the Board, the New Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board.
(e) If, from the Effective Date until the Termination Date, the New Director (or any Replacement (as defined below)) is unable or unwilling to serve as a director, resigns as a director, is removed as a director or otherwise ceases to be a director for any other reason, then the Stockholder Parties and the Company shall mutually agree upon a replacement director (a “Replacement”) to fill such vacancy created by the departing New Director (or any Replacement) being replaced (the “Former Director”). Any Replacement(s) identified pursuant to this Section 1(e) shall qualify as “independent” pursuant to The Nasdaq Stock Market LLC’s listing standards (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading) and SEC rules and regulations, and such Replacement shall be expeditiously appointed to the Board, subject to the recommendation (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee of the Board, after conducting a good faith customary due diligence process and consistent with its fiduciary duties. Any Replacement(s) appointed to the Board in accordance with this Section 1(e) shall be appointed to any applicable committees of the Board of which the Former Director was a member immediately prior to such Replacement’s appointment. Any rights or obligations of the Board and the Stockholder Parties as provided in this Section 1(e) shall terminate when the Stockholder Parties in the aggregate cease to beneficially own at least the lesser of (A) 5.0% of the Company’s then outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) and (B) 643,423 shares of Common Stock. All references to the “New Director,” for purposes of this Agreement, shall be deemed references to the Replacement who replaces the Former Director in the event that a Replacement is appointed. Until the Termination Date, any Replacement designated pursuant to this Section 1(e) replacing the New Director prior to the mailing of the Company’s definitive proxy statement for the Company’s applicable annual meeting of stockholders shall stand for election at such meeting together with the Company’s other director nominees. The Class 1 Series A Director agrees that he or she will recuse himself or herself from such portions of meetings of the Board or committees of the Board, if any, involving actual conflicts of interest between the Company and the holders of || Series A Preferred Shares. Further, in the event the Declassification Proposal is approved by the Company’s stockholders at the 2023 Annual Meeting and the Declassification Amendment is subsequently filed and accepted by the Secretary of State of the State of Delaware prior to the 2024 Annual Meeting, all obligations set forth in this Section 1(a) shall apply with respect to the 2025 Annual Meeting in all respects.
Appears in 1 contract
Samples: Cooperation Agreement (Lifecore Biomedical, Inc. \De\)
Board Composition and Other Company Matters. (a) Immediately following the upon execution of this Agreement, the Board, and all applicable committees of the Board, shall take all necessary actions to increase the size appoint each of the Board to eight Xxxxxxx Xxxxxxxxxxxxx and Xxxxxxx Xxxxxxx (8) directors each a “GP Director” and shall appoint Xxxxxx Xxxx (together, the “New DirectorGP Directors”)) to the Board, who shall fill the vacancy two (2) vacancies resulting from two (2) prior resignations from the newly created directorshipBoard, to the Board with a term terms of each GP Director expiring at the Company’s fiscal year 2025 2024 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2025 2024 Annual Meeting”). The Company represents that as of the Effective Date it has received and accepted the previously submitted notices of resignation of two (2) incumbent directors of the Company.
2 (b) As promptly as practicable following execution of this Agreement, the Board, and all applicable committees of the Board, shall direct the Board’s Nominations and Corporate Governance Committee (the “NCG Committee”) to conduct a search for a gender diverse director to appoint as a new director to the Board (the “Additional Director”). The Additional Director shall be mutually agreed upon by the incumbent directors and the GP Directors; provided, however, that neither Party’s consent or agreement shall be unreasonably withheld, conditioned or delayed.
(c) Prior to the appointment of the Additional Director, the Board, and all applicable committees of the Board, shall take all necessary actions to increase and fix the authorized maximum size of the Board to eight (8) directors (the “Board Size”), and (ii) promptly thereafter appoint the Additional Director to the Board to fill the resulting vacancy, with such appointment taking place no later than December 31, 2024, or such later date as agreed by the Parties in writing.
(i) The Board, and all applicable committees of the Board, shall take all necessary actions to nominate and recommend the New GP Directors and the Additional Director (if then appointed) as a candidate candidates for election to the Board at each of the 2025 2024 Annual Meeting, the Company’s fiscal year 2026 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2026 Annual Meeting”) and any other meeting of the Company’s stockholders held prior to the Termination Date (as defined below) at which directors are to be elected (an “Election Meeting”), and the Company agrees to recommend, support and solicit proxies for the election of the New GP Directors and the Additional Director (if then appointed) at each of the 2025 Annual Meeting, the 2026 2024 Annual Meeting and any Election Meeting, in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees.
(ii) As a condition to the Company’s obligation to appoint the New Director and nominate the New Director GP Directors for election at each of the 2025 2024 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, the New each GP Director shall (A) be required to provide information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed and executed copy of the Company’s director candidate questionnaire (substantially in the form completed by the Company’s incumbent non-management directors), in each case, on the same basis as the Company’s incumbent non-management directors, promptly as practicable to enable the timely filing of the Company’s proxy statement and other periodic reports with the Securities and Exchange Commission (the “SEC”); (B) consent to and participate in an appropriate background check comparable to those undergone by other non-management directors of the Company; (C) have complied at all times with the Company Policies (as defined below) after he has been appointed to the Board; (D) participate in an interview by, and receive a favorable recommendation from, the NCG Committee (with such favorable recommendation not to be unreasonably withheld, conditioned or delayed); (E) to the extent the members of the Board request, meet with all requesting members of the Board not then serving on the NCG Committee; (F) consent to being named by the Company as a nominee for election to the Board in any applicable proxy statement, proxy card or other solicitation materials of the Company in connection with the 2024 Annual Meeting; and (G) agree, if elected to the Board, to act in the capacity of a director of the Company and to serve the full term as a director.
(b) The Company agrees that (i) the Board will neither nominate nor recommend that the stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxx Xxxxx at the 2025 Annual Meeting, (ii) the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Beindorff, Fife, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2026 Annual Meeting and (iii) unless there is a vacancy on During the Board at the time the Board approves its slate term of director candidates for the Company’s fiscal year 2027 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2027 Annual Meeting”)this Agreement, the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Xxxx, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2027 Annual Meeting; provided, however, that the foregoing shall not limit the Board’s right to nominate or recommend any non-incumbent director to fill any vacancy pursuant to Article FIFTH, Section B of the Certificate of Incorporation subject to the terms and conditions of Section 1(c) below.
(c) The Company agrees that (i) from the Effective Date until the commencement of the 2026 Annual Meeting, otherwise increase the size of the Board shall be no greater thanabove eight (8) directors.
(d) Each Party acknowledges that the New DirectorGP Directors, upon appointment to the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all members of the Board, including, but not limited to, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Board Conflicts of Interest Policy, Xxxxxxx Xxxxxxx Policy and any other policies regarding stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”), and will be required to strictly adhere to the Company’s policies on confidentiality imposed on all members of the Board on the same basis as other members of the Board. The Company agrees that, upon appointment to the Board, the New each GP Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his or her service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board.
(e) IfAs promptly as practicable following execution of this Agreement, from the Effective Date Board shall take all necessary actions to establish a committee dedicated to the evaluation, consideration and analysis of the Company’s business strategy and capital allocation policies and decision making concerning the foregoing (such committee, the “Strategy and Capital Allocation Committee”). Until the Termination Date, the Strategy and Capital Allocation Committee shall be comprised of no more than four (4) directors and shall initially include each of the GP Directors, and two incumbent tenured directors; provided that each GP Director shall remain on the Strategy and Capital Allocation Committee during the term of this Agreement.
(f) As promptly as practicable following execution of this Agreement, the Board shall take all necessary actions to appoint one GP Director to each of the Compensation Committee of the Board and the NCG Committee, which shall each, until the Termination Date, be comprised of no more than three (3) directors.
(g) If, at any time prior to the New Director Termination Date, either of the GP Directors (or any Replacement Director (as defined below)) designated by the GP Parties is unable or unwilling to serve as a director, resigns as a director, is removed as a director or otherwise and ceases to be a director for any other reasondirector, then the Stockholder GP Parties and shall have the right to propose to the Company shall mutually agree upon a replacement director (a “ReplacementReplacement Director”) to fill such vacancy created by the departing New Director (or any Replacement) being replaced (the “Former Director”). Any Replacement(s) identified pursuant to this Section 1(e) shall qualify with relevant financial and business experience, who qualifies as “independent” pursuant to The Nasdaq Stock Market LLCNasdaq’s listing standards (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading) and ), the SEC rules and regulations, and such whose qualifications are substantially similar to the GP Director (or any Replacement Director) being replaced (the “Former Director”); provided that the GP Parties’ right to propose a Replacement Director pursuant to this Section 1(h) shall terminate when the GP Parties cease to beneficially own, in the aggregate, the Minimum Ownership Threshold (as defined below). Any candidate for Replacement Director shall be expeditiously appointed to the Board, subject to the recommendation (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee reasonable approval of the Board, after conducting a good faith customary due diligence process and consistent with its fiduciary dutieswhich approval shall not be unreasonably withheld, conditioned or delayed. Any Replacement(s) Replacement Director appointed to the Board in accordance with this Section 1(e1(h) shall be appointed to any applicable committees committee of the Board of on which the Former Director was a member served immediately prior to such Replacement’s appointmentthe termination of his or her service on the Board. Any rights or obligations of In the event the Board and or the Stockholder NCG Committee determines in good faith not to approve any Replacement Director proposed by the GP Parties, the GP Parties as provided shall have the right to propose additional Replacement Directors in accordance with this Section 1(e1(h) shall terminate when until a Replacement Director is appointed to the Stockholder Parties in the aggregate cease to beneficially own at least the lesser of (A) 5.0% of the Company’s then outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) and (B) 643,423 shares of Common StockBoard. All references to the “New GP Director,” for purposes of this Agreement, shall be deemed references to the Replacement person who replaces the Former applicable GP Director or any succeeding Replacement Director consistent with this Section 1(h), in the event that a Replacement Director is appointed.
(h) The GP Parties acknowledge and agree that each of the GP Directors shall immediately tender his or her resignation from the Board (it being understood that the Board shall have the right to decline to accept such resignation) if the GP Parties cease to beneficially own, in the aggregate, the Minimum Ownership Threshold. Until Following the Termination Date, any Replacement designated effectiveness of the resignation of the GP Directors pursuant to this Section 1(e) replacing the New Director prior to the mailing of 1(i), the Company’s definitive proxy statement for obligations under this Section 1 shall terminate.
(i) As promptly as practicable following the Company’s execution of this Agreement, the Board shall take all necessary actions to separate the roles of Chief Executive Officer and Chairman and in connection with such separation, dissolve the position of Lead Independent Director.
(j) As promptly as practicable following the execution of this Agreement, the Board shall take all necessary actions to authorize and approve an increase to the share repurchase program, which was previously announced on June 28, 2024, to permit the continued repurchase of up to $10,000,000 worth of Common Stock; provided, however, that any purchases made under such programs shall be subject to market conditions, applicable annual meeting legal requirements, including, but not limited to, Sections 78.411 – 78.444 of stockholders shall stand for election at such meeting together with the Company’s General Corporation Law of Nevada, and other director nomineesrelevant factors, as determined by the Board in its sole discretion.
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Board Composition and Other Company Matters. (a) Immediately following the upon execution of this Agreement, the Board, and all applicable committees of the Board, shall take all necessary actions to increase the size appoint each of the Board to eight Xxxxxxx Xxxxxxxxxxxxx and Xxxxxxx Xxxxxxx (8) directors each a “GP Director” and shall appoint Xxxxxx Xxxx (together, the “New DirectorGP Directors”)) to the Board, who shall fill the vacancy two (2) vacancies resulting from two (2) prior resignations from the newly created directorshipBoard, to the Board with a term terms of each GP Director expiring at the Company’s fiscal year 2025 2024 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2025 2024 Annual Meeting”). The Company represents that as of the Effective Date it has received and accepted the previously submitted notices of resignation of two (2) incumbent directors of the Company.
2 (b) As promptly as practicable following execution of this Agreement, the Board, and all applicable committees of the Board, shall direct the Board’s Nominations and Corporate Governance Committee (the “NCG Committee”) to conduct a search for a gender diverse director to appoint as a new director to the Board (the “Additional Director”). The Additional Director shall be mutually agreed upon by the incumbent directors and the GP Directors; provided, however, that neither Party’s consent or agreement shall be unreasonably withheld, conditioned or delayed.
(c) Xxxxx to the appointment of the Additional Director, the Board, and all applicable committees of the Board, shall take all necessary actions to increase and fix the authorized maximum size of the Board to eight (8) directors (the “Board Size”), and
(ii) promptly thereafter appoint the Additional Director to the Board to fill the resulting vacancy, with such appointment taking place no later than December 31, 2024, or such later date as agreed by the Parties in writing.
(i) The Board, and all applicable committees of the Board, shall take all necessary actions to nominate and recommend the New GP Directors and the Additional Director (if then appointed) as a candidate candidates for election to the Board at each of the 2025 2024 Annual Meeting, the Company’s fiscal year 2026 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2026 Annual Meeting”) and any other meeting of the Company’s stockholders held prior to the Termination Date (as defined below) at which directors are to be elected (an “Election Meeting”), and the Company agrees to recommend, support and solicit proxies for the election of the New GP Directors and the Additional Director (if then appointed) at each of the 2025 Annual Meeting, the 2026 2024 Annual Meeting and any Election Meeting, in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees.
(ii) As a condition to the Company’s obligation to appoint the New Director and nominate the New Director GP Directors for election at each of the 2025 2024 Annual Meeting, the 2026 Annual Meeting and any Election Meeting, the New each GP Director shall (A) be required to provide information required to be or customarily disclosed by directors or director candidates in proxy statements or other filings under applicable law or stock exchange regulations, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and a fully completed and executed copy of the Company’s director candidate questionnaire (substantially in the form completed by the Company’s incumbent non-management directors), in each case, on the same basis as the Company’s incumbent non-management directors, promptly as practicable to enable the timely filing of the Company’s proxy statement and other periodic reports with the Securities and Exchange Commission (the “SEC”); (B) consent to and participate in an appropriate background check comparable to those undergone by other non-management directors of the Company; (C) have complied at all times with the Company Policies (as defined below) after he has been appointed to the Board; (D) participate in an interview by, and receive a favorable recommendation from, the NCG Committee (with such favorable recommendation not to be unreasonably withheld, conditioned or delayed); (E) to the extent the members of the Board request, meet with all requesting members of the Board not then serving on the NCG Committee; (F) consent to being named by the Company as a nominee for election to the Board in any applicable proxy statement, proxy card or other solicitation materials of the Company in connection with the 2024 Annual Meeting; and (G) agree, if elected to the Board, to act in the capacity of a director of the Company and to serve the full term as a director.
(b) The Company agrees that (i) the Board will neither nominate nor recommend that the stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxx, Xxxxxxx X. Xxxxx, Xxxxxxx Xxxxxx, Xxxxxx X. Xxxxx, and Xxxxx Xxxxx at the 2025 Annual Meeting, (ii) the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Beindorff, Fife, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2026 Annual Meeting and (iii) unless there is a vacancy on During the Board at the time the Board approves its slate term of director candidates for the Company’s fiscal year 2027 annual meeting of stockholders (including any adjournments or postponements thereof and any meetings which may be called in lieu thereof, the “2027 Annual Meeting”)this Agreement, the Board will neither nominate nor recommend that stockholders of the Company vote to elect any incumbent directors serving on the Board as of the Effective Date other than Messrs. Xxxx, Xxxxx and Xxxxx and Xx. Xxxxxx at the 2027 Annual Meeting; provided, however, that the foregoing shall not limit the Board’s right to nominate or recommend any non-incumbent director to fill any vacancy pursuant to Article FIFTH, Section B of the Certificate of Incorporation subject to the terms and conditions of Section 1(c) below.
(c) The Company agrees that (i) from the Effective Date until the commencement of the 2026 Annual Meeting, otherwise increase the size of the Board shall be no greater thanabove eight (8) directors.
(d) Each Party acknowledges that the New DirectorGP Directors, upon appointment to the Board, shall be governed by all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all members of the Board, including, but not limited to, the Company’s Corporate Governance Guidelines, Code of Business Conduct and Ethics, Board Conflicts of Interest Policy, Xxxxxxx Xxxxxxx Policy and any other policies regarding stock ownership, public disclosures, legal compliance and confidentiality (collectively, the “Company Policies”), and will be required to strictly adhere to the Company’s policies on confidentiality imposed on all members of the Board on the same basis as other members of the Board. The Company agrees that, upon appointment to the Board, the New Director shall receive (i) the same benefits of director and officer insurance as all other non-management directors on the Board, (ii) the same compensation for his service as a director as the compensation received by other non-management directors on the Board and (iii) such other benefits on the same basis as all other non-management directors on the Board.,
(e) IfAs promptly as practicable following execution of this Agreement, from the Effective Date Board shall take all necessary actions to establish a committee dedicated to the evaluation, consideration and analysis of the Company’s business strategy and capital allocation policies and decision making concerning the foregoing (such committee, the “Strategy and Capital Allocation Committee”). Until the Termination Date, the Strategy and Capital Allocation Committee shall be comprised of no more than four (4) directors and shall initially include each of the GP Directors, and two incumbent tenured directors; provided that each GP Director shall remain on the Strategy and Capital Allocation Committee during the term of this Agreement.
(f) As promptly as practicable following execution of this Agreement, the Board shall take all necessary actions to appoint one GP Director to each of the Compensation Committee of the Board and the NCG Committee, which shall each, until the Termination Date, be comprised of no more than three (3) directors.
(g) If, at any time prior to the New Director Termination Date, either of the GP Directors (or any Replacement Director (as defined below)) designated by the GP Parties is unable or unwilling to serve as a director, resigns as a director, is removed as a director or otherwise and ceases to be a director for any other reasondirector, then the Stockholder GP Parties and shall have the right to propose to the Company shall mutually agree upon a replacement director (a “ReplacementReplacement Director”) to fill such vacancy created by the departing New Director (or any Replacement) being replaced (the “Former Director”). Any Replacement(s) identified pursuant to this Section 1(e) shall qualify with relevant financial and business experience, who qualifies as “independent” pursuant to The Nasdaq Stock Market LLCNasdaq’s listing standards (or applicable requirement of such other national securities exchange designated as the primary market on which the Common Stock is listed for trading) and ), the SEC rules and regulations, and such whose qualifications are substantially similar to the GP Director (or any Replacement Director) being replaced (the “Former Director”); provided that the GP Parties’ right to propose a Replacement Director pursuant to this Section 1(h) shall terminate when the GP Parties cease to beneficially own, in the aggregate, the Minimum Ownership Threshold (as defined below). Any candidate for Replacement Director shall be expeditiously appointed to the Board, subject to the recommendation (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee reasonable approval of the Board, after conducting a good faith customary due diligence process and consistent with its fiduciary dutieswhich approval shall not be unreasonably withheld, conditioned or delayed. Any Replacement(s) Replacement Director appointed to the Board in accordance with this Section 1(e1(h) shall be appointed to any applicable committees committee of the Board of on which the Former Director was a member served immediately prior to such Replacement’s appointmentthe termination of his or her service on the Board. Any rights or obligations of In the event the Board and or the Stockholder NCG Committee determines in good faith not to approve any Replacement Director proposed by the GP Parties, the GP Parties as provided shall have the right to propose additional Replacement Directors in accordance with this Section 1(e1(h) shall terminate when until a Replacement Director is appointed to the Stockholder Parties in the aggregate cease to beneficially own at least the lesser of (A) 5.0% of the Company’s then outstanding Common Stock (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments) and (B) 643,423 shares of Common StockBoard. All references to the “New GP Director,” for purposes of this Agreement, shall be deemed references to the Replacement person who replaces the Former applicable GP Director or any succeeding Replacement Director consistent with this Section 1(h), in the event that a Replacement Director is appointed.
(h) The GP Parties acknowledge and agree that each of the GP Directors shall immediately tender his or her resignation from the Board (it being understood that the Board shall have the right to decline to accept such resignation) if the GP Parties cease to beneficially own, in the aggregate, the Minimum Ownership Threshold. Until Following the Termination Date, any Replacement designated effectiveness of the resignation of the GP Directors pursuant to this Section 1(e) replacing the New Director prior to the mailing of 1(i), the Company’s definitive proxy statement for obligations under this Section 1 shall terminate.
(i) As promptly as practicable following the Company’s execution of this Agreement, the Board shall take all necessary actions to separate the roles of Chief Executive Officer and Chairman and in connection with such separation, dissolve the position of Lead Independent Director.
(j) As promptly as practicable following the execution of this Agreement, the Board shall take all necessary actions to authorize and approve an increase to the share repurchase program, which was previously announced on June 28, 2024, to permit the continued repurchase of up to $10,000,000 worth of Common Stock; provided, however, that any purchases made under such programs shall be subject to market conditions, applicable annual meeting legal requirements, including, but not limited to, Sections 78.411 – 78.444 of stockholders shall stand for election at such meeting together with the Company’s General Corporation Law of Nevada, and other director nomineesrelevant factors, as determined by the Board in its sole discretion.
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