Board Composition and Related Matters. (a) Effective upon the execution and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A. (b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board (the “First Independent Designee”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board. (c) Between the execution and delivery of this Agreement and the earlier of (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions. (d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees for election to the Board in its proxy statement and proxy card, (ii) recommend to the shareholders of the Company the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of the New Directors to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other director nominees. (e) At the first regular meeting of the Board following the appointment of all of the New Directors, the Board shall take the necessary steps to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded. (f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors. (g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee. (h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board. (i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing. (j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B.
Appears in 1 contract
Samples: Cooperation Agreement (Argo Group International Holdings, Ltd.)
Board Composition and Related Matters. (a) Effective upon as of the execution and delivery of this Agreement, Voce has terminated Investor, on behalf of itself and its Affiliates (as defined in Section 16), hereby agrees that it shall not, and that it and any of its Affiliates shall not (and shall use reasonable best efforts to cause its Associates (as defined in Section 16) not to), (i) nominate or recommend for nomination any person for election at the Consent Solicitation and Proxy Solicitation and withdrawn 2018 Annual Meeting, directly or indirectly; (ii) submit any proposal for consideration at, or bring any other business before, the Requisition Notice and 2018 Annual Meeting, directly or indirectly; (iii) initiate, encourage or participate in any “withhold” or similar campaign with respect to the 2018 Annual Meeting, directly or indirectly; or (iv) publicly or privately encourage or support any other stockholder to take, or support in the taking of, any of the actions or matters described in this Section 1(a). Effective as of the execution of this Agreement, Investor hereby irrevocably withdraws the Notice of Proposals and Stockholder Nominations of Individuals for Election as Directors at the 2018 Annual Meeting of Stockholders of Resolute Energy Corporation submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A.on February 8, 2018.
(b) As soon Effective as reasonably practicable after January 1of the execution of this Agreement, 2020in accordance with the Company’s Certificate of Incorporation and applicable Delaware law, subject and pursuant to the fulfillment amended and restated by-laws of the conditions set forth Company, (i) the Board shall be increased in size to eleven (11) members (from eight (8) members), (ii) each of Xxxxxx Xxxxxxxxxx (Xx. Xxxxxxxxxx, or any replacement appointed under Section 1(f) 2 of this Agreement, the Board “Monarch Designee”), Xxxxxx X. Xxxxxx, Xx. and Xxxxxx X. Xxxxxxx shall appoint Xxxxx X. XxXxxx be appointed to the Board to fill the resulting vacancies from the increase of the size of the Board, with Xx. Xxxxxxxxxx being appointed to the class of directors whose term expires at the 2019 annual meeting of stockholders (the “First Independent Designee2019 Annual Meeting”), and with Messrs. Xxxxxx and Xxxxxxx being appointed to the class of directors whose term expires at the 2020 annual meeting of stockholders (the “2020 Annual Meeting”), (iii) the Board shall nominate Xxxxxxxx X. Xxxxxx, Xxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxx (collectively, the “2018 Board Nominees”) as directors for election to fill the vacancy resulting from Board at the upcoming retirement 2018 Annual Meeting, (iv) the Company shall recommend, support and solicit proxies at the 2018 Annual Meeting for the re-election of Xxxx X. Xxxxxx from the Board2018 Board Nominees, (v) the Board shall not knowingly take any action to, or knowingly support any person or committee who is seeking to, increase the size of the Board above eleven (11) directors at any time prior to the Expiration Date without approval of the Monarch Designee, (vi) the Board shall not change the classes on which the directors or, if applicable, their replacements serve (except pursuant to the Declassification Amendment (as defined below) set forth herein) without approval of the Monarch Designee and (vii) the Company shall use its reasonable best efforts to hold the 2018 Annual Meeting no later than June 20, 2018.
(c) Between Each of the execution Company and delivery of this Agreement Investor agrees and acknowledges that the earlier of Monarch Designee (i) shall be required to, for so long as the filing Monarch Designee serves on the Board, comply with (and shall also be entitled to all rights and benefits under) all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-executive members of the SEC Board (including, without limitation, as to confidentiality) as may be in effect from time to time (collectively, the “Company Policies”) and that are not discriminately targeted towards, or selectively enforced against, the Monarch Designee, copies of the current versions of which have been provided to the Monarch Designee, (ii) shall have the same rights and benefits, including with respect to insurance, indemnification (including indemnification agreements), exculpation, compensation and fees, as are applicable to all non-executive directors of the Company, and (iii) has completed the Company’s definitive proxy statement for standard director and officer questionnaire and other reasonable and customary director onboarding documentation required to be completed by the 2020 annual general meeting Company’s other non-management directors in connection with the election of shareholders Board members. The Company confirms that, as of the Company date hereof, based upon the information provided to Board pursuant to clause (iii) of the “2020 Annual General Meeting”) and (ii) February 14immediately preceding sentence, 2020, (A) the Board shall select an additional Independent is not aware of any conflict of interest that would render Xx. Xxxxxxxxxx ineligible, under the Company’s conflict of interest policy contained in its Code of Business Conduct and Ethics (or any other conflict of interest policy) to serve as a director of the Company. The Parties agree and acknowledge that any share ownership requirement imposed upon the Monarch Designee under the Director from a list and Officer Share Ownership Guidelines (or other Company Policy) may be satisfied by ownership of three director candidates to be provided shares by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Monarch Designee, the “Independent Designees”) and (B) Voce shall select by Investor or an additional Independent Director as director candidate from a list Affiliate of three to five director candidates to be provided Investor or by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditionscombination thereof.
(d) Subject Provided that the obligations in Section 1(e) are in full force and effect, Investor agrees to appear in person or by proxy at the fulfillment 2018 Annual Meeting and to vote, or cause to be voted, (x) all shares of the conditions set forth in Section 1(fCompany’s common stock, par value $0.0001 per share (the “Common Stock”), beneficially owned by Investor or its Affiliates as of May 7, 2018, which the Company shallBoard has set, with respect and agrees to use its reasonable best efforts to keep, as the 2020 record date for the determination of stockholders entitled to receive notice of and to vote at the 2018 Annual General Meeting (the “Record Date”) and (y) all other shares of the Common Stock over which Investor has voting power at the 2018 Annual Meeting (i) include in favor of the New Directors Declassification Amendment (as nominees for election to the Board in its proxy statement and proxy carddefined below), (ii) recommend to the shareholders in favor of the Company the election of the New Directors to the Board2018 Board Nominees, and (iii) solicit proxies in favor of the Company’s “say on pay” proposal with regard to compensation paid to the Company’s Named Executive Officers; and (iv) in favor of the ratification of the Company’s appointment of KPMG LLP as its independent registered public accounting firm for the 2018 fiscal year.
(e) From the date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this Section 1(e) terminate as provided herein, Investor agrees that, unless consented to by the Company or permitted by this Agreement, neither it nor any of its Affiliates will (and it shall use reasonable best efforts to cause its Associates not to), directly or indirectly, in any manner (whether through third parties or otherwise), other than, in each of clauses (i) – (v), in support of and in favor of the election of all of the New Directors 2018 Board Nominees and the other matters referred to in this Section 1(e):
(i) solicit proxies or written consents of stockholders or conduct any other type of referendum (binding or non-binding) with respect to, or from the holders of, the Common Stock, or become a “participant” (as such term is defined in Instruction 3 to Item 4 of Schedule 14A promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in or assist any person not a Party to this Agreement (other than Affiliates or Associates of Investor who are subject to the Board restrictions of this Agreement) in any “solicitation” of any proxy, consent or other authority (as such terms are defined under the Exchange Act) to vote any shares of the Common Stock (other than such encouragement, advice or influence that is consistent with Company management’s recommendation in connection with such matter);
(ii) advise, encourage, support or influence any person with respect to the voting of any securities of the Company at the 2018 Annual Meeting, 2019 Annual Meeting or any special meeting of stockholders, or seek to do so (other than such encouragement, advice or influence that is consistent with the Company’s recommendation in connection with such matter);
(iii) seek or encourage any person to submit nominations in furtherance of a “contested solicitation” for the election or removal of directors with respect to the Company or seek, encourage or take any other action with respect to the election or removal of any directors or with respect to the submission of any stockholder proposal;
(iv) other than as provided in this Agreement, seek, alone or in concert with others, representation on the Board; and
(v) seek or request permission to do any of the foregoing, make any request to amend, waive or terminate any provision of this Section 1 (including, without limitation, this Section 1(e)), or make or seek permission to make any public announcement with respect to any of the foregoing; provided that Investor may make a confidential request to the Chairman or to the Chief Executive Officer that the Company amend or waive the terms of this Agreement in a manner no less rigorous and favorable than the manner in which that would not be reasonably likely to require public disclosure by the Company supports its other director nominees.
(eor Investor; provided that the restrictions in this Section 1(e) At shall terminate automatically upon the first regular meeting earliest of the Board following the appointment of all of the New Directors, the Board shall take the necessary steps to appoint (i) upon five (5) Business days’ prior written notice delivered by Investor to the First Independent Company (x) a failure to appoint the Monarch Designee in accordance with Section 1, (y) a failure to appoint a Replacement Designee (as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Boarddefined below) if, as selected and when required by Section 2 or (z) a material breach by the BoardCompany of its obligations in Section 1(b)(v) or (vi)), and but, in each of cases (x), (y) or (z), only if such failure or breach has not been cured within such notice period, (ii) the Second Independent Designee such time as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company issues a preliminary proxy statement, definitive proxy statement or other public communication in connection with the 2018 Annual Meeting that materially misstates the terms of this Agreement in a manner that is tradedmaterially adverse to Investor and is not cured within five (5) Business days or (iii) the Expiration Date.
(f) As a condition Subject to the appointment of the First Independent Designee foregoing, prior to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General MeetingTermination Date, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree Party agrees that the Board or neither it nor any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting Affiliates will (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce it shall use their respective reasonable best efforts to keep cause its Associates not to) act, alone or in concert with others, to make or cause to be made (1) any disparaging public statement, (2) any disparaging statement that would reasonably be expected to enter the other apprised of the status of public domain (including: (A) in any communications with, and any inquiries document or requests for additional information from, any insurance regulators in connection report filed with the foregoing.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered or furnished to the Company Securities and Exchange Commission (the Director Letter “SEC”) or any other governmental agency, (B) in the form attached hereto as Exhibit B.any press release or other publicly available format, or
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon the execution and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted The Parties shall take all necessary actions to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, reconstitute the Board shall appoint Xxxxx X. XxXxxx to the Board as follows (the “First Independent DesigneeReconstituted Board”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of ): (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and Jxxx Xxxxx, (ii) February 14Bxxxxx Xxxxxxx, 2020(iii) Hxxx Xxxxxxxxxx, and (iv) Dxxxx Xxxxxxx (the persons in (i) through (iv) collectively, the “Incumbent Designees”), and (v) Bxxxx Xxxxxxxxx, (vi) Bxxx Xxxxxxx, and (vii) Axx Xxxxxxxx (the persons in (v) through (vii) collectively, the “LX-XX Designees”). In furtherance of the foregoing, but not limited thereto, as soon as possible on or following the date hereof (but in no event later than July 8, 2016), (A) the incumbent Board shall select an additional Independent Director from a list of three cumulate its votes for the director candidates to be provided by Voce to elections at the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 2016 Annual General Meeting (i) include the New Directors as nominees for election to the Board in its proxy statement and proxy card, (ii) recommend to the shareholders of the Company the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of Jxxx Xxxxx, Bxxxxx Xxxxxxx, Hxxx Xxxxxxxxxx and Dxxxx Xxxxxxx; (B) the New Directors LX-XX Group shall cumulate its votes for the director elections at the 2016 Annual Meeting in favor of the election of Bxxxx Xxxxxxxxx, Bxxx Xxxxxxx and Mxxxxxx Goose; and (C) Mxxxxxx Goose hereby resigns from the Board, effective automatically immediately following his election to the Board, and the Board shall fill such vacancy by appointing Axx Xxxxxxxx.
(b) Until the Termination Date, the Board shall (i) nominate the LX-XX Designees for election to the Board at each Shareholder Meeting or in a manner no less rigorous and favorable than the manner in respect of any solicitation of written consents of shareholders at which directors are to be elected; (ii) cause the Company supports its other to file a definitive proxy statement or definitive consent statement in respect of each Shareholder Meeting or solicitation of written consents of shareholders at which directors are to be elected and recommend that the Company's shareholders vote or consent directly or by proxy in favor of, and otherwise use reasonable best efforts to cause, the election of all LX-XX Designees; and (iii) cause the Company to file a definitive consent revocation statement in respect of any solicitation of written consents of shareholders to remove any of the LX-XX Designees and recommend that the Company’s shareholders do not sign consents to remove any of the LX-XX Designees and use reasonable best efforts to cause the revocation of any such consents.
(c) The size of the Board shall be fixed at no more than seven directors until the end of the Commitment Period; provided, however, that the Board shall in good faith consider adding, but shall not be obliged to add, a possible eighth director nomineesin connection with the 2017 Annual Meeting of Shareholders and a possible ninth director in connection with the 2018 Annual Meeting of Shareholders.
(d) The Reconstituted Board shall appoint Bxxxx Xxxxxxxxx as Chairman of the Board.
(e) At the first regular meeting of the Board following the appointment of all of the New Directors, the The Reconstituted Board shall take the necessary steps to appoint (i) Dxxxx Xxxxxxx as Chairman of the First Independent Designee Audit Committee, (ii) Bxxx Xxxxxxx as a member Chairman of the Compensation Committee, and (iii) Hxxx Xxxxxxxxxx (or another Incumbent Designee) and Bxxxx Xxxxxxxxx as Co-Chairmen of the Nominating and Corporate Governance Committee Committee. The Board shall appoint Bxxxx Xxxxxxxxx, Axx Xxxxxxxx, Hxxx X. Xxxxxxxxxx and at least one additional committee Dxxxx Xxxxxxx as members of the Board, as selected by the Board, Nominating and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is tradedGovernance Committee.
(f) As a condition to The Reconstituted Board shall review director compensation with the appointment intent of the First Independent Designee to modifying total cash compensation for the Board and the inclusion of the Second Independent Designee in line with industry best practices for comparable companies in consultation with the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directorsoutside compensation consultant.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B.
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon Blackwells hereby (i) irrevocably withdraws, with this Agreement constituting sufficient and conclusive evidence of such withdrawal, the execution Nomination Notice as well as Bxxxxxxxxx’ director nominations and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and any related materials or notices submitted to the Company an executed letter in connection therewith or related thereto with respect to that effect the 2024 Annual Meeting (collectively, the “Blackwells Shareholder Matters”), and (ii) agrees to abstain from taking further action to pursue the Blackwells Shareholder Matters or any other action related to the 2024 Annual Meeting (other than in the form attached hereto as Exhibit A.accordance with this Agreement.)
(b) As soon as reasonably practicable after January 1, 2020, subject to Simultaneously with the fulfillment of the conditions set forth in Section 1(f) execution of this Agreement, the Board Company shall take all necessary actions to appoint Xxxxx X. XxXxxx Jxxxxxx Xxxxxxx Xxxxxxxx to the Board (as a director, with a term expiring at the “First Independent Designee”) 2024 Annual Meeting or until his earlier death, disability, resignation, disqualification, or removal. The Company shall take all necessary actions to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”)nominate Mx. If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees Xxxxxxxx for election to the Board at the 2024 Annual Meeting, (ii) include Mx. Xxxxxxxx in its the Company’s proxy statement and proxy cardcard for the 2024 Annual Meeting, (ii) recommend to the shareholders of the Company the election of the New Directors to the Board, and (iii) solicit proxies in favor of for the election of Mx. Xxxxxxxx in respect of the New Directors to the Board 2024 Annual Meeting in a manner no less rigorous and favorable than the manner in which it solicits proxies for the Company election of the Company’s other director nominees, and (iv) support and recommend for the election of Mx. Xxxxxxxx in respect of the 2024 Annual Meeting in the same manner as it supports its and recommends for the election of the Company’s other director nominees.
(e) At the first regular meeting of the Board following the appointment of all of the New Directors, the Board shall take the necessary steps to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B.
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon the appointment of the FK/MP/OT Group Designee to the Board as provided in Section 1(b) below, the FK/MP/OT Group hereby irrevocably withdraws, with this Agreement constituting sufficient and conclusive evidence of such withdrawal, the FK/MP/OT Group’s Nomination Notice, Supplemental Letters and nomination of eight candidates for election to the Board at the 2024 Annual Meeting.
(b) The Board shall take all necessary actions (i) to appoint Xxxxxxx Xxxxxxxxxxx (the “FK/MP/OT Group Designee”) to the Board, with such appointment to take effect no later than three (3) business days following execution and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board (the “First Independent Designee”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 2024 Annual General Meeting Meeting, to (iA) include nominate the New Directors as nominees FK/MP/OT Group Designee to the Board for election to the Board in its the Company’s proxy statement and proxy card, (iiB) recommend to the shareholders stockholders of the Company the election of the New Directors FK/MP/OT Group Designee to the Board, Board and (iiiC) solicit proxies in favor of the election of the New Directors FK/MP/OT Group Designee to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees.
(c) As a condition to his appointment to the Board, the FK/MP/OT Group Designee shall have provided the Company with (i) a completed director nomineesquestionnaire in the form provided to all directors of the Company and (ii) information and certifications currently required of all directors pursuant to the Company’s Restated Certificate of Incorporation (as amended from time to time, the “Certificate of Incorporation”), the Company’s Third Amended and Restated By-Laws (as amended from time to time, the “By-Laws”), and the Company’s publicly disclosed committee charters, corporate governance guidelines and similar publicly disclosed governance documents (collectively with the Certificate of Incorporation and By-Laws, the “Governance Documents”).
(d) The Board’s nomination of directors for election as directors at the 2024 Annual Meeting will not include two directors who are serving on the Board as of the date of this Agreement.
(e) At The Company and Mr. Porcelain shall cooperate in good faith to identify and agree upon an additional director candidate to be appointed to the first regular meeting Board (the “Additional Director”). The FK/MP/OT Group Designee and the Additional Director (together with any Replacement Director(s) appointed in accordance with Section 1(j) below) shall be referred to herein as the “New Directors,” and each individually as a “New Director.” Mr. Porcelain shall provide the Company with proposed director candidate(s) (which may include candidates nominated by the FK/MP/OT Group), and the Company shall provide the FK/MP/OT Group with proposed director candidate(s) (which may include candidates previously nominated by the FK/MP/OT Group). Each party shall have the ability to interview the persons identified by the other party. The Additional Director will be selected from these lists based on the mutual agreement of the Board following Company and the appointment of all of FK/MP/OT Group (which discussions shall be conducted reasonably and in good faith). To the New Directorsextent the Company and the FK/MP/OT Group cannot agree on the Additional Director candidate, the parties shall continue to follow the procedures of this Section 1(e) until a candidate mutually agreed upon by the parties is appointed to the Board as the Additional Director. The Board shall take appoint the necessary steps Additional Director to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is tradedand SEC rules.
(f) As a condition to the appointment of the First Independent Designee to the Board The FK/MP/OT Group acknowledges and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to agrees that: (i) obtain regulatory approval for consistent with their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named fiduciary duties as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms directors of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may each New Director shall be further amended from time obligated to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines recuse himself or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees herself from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest between the FK/MP/OT Group or any New Director, on the one hand, and the Company, on the other hand; (ii) the Board may restrict a New Director’s access to information of such Independent Designeethe Company to the same extent it would for any other director of the Company, in accordance with applicable law and policies of the Board; (iii) the New Directors shall be governed by, and comply with, the same obligations regarding conflicts of interest, fiduciary duties, confidentiality, trading and disclosure policies and other governance guidelines as are applicable to all other directors of the Company.
(hg) Voce represents and warrants that there are, and covenants The FK/MP/OT Group agrees that there shall be, be no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce the FK/MP/OT Group (or any of its members) and the Independent Designees any New Director providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees New Director in connection with or related to the Independent Designees’ New Director’s service on the Board.
(ih) As promptly as practicableThe FK/MP/OT Group acknowledges and agrees that, the Company shall file with the appropriate insurance regulators for approval of the upon appointment and/or or election to the Board of the Independent DesigneesBoard, each New Director shall receive a secured Company email address and shall be required to use such secured address for all Company communications. The Company shall provide any necessary computer and/or device necessary for each New Director on the same terms as the Company provides to other independent directors.
(i) Concurrently with Xx. Xxxxxxxxxxx’x appointment to the Board, the Board shall take the necessary steps to appoint and Voce shall promptly prepare seat Xx. Xxxxxxxxxxx on both the Audit and file with Nominating and Governance Committees of the appropriate insurance regulators such additional requestsBoard. The Company agrees to appoint a New Director to any new committee of the Board formed by the Board prior to the Termination Date, reports or notifications as including any committee that may be required established in connection with such approvalreviewing any Extraordinary Transaction, subject to applicable stock exchange and SEC rules, and except where service of a New Director on any such committee would give rise to actual or potential conflicts of interest. Additional committee appointments for each New Director, if any, shall cooperate fully with each other be determined by the Board in connection good faith, in accordance with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications withBoard’s customary governance processes, and the Board shall give each New Director the same due consideration for committee membership as any inquiries or requests for additional information from, any insurance regulators in connection other independent director with the foregoingsimilar expertise and qualifications.
(j) Simultaneous Until the Termination Date and as long as the FK/MP/OT Group’s Net Long Position does not fall below 5.0% of the outstanding shares of Common Stock, subject to adjustment for stock splits, reclassifications combinations and similar adjustments, as a result of a disposition of shares by any of its members, if the FK/MP/OT Group Designee or the Additional Director (solely in the event the Additional Director is a candidate previously nominated by the FK/MP/OT Group) 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 as a director, Mr. Porcelain shall, in consultation with the execution and delivery of this AgreementCompany, have the ability to recommend to the Board a replacement director (any such replacement director, once appointed to the Board, the First Independent Designee has executed and delivered “Replacement Director”). A proposed Replacement Director must (i) qualify as “independent” of the Company pursuant to the listing standards of any stock exchange on which the Company is then traded, (ii) have the relevant financial and business experience to be a director of the Company, (iii) be independent of the FK/MP/OT Group, and (iv) be approved by the Board, provided that the proposed Replacement Director Letter shall cooperate with the Board and provide all reasonably requested information on a timely basis. In the event the Board does not approve a person recommended by Mr. Porcelain as the Replacement Director, Mr. Porcelain shall, in consultation with the form attached hereto Company, have the right to recommend to the Board another Replacement Director.
(k) The Company agrees and acknowledges that each New Director shall have the same rights and benefits, including with respect to insurance, indemnification, compensation and fees, as Exhibit B.are applicable to all non-management directors of the Company.
(l) The FK/MP/OT Group acknowledges and agrees that the rights of the FK/MP/OT Group and the obligations of the Company pursuant to this Section 1 shall terminate immediately upon the occurrence of the Termination Date.
Appears in 1 contract
Samples: Cooperation Agreement (Comtech Telecommunications Corp /De/)
Board Composition and Related Matters. (a) Effective upon Simultaneous with the execution and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Investor Group hereby irrevocably withdraws its Nomination Notice and Notice of Proposals and any related materials, demands or notices submitted to the Company in connection therewith, and the Investor Group hereby further agrees that all votes on any proxies that have been or may be received by or on behalf of the Investor Group for the election of Rxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx and/or Pxxxxxxx X. Xxxxxxxx at the 2020 Annual Meeting will be disregarded, and withdraws and terminates all requests for stock list materials and other books and records of the Company under the General Corporation Law of the State of Delaware (the “DGCL”) or other statutory or regulatory provisions providing for shareholder access to books and records.
(b) Simultaneous with the execution and delivery of this Agreement, the Investor Group, Rxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx and Pxxxxxxx X. Xxxxxxxx have each executed and delivered to the Company an executed irrevocable letter of withdrawal of the candidacy of Rxxxxxxxxxx Xxxxxx Xxxxxxxxxxxx and Pxxxxxxx X. Xxxxxxxx (the “Investor Group Designee”) for election to that effect the Board at the 2020 Annual Meeting in the form attached hereto as Exhibit A.A (the “Withdrawal Letter”).
(bc) As soon as reasonably practicable after January 1Simultaneous with the execution and delivery of this Agreement, 2020the Investor Group shall immediately cease all efforts, subject direct or indirect, in furtherance of the Nomination Notice and any related solicitation in connection with the Nomination Notice, including any negative solicitation efforts relating to the fulfillment 2020 Annual Meeting concerning the Company and members of the conditions set forth slate of nominees proposed by the Company, namely Al-Nxxx Xxxxx and Jxxxxx X. Xxxxx (the “Company Nominees”), and terminate the Investor Group’s proxy solicitation website, hxxxx://xxx.xxxxxxxxxxxxxx.xxx, and any similar websites and social media posts.
(d) Simultaneous with the execution and delivery of this Agreement, the Investor Group has executed and delivered to the Company a voting agreement in Section 1(fthe form attached hereto as Exhibit B (the “Voting Agreement”).
(e) Immediately following the execution and delivery of this Agreement, the Board shall increase the size of the Board to ten directors and appoint Xxxxx X. XxXxxx the Investor Group Designee as a Class I director to the Board (the “First Independent Designee”) to fill the vacancy resulting from the upcoming retirement increase in the size of Xxxx X. Xxxxxx from the Board.
(cf) Between The Investor Group agrees that, in the execution and delivery of this Agreement and the earlier of (i) the filing with the SEC Investor Group Designee’s capacity as a director of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision Investor Group Designee shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees for election to the Board in its proxy statement and proxy card, (ii) recommend to the shareholders of the Company the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of the New Directors to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other director nominees.
(e) At the first regular meeting of the Board following the appointment of all of the New Directors, the Board shall take the necessary steps to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum Certificate of Association, dated May 28, 1999 Incorporation (as amended and as may be further amended from time to time, the “Memorandum of AssociationCharter”), the Company’s Amended and Restated ByeBy-Laws, dated March 5, 2010 Laws (as amended and as may be further amended from time to time, the “ByeBy-Laws”), committee charters, corporate governance governance, ethics, conflict of interest, confidentiality, stock ownership and trading policies and guidelines or and similar governance documents that are generally applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its Company’s directors.
(g) Voce The Investor Group acknowledges and each agrees that: (A) consistent with her fiduciary duties as a director of the Independent Designees agree that Company, the Board or Investor Group Designee is obligated to consider in good faith, to the same extent as any committee thereofother director of the Company, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees recusal from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an any other actual or potential conflict of interest involving the Investor Group Designee with respect to any matter before the Board; and (B) the Board may restrict the Investor Group Designee’s access to information of such Independent Designeethe Company to the same extent it would for any other director of the Company, in accordance with applicable law.
(h) Voce represents and warrants that there areOther than as agreed to by the Company, and covenants the Investor Group agrees that there shall be, be no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement Agreement, between Voce any members of the Investor Group and the Independent Designees Investor Group Designee providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees Investor Group Designee solely in connection with or related to the Independent Designees’ Investor Group Designee’s service on the Board, provided that the Investor Group can fulfill any obligations owed to the Investor Group Designee pursuant to agreements disclosed to the Company prior to the date hereof.
(i) As promptly long as practicable, the Net Long Position of the Investor Group and its Affiliates exceeds 5% of the outstanding common stock of the Company (the “Common Stock”) , in the event that the Investor Group Designee (or any Replacement Designee for her) is no longer able to serve as a director of the Company due to death, disability or other incapacity or for any other reason, then the members of the Investor Group shall file be entitled to designate, subject to the approval (not to be unreasonably withheld) of the Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”), a candidate for replacement of the Investor Group Designee (such replacement, a “Replacement Designee”). Any Replacement Designee shall qualify as an Independent Director. The Nominating Committee shall, in good faith and consistent with its fiduciary duties, approve or deny any candidate for Replacement Designee within 10 Business Days after such candidate has: (i) successfully completed a customary background check; (ii) completed a satisfactory interview with the appropriate insurance regulators for approval Nominating Committee; (iii) provided the Company with (A) a completed director questionnaire (in the form to be provided by the Company), and (B) such other information and agreements as may be reasonably requested by the Company and that are part of its customary director onboarding practices and (iv) agreed to take all necessary action not be considered to be “overboarded” under the applicable policies of Institutional Shareholder Services, Inc. (“ISS”), Glass Lewis & Co., LLC (“Glass Lewis”), BlackRock, Inc., The Vanguard Group, and/or State Street Corporation as a result of his or her or her appointment and/or election to the Board of the Independent DesigneesBoard. The Company agrees that it will proceed promptly and Voce in good faith and consistent with its fiduciary duties and provide or complete the background checks, questionnaires and other items described in the preceding sentence. In the event the Nominating Committee declines to approve a candidate for Replacement Designee, (x) any agreements provided by such candidate pursuant to the previous sentence shall be null and void and of no effect and (y) the members of the Investor Group may propose one or more additional candidates, subject to the approval process described above, until a Replacement Designee is approved by the Nominating Committee. Following the approval of a candidate for Replacement Designee by the Nominating Committee, the Board shall promptly prepare and file with appoint such Replacement Designee to the appropriate insurance regulators Board. Upon his or her or her appointment to the Board, such additional requests, reports or notifications as may Replacement Designee shall be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests deemed an Investor Group Designee for additional information from, any insurance regulators in connection with the foregoing.
(j) Simultaneous with the execution and delivery of all purposes under this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B..
Appears in 1 contract
Samples: Settlement Agreement (Virtusa Corp)
Board Composition and Related Matters. (a) Effective upon the execution and delivery The Board agrees to elect each of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
Xxxxx Xxxxxxx (b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreementsuch person, the Board shall appoint Xxxxx X. XxXxxx to the Board Director Designee”) and Xxxxxxx Xxxxxxx (such persons, the “First Independent DesigneeDirector Designees”) to fill vacancies on the vacancy resulting Board arising from the upcoming retirement Resignations The Company shall recommend, support and solicit proxies at the 2019 Annual Meeting of Xxxx X. Xxxxxx from the Company’s Stockholders (including any adjournments or postponements thereof, the “2019 Annual Meeting”) for the re-election of each of Xxxxx Xxxxxxx and Xxxxxxx Xxxxxxx together with three other directors selected by the Board.
(cb) Between Effective as of the execution and delivery of this Agreement Agreement, Investor, on behalf of itself and the earlier its Affiliates (as defined in Section 9), hereby agrees that it shall not, and that it and any of its Affiliates shall not, (i) nominate or recommend for nomination any person for election to the filing Board on or prior to the Expiration Date, directly or indirectly; (ii) initiate or participate in any proposal or “withhold” or similar campaign with the SEC respect to any annual or special meeting of the Company’s definitive proxy statement for stockholders occurring on or prior to the 2020 annual general meeting Expiration Date, directly or indirectly; or (iii) publicly or privately encourage or support any other stockholder to take, or support in the taking of, any of shareholders the actions or matters described in this Section 1(b). Each of the Company and Investor agrees and acknowledges that the Director Designees (i) shall be required to, for so long as such Director Designee serves on the Board, comply with (and shall also be entitled to all rights and benefits under) all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-executive members of the Board including, without limitation, as to confidentiality and trading in the Company’s securities as may be in effect from time to time (collectively, the “Company Policies”) and that are not discriminately targeted towards, or selectively enforced against, such Director Designee, copies of the current versions of which have been provided to the Director Designees; (ii) shall have the same rights and benefits, including with respect to insurance, indemnification (including indemnification agreements), exculpation, compensation and fees, as are applicable to all non-executive directors of the Company; and (iii) has completed the Company’s standard director and officer questionnaire and other reasonable and customary director onboarding documentation required to be completed by the Company’s other non-management directors in connection with the election of Board members.
(c) Investor agrees to appear in person or by proxy at the 2019 Annual Meeting and to vote, or cause to be voted, all shares of the Company’s common stock, par value $0.0001 per share (the “2020 Annual General MeetingCommon Stock”) ), and (ii) February 14, 2020, (A) all other shares of the Board shall select an additional Independent Director from a list of three director candidates Company’s capital stock entitled to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included vote generally in the Notice election of Proposals as director candidate directors (the “Second Independent Designee” and, together collectively with the First Independent DesigneeCommon Stock, the “Independent DesigneesVoting Capital Stock”) and (B) Voce shall select an additional Independent Director ), in each case over which the Investor has voting power as director candidate from a list of three to five director candidates to be provided the record date for the 2019 Annual Meeting for the proposals recommended by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditionsBoard.
(d) Subject From the date of this Agreement until the Expiration Date or until such earlier time as the restrictions in this Section 1(d) terminate as provided herein, Investor agrees to vote the fulfillment Voting Capital Stock, in each case over which the Investor has voting power as of the conditions set forth in Section 1(f)record date for the proposals recommended by the Board. Additionally, the Company shall, with respect to the 2020 Annual General Meeting Investor agrees that it shall not:
(i) include solicit proxies or written consents of stockholders or conduct or participate in any other type of referendum or campaign (binding or non-binding) with respect to, or from the New Directors as nominees for election to holders of, the Board in its proxy statement and proxy cardVoting Capital Stock, other than on matters recommended by the Board.
(ii) recommend to the shareholders of the Company the election of the New Directors to the Boardseek, and (iii) solicit proxies directly or indirectly, other than in favor of the election of the New Directors to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other director nominees.
(e) At the first regular meeting of the Board following the appointment of all of the New Directors, the Board shall take the necessary steps to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange conjunction with his participation on which the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, to manage, direct, manipulate or affect any executive officer of the Company in the exercise performance of his or her powers and/or duties or otherwise, including in the general supervision and management of the business and operations of the Company, the hiring and managing of employees or counsel or accounting, financial, legal or other advisors to the Company; or
(iii) seek or request permission to do any of the foregoing, make any request to amend, waive or terminate any provision of this Section 1 (including, without limitation, this Section 1(d)), or make or seek permission to make any public announcement with respect to any of the foregoing; provided that Investor may make a confidential request to the Chairman or to the Chief Executive Officer that the Company amend or waive the terms of this Agreement in a manner that would not be reasonably likely to require public disclosure by the Company or Investor; provided that the restrictions in this Section 1(d) shall terminate automatically upon the earliest of (i) upon five (5) Business days’ prior written notice delivered by Investor to the Company for (x) the Board’s failure to elect or nominate the Director Designees in accordance with Section 1(a), or (y) a material breach by the Company of its fiduciary dutiesobligations in Section 1(a), but, in each of cases (x) or (y), only if such failure or breach has not been cured within such notice period, or (ii) the Expiration Date.
(e) Subject to the foregoing, prior to the Expiration Date, the Parties and their Affiliates agree to refrain from making any publicly disparaging statements, verbally or in writing. Nothing in Section 1(d) or Section 1(e) shall have (1) prevent the right Parties or any of their respective Affiliates from (w) bringing litigation to exclude enforce the Independent Designees provisions of this Agreement, (x) making counterclaims with respect to any proceeding initiated by, or on behalf of, a Party or its Affiliates against the other Party hereto or its Affiliates, (y) bringing bona fide commercial disputes that do not relate to the subject matter of this Agreement; or (z) exercising statutory appraisal rights; (2) restrict the ability of any Person (x) to comply with any subpoena or other legal process or respond to a request for information from any portion governmental authority with jurisdiction over the Party from whom information is sought, or (y) to respond proportionately to any statement made by the other Party or any of a its Affiliates, managing members, directors, officers, advisory board members, partners (other than partners who are solely limited partners), employees, agents or representatives which, in the reasonable view of outside counsel, is in violation of Section 1(e); (3) prevent Investor or any of its Affiliates from making public or private statements commenting on any Extraordinary Transaction (including any statement stating whether Investor is in favor of or against any potential Extraordinary Transaction) announced by or in respect of the Company; or (4) prohibit either Director Designee from (x) voting for or against any matter or making any statement at any meeting of the Board or of any committee meeting thereof, or (including voting thereat), and y) making any private statement to restrict any executive officer of the Independent Designees’ access to information Company or any other director of the Company, in the event the Board or such committee determineseach case, in good faith, that there is an actual or potential conflict of interest of such Independent Designeehis capacity as a director.
(hf) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during During the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Company shall not take any action to remove, or cause to be removed, a Director Designee other than for cause (as such term has executed and delivered to been interpreted under the Company laws of Delaware for purposes of Section 141(k) of the Director Letter in the form attached hereto as Exhibit B.Delaware General Corporation Law).
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon Xxxxx Xxxxxx has indicated his willingness to serve as a member of the Board, to replace Xxxxx (Xxxxxx) Xxxxxxx, a Class II member of the Board. Xx. Xxxxxx has provided the Company, and shall in the future provide the Company as required, with (i) a completed director questionnaire in the form provided to all directors and (ii) information and certifications required of all directors pursuant to the Israeli Companies Law, 5759-1999 (as amended from time to time, the “Companies Law”), the Company’s Articles of Association (as amended from time to time, the “Articles of Association”), and the Company’s committee charters, corporate governance guidelines and similar governance documents, in each case, that are publicly disclosed (collectively with the Companies Law and the Articles of Association, the “Governance Documents”).
(b) Based on the information provided pursuant to Section 1(a), the Board has resolved, subject to the execution and delivery of this Agreement, Voce has terminated to appoint Xxxxx Xxxxxx (as appointed, and including any Replacement Designee pursuant to Section 1(e), the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto “Agreed Nominee”), as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment a director of the conditions set forth in Section 1(f) Company, effective immediately upon the execution of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board (the “First Independent Designee”) to fill the vacancy resulting from on the upcoming retirement of Xxxx X. Xxxxxx Board created by Mr. Kenneth’s departure from the Board, until the next Annual General Meeting of Shareholders (the “2022 Annual Meeting”).
(c) Between the execution and delivery of this Agreement and the earlier of The Board shall (i) nominate the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees Agreed Nominee for election to the Board at the 2022 Annual Meeting as a director in its proxy statement and proxy card“Class II,” to serve until the Company’s 2023 Annual General Meeting of Shareholders (the “2023 Annual Meeting”), (ii) recommend to the shareholders of the Company the election of the New Directors Agreed Nominee to the BoardBoard at the 2022 Annual Meeting, and (iii) solicit proxies in favor of the election of the New Directors Agreed Nominee to the Board at the 2022 Annual Meeting in a the same manner no less rigorous and favorable than the manner in which the Company supports its as for all other director nominees.
(e) At the first regular meeting nominees of the Board following the appointment of all of the New Directors, the Board. The Board shall take the necessary steps to appoint also (i) nominate the First Independent Designee Agreed Nominee for election to the Board at the 2023 Annual Meeting as a member of the Nominating class of directors having a term expiring at the 2026 Annual General Meeting of Shareholders, (ii) recommend to the shareholders of the Company the election of the Agreed Nominee to the Board at the 2023 Annual Meeting, and Corporate Governance Committee and (iii) solicit proxies in favor of the election of the Agreed Nominee to the Board at least one additional committee the 2023 Annual Meeting in the same manner as for all other nominees of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(fd) As a condition The Company agrees and acknowledges that Xx. Xxxxxx shall have the same rights and benefits, including with respect to the appointment of the First Independent Designee insurance, indemnification, compensation and fees, as are applicable to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s all non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms management directors of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees . The parties agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, be no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement Agreement, between Voce either party and the Independent Designees Agreed Nominee providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees Agreed Nominee in connection with or related to the Independent Designees’ Agreed Nominee’s service on the BoardBoard except, in the case of the Company, for such contracts, plans or arrangements as the Company has entered into with other directors.
(ie) As promptly Until the Termination Date and as practicablelong as the Investor Group’s collective Net Long Position exceeds 5.5% of the then outstanding Ordinary Shares (the “Ownership Minimum”), in the event that the Agreed Nominee is unable or unwilling to serve as a director, resigns as a director, is removed as a director or ceases to be a director for any other reason before the Termination Date, the Company shall file with and the appropriate insurance regulators for approval Investor Group will cooperate in good faith to promptly identify and agree upon a Qualified Candidate to serve as a replacement director (as appointed, the “Replacement Designee”) by the date that is no later than sixty (60) days after the departure of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoingAgreed Nominee. To the extent legally permitted, the Company and Voce the Investor Group cannot agree on the Replacement Designee candidate, the parties shall use their respective reasonable best efforts continue to keep follow the other apprised procedures of this Section 1(e) until a candidate mutually agreed upon by the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with parties is appointed to the foregoingBoard as the Replacement Designee.
(jf) Simultaneous with Each party acknowledges and agrees that the rights of the Investor Group and the obligations of the Company pursuant to this Section 1 shall terminate immediately upon the Termination Date.
(g) Immediately following the execution and delivery of this Agreement, the First Independent Designee has executed Board and delivered all applicable committees of the Board shall take all necessary actions to appoint the Agreed Nominee to the Company Compensation and Nominating Committee of the Director Letter in Board. Without limiting the form attached hereto foregoing, the Board shall give the Agreed Nominee the same due consideration for membership to any committee of the Board as Exhibit B.any other director, including any sub-committee or new committee of the Board formed during the term of this Agreement.
Appears in 1 contract
Samples: Cooperation Agreement (Allot Ltd.)
Board Composition and Related Matters. (a) Effective upon the execution and delivery a. The Board of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice CLC currently is composed of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board (the “First Independent Designee”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of three individuals (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and XxxXxx Xxxxx-Xxxxxxxx (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees for election to the Board in its proxy statement and proxy card, (ii) recommend to the shareholders of the Company the election of the New Directors to the BoardXxxx Xxxxxx, and (iii) solicit proxies in favor Xxxx Xxxxxxxx. Prior to the date of this Agreement, Xxxxx Xxxxxx resigned from the Board of CLC. Effective as of the election date of the New Directors to this agreement, Xxxx Xxxxxxxx resigns from the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other director nomineesof CLC.
(e) At b. Pursuant to this Agreement the first regular meeting size of the Board following the appointment of all shall be fixed at no more than four (4) directors until such time as it is changed by a majority vote of the New Directors, Board and shall be composed of the Board shall take the necessary steps to appoint following individuals: (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and Xxxxx Xxxx (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; Xxx Xxxxxx (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s nonXxxXxx Xxxxx-executive directors; Xxxxxxxx (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors Xxxx Xxxxxx (collectively, the “Governance DocumentsBoard”); .
x. Xxxx and Xxxxxx (vii) deliver to will answer and execute the board questionnaire, which shall be filed with the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (viiii) provide such other information as may be reasonably requested by shall execute an attestation affirming their qualifications to serve on the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information board of the Company. Upon the acceptance of this agreement, the attestations, the completed questionnaires (and that the information in the event the Board or such committee determinesquestionnaires present no issues that would create conflict with SEC regulations), in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents Xxxx and warrants that there are, and covenants that there Xxxxxx shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service be presented on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators ballot for approval of the appointment and/or election to the Board board of directors at the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requestsApril 15, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing2020 annual shareholders meeting.
(j) Simultaneous with d. Xxxx Xxxxxxx and R. Xxxx Xxxx, XX will answer and execute the execution board questionnaire and delivery of this Agreement, the First Independent Designee has executed and delivered will submit their qualifications to be future board members according to the Company company’s bylaws. In the Director Letter event they do not so qualify, Xxxx and Xxxxxx may nominate additional prospective board members. Nothing in this Agreement is intended to inhibit the form attached hereto ability of other shareholders and board members to nominate board candidates at the Shareholders Meeting as Exhibit B.permitted by law.
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon the execution and delivery of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted The Parties shall take all necessary actions to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, reconstitute the Board shall appoint Xxxxx X. XxXxxx to the Board as follows (the “First Independent DesigneeReconstituted Board”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of ): (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and Xxxx Xxxxx, (ii) February 14Xxxxxx Xxxxxxx, 2020(iii) Xxxx Xxxxxxxxxx, and (iv) Xxxxx Xxxxxxx (the persons in (i) through (iv) collectively, the “Incumbent Designees”), and (v) Xxxxx Xxxxxxxxx, (vi) Xxxx Xxxxxxx, and (vii) Xxx Xxxxxxxx (the persons in (v) through (vii) collectively, the “XX-XX Designees”). In furtherance of the foregoing, but not limited thereto, as soon as possible on or following the date hereof (but in no event later than July 8, 2016), (A) the incumbent Board shall select an additional Independent Director from a list of three cumulate its votes for the director candidates to be provided by Voce to elections at the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 2016 Annual General Meeting (i) include the New Directors as nominees for election to the Board in its proxy statement and proxy card, (ii) recommend to the shareholders of the Company the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of Xxxx Xxxxx, Xxxxxx Xxxxxxx, Xxxx Xxxxxxxxxx and Xxxxx Xxxxxxx; (B) the New Directors XX-XX Group shall cumulate its votes for the director elections at the 2016 Annual Meeting in favor of the election of Xxxxx Xxxxxxxxx, Xxxx Xxxxxxx and Xxxxxxx Goose; and (C) Xxxxxxx Goose hereby resigns from the Board, effective automatically immediately following his election to the Board, and the Board shall fill such vacancy by appointing Xxx Xxxxxxxx.
(b) Until the Termination Date, the Board shall (i) nominate the XX-XX Designees for election to the Board at each Shareholder Meeting or in a manner no less rigorous and favorable than the manner in respect of any solicitation of written consents of shareholders at which directors are to be elected; (ii) cause the Company supports its other to file a definitive proxy statement or definitive consent statement in respect of each Shareholder Meeting or solicitation of written consents of shareholders at which directors are to be elected and recommend that the Company's shareholders vote or consent directly or by proxy in favor of, and otherwise use reasonable best efforts to cause, the election of all XX-XX Designees; and (iii) cause the Company to file a definitive consent revocation statement in respect of any solicitation of written consents of shareholders to remove any of the XX-XX Designees and recommend that the Company’s shareholders do not sign consents to remove any of the XX-XX Designees and use reasonable best efforts to cause the revocation of any such consents.
(c) The size of the Board shall be fixed at no more than seven directors until the Termination Date; provided, however, that the Board shall in good faith consider adding, but shall not be obliged to add, a possible eighth director nomineesin connection with the 2017 Annual Meeting of Shareholders and a possible ninth director in connection with the 2018 Annual Meeting of Shareholders.
(d) The Reconstituted Board shall appoint Xxxxx Xxxxxxxxx as Chairman of the Board.
(e) At the first regular meeting of the Board following the appointment of all of the New Directors, the The Reconstituted Board shall take the necessary steps to appoint (i) Xxxxx Xxxxxxx as Chairman of the First Independent Designee Audit Committee, (ii) Xxxx Xxxxxxx as a member Chairman of the Compensation Committee, and (iii) Xxxx Xxxxxxxxxx (or another Incumbent Designee) and Xxxxx Xxxxxxxxx as Co-Chairmen of the Nominating and Corporate Governance Committee Committee. The Board shall appoint Xxxxx Xxxxxxxxx, Xxx Xxxxxxxx, Xxxx X. Xxxxxxxxxx and at least one additional committee Xxxxx Xxxxxxx as members of the Board, as selected by the Board, Nominating and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is tradedGovernance Committee.
(f) As a condition to The Reconstituted Board shall review director compensation with the appointment intent of the First Independent Designee to modifying total cash compensation for the Board and the inclusion of the Second Independent Designee in line with industry best practices for comparable companies in consultation with the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directorsoutside compensation consultant.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoing.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B.
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon Xxxxx Xxxxxx has indicated his willingness to serve as a member of the Board, to replace Xxxxx (Xxxxxx) Xxxxxxx, a Class II member of the Board. Xx. Xxxxxx has provided the Company, and shall in the future provide the Company as required, with (i) a completed director questionnaire in the form provided to all directors and (ii) information and certifications required of all directors pursuant to the Israeli Companies Law, 5759-1999 (as amended from time to time, the “Companies Law”), the Company’s Articles of Association (as amended from time to time, the “Articles of Association”), and the Company’s committee charters, corporate governance guidelines and similar governance documents, in each case, that are publicly disclosed (collectively with the Companies Law and the Articles of Association, the “Governance Documents”).
(b) Based on the information provided pursuant to Section 1(a), the Board has resolved, subject to the execution and delivery of this Agreement, Voce has terminated to appoint Xxxxx Xxxxxx (as appointed, and including any Replacement Designee pursuant to Section 1(e), the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto “Agreed Nominee”), as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment a director of the conditions set forth in Section 1(f) Company, effective immediately upon the execution of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board (the “First Independent Designee”) to fill the vacancy resulting from on the upcoming retirement of Xxxx X. Xxxxxx Board created by Mr. Kenneth’s departure from the Board, until the next Annual General Meeting of Shareholders (the “2022 Annual Meeting”).
(c) Between the execution and delivery of this Agreement and the earlier of The Board shall (i) nominate the filing with the SEC of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees Agreed Nominee for election to the Board at the 2022 Annual Meeting as a director in its proxy statement and proxy card“Class II,” to serve until the Company’s 2023 Annual General Meeting of Shareholders (the “2023 Annual Meeting”), (ii) recommend to the shareholders of the Company the election of the New Directors Agreed Nominee to the BoardBoard at the 2022 Annual Meeting, and (iii) solicit proxies in favor of the election of the New Directors Agreed Nominee to the Board at the 2022 Annual Meeting in a the same manner no less rigorous and favorable than the manner in which the Company supports its as for all other director nominees.
(e) At the first regular meeting nominees of the Board following the appointment of all of the New Directors, the Board. The Board shall take the necessary steps to appoint also (i) nominate the First Independent Designee Agreed Nominee for election to the Board at the 2023 Annual Meeting as a member of the Nominating class of directors having a term expiring at the 2026 Annual General Meeting of Shareholders, (ii) recommend to the shareholders of the Company the election of the Agreed Nominee to the Board at the 2023 Annual Meeting, and Corporate Governance Committee and (iii) solicit proxies in favor of the election of the Agreed Nominee to the Board at least one additional committee the 2023 Annual Meeting in the same manner as for all other nominees of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(fd) As a condition The Company agrees and acknowledges that Xx. Xxxxxx shall have the same rights and benefits, including with respect to the appointment of the First Independent Designee insurance, indemnification, compensation and fees, as are applicable to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s all non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms management directors of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees . The parties agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, be no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement Agreement, between Voce either party and the Independent Designees Agreed Nominee providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees Agreed Nominee in connection with or related to the Independent Designees’ Agreed Nominee’s service on the BoardBoard except, in the case of the Company, for such contracts, plans or arrangements as the Company has entered into with other directors.
(ie) As promptly Until the Termination Date and as practicablelong as the Investor Group’s collective Net Long Position exceeds 5.5% of the then outstanding Ordinary Shares (the “Ownership Minimum”), in the event that the Agreed Nominee is unable or unwilling to serve as a director, resigns as a director, is removed as a director or ceases to be a director for any other reason before the Termination Date, the Company shall file with and the appropriate insurance regulators for approval Investor Group will cooperate in good faith to promptly identify and agree upon a Qualified Candidate to serve as a replacement director (as appointed, the “Replacement Designee”) by the date that is no later than sixty (60) days after the departure of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoingAgreed Nominee. To the extent legally permitted, the Company and Voce the Investor Group cannot agree on the Replacement Designee candidate, the parties shall use their respective reasonable best efforts continue to keep follow the other apprised procedures of this Section 1(e) until a candidate mutually agreed upon by the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with parties is appointed to the foregoingBoard as the Replacement Designee.
(jf) Simultaneous with Each party acknowledges and agrees that the rights of the Investor Group and the obligations of the Company pursuant to this Section 1 shall terminate immediately upon the Termination Date.
(g) Immediately following the execution and delivery of this Agreement, the First Independent Designee has executed Board and delivered all applicable committees of the Board shall take all necessary actions to appoint the Agreed Nominee to the Company Compensation and Nominating Committee of the Director Letter in Board. Without limiting the form attached hereto foregoing, the Board shall give the Agreed Nominee the same due consideration for membership to any committee of the Board as Exhibit B.any other director, including any sub-committee or new committee of the Board formed during the term of this Agreement.
Appears in 1 contract
Samples: Cooperation Agreement (Outerbridge Capital Management LLC)
Board Composition and Related Matters. (a) Effective upon The Company shall procure the execution and delivery resignation of this Agreement, Voce has terminated the Consent Solicitation and Proxy Solicitation and withdrawn the Requisition Notice and Notice of Proposals and submitted to the Company an executed letter to that effect in the form attached hereto as Exhibit A.
(b) As soon as reasonably practicable after January 1, 2020, subject to the fulfillment of the conditions set forth in Section 1(f) of this Agreement, the Board shall appoint Xxxxx X. XxXxxx to the Board Xxxxxx Xxxxxxx (the “First Independent DesigneeResigning Director”) to fill the vacancy resulting from the upcoming retirement Board of Xxxx X. Xxxxxx Directors of the Company (the “Board”) with effect from the Board.
(c) Between the execution and delivery of this Agreement and the earlier of (i) the filing with the SEC of the Company’s definitive proxy statement for the 2020 next annual general meeting of shareholders of the Company including any adjournments or postponements thereof (the “2020 2019 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If The Resigning Director shall not stand or be nominated for any reason election at the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions2019 Annual Meeting.
(db) Subject The Company agrees to include Xxxx Xxxxxx (“Xxxxxx”) in the fulfillment slate of the conditions set forth in Section 1(f), the Company shall, with respect to the 2020 Annual General Meeting (i) include the New Directors as nominees recommended for election to the Board in at the 2019 Annual Meeting. The Company shall use its proxy statement and proxy card, (ii) recommend reasonable best efforts to the shareholders of the Company cause the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of the New Directors Xxxxxx to the Board at the 2019 Annual Meeting, including supporting Xxxxxx in a manner no less rigorous and favorable than the manner in which the Company supports its other director nominees.
(c) M&G shall (i) to the extent legally permitted promptly withdraw its proxy circular and proxy card in respect of the 2019 Annual Meeting and, to the extent withdrawal is not permissible in respect of proxies received and not subsequently revoked, to the extent legally permissible vote such proxies at the 2019 Annual Meeting in favor of the revised slate of nominees recommended for election to the Board by the Company, (ii) cease to solicit proxies in connection with the 2019 Annual Meeting, (iii) cause each of Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxxx to withdraw their consent to being nominated for election at the 2019 Annual Meeting and (iv) cause such common shares of the Company (the “Common Shares”) as are owned of record or beneficially by M&G or its controlled affiliates on the record date for the 2019 Annual Meeting to be present for quorum purposes and voted in favor of the slate of nominees proposed by the Company.
(d) At the 2019 Annual Meeting, (i) the shareholders of the Company shall elect eleven directors and (ii) the Company will nominate Xxxxxx and each of the incumbent directors (other than Xxxxxx Xxxxxxxx and the Resigning Director) for election to the Board. The Company shall not permit any individuals other than Xxxxxx and such incumbent directors to be nominated for election to the Board.
(e) At M&G shall as promptly as practicable deliver to the first regular Board a list of six (6) candidates (the “Candidate List”), three (3) of whom shall be Xxxxx Xxxxxxx, Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxxxxxx and three (3) of whom shall be additional persons designated by M&G who possess significant financial experience and one or more other skills identified in the Company’s director skills matrix (the “Skills Matrix”) set forth under the heading “Nomination of Directors – Nominating Committee and Nomination Process” in the Company’s management information circular for the 2019 Annual Meeting. Not later than four (4) weeks after the delivery to the Board of the Candidate List, the Board shall select one (1) person from the Candidate List to be appointed as a director of the Company (the “Additional Director” and, together with Xxxxxx, the “New Directors”). As promptly as practical after the Additional Director is selected in accordance with this Section 1(e), the Company shall take all necessary actions under the organizational documents of the Company to increase the size of the Board’s membership by one (1) and appoint the Additional Director as a director of the Company with a term expiring at the annual meeting of shareholders of the Company for 2020 (the “2020 Annual Meeting”).
(f) M&G acknowledges that each New Director (and any Replacement pursuant to Section 1(g)), upon appointment or election to the Board, shall be required to comply with all of the same policies, processes, procedures, codes, rules, standards and guidelines applicable to all of the other members of the Board in their capacities as directors (collectively, the “Company Policies”). Prior to the 2019 Annual Meeting, the Company shall provide to M&G all Company Policies applicable to all members of the Board which are not publicly available on the Company’s website. In addition, each New Director (and any Replacement pursuant to Section 1(g)) shall (i) provide to the Company any information required to be disclosed under applicable law or stock exchange regulations or other information required by the Company to be provided by all directors in connection with the Board’s assessment of the directors’ eligibility, independence and other similar criteria and (ii) at all times while serving on the Board, qualify as an “independent director” for the purposes of National Instrument 52-110 – Audit Committees.
(g) If at any time prior to the Termination Date (as defined below) any New Director or Replacement is unable or unwilling to serve as a director for any reason, then M&G, by delivery of a written notice to the Company prior to the Termination Date, shall have the right to designate a replacement for such director with an individual (a “Replacement”) acceptable to the Company, acting reasonably, who (i) possess significant financial experience and one or more other skills identified in the Skills Matrix, (ii) qualifies as an “independent director” for the purposes of National Instrument 52-110 – Audit Committees, (iii) is not a director, officer or employee of M&G or any of its controlled affiliates, (iv) does not receive compensation from M&G or any of its controlled affiliates, (v) agrees to comply with the Company Policies and (vi) otherwise provides the information required to be provided to the Company pursuant to Section 1(f).
(h) Promptly following the appointment of all of the New Directors, the Board shall take reorganize the necessary steps composition of its committees such that each of the New Directors is appointed to appoint two committees (such that New Directors are represented on four committees in total), including (immediately following the 2019 Annual Meeting) the appointment of Xxxxxx and three incumbent directors selected by the Board to the Audit, Finance and Risk committee of the Board (the “Risk Committee”). The Risk Committee shall conduct a financial review of the Company’s potential investment in a third methanol production plant in Geismar, Louisiana (“Geismar 3”). This independent review shall be conducted as promptly as practicable following the 2019 Annual Meeting and with the assistance of an independent financial advisor (the “Financial Advisor”), to be one of Deloitte, E&Y or Fort Capital Partners, and selected by the Risk Committee. The Financial Advisor shall advise and support the Risk Committee in reviewing the Geismar 3 Finance Plan prepared by the Company’s management by assessing the impact of pursuing a potential investment in Geismar 3 on (i) the First Independent Designee as a member of the Nominating Company’s liquidity and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, cash flow and (ii) the Second Independent Designee as Company’s ability to continue its dividend policy and practice of share buybacks with excess cash during the Geismar 3 construction period for a member reasonable range of at least one committee methanol prices based on past methanol pricing cycles. The compensation of the Board, as selected by Financial Advisor shall not be contingent on the Board, subject to applicable rules of advice the SEC and of each stock exchange on which Financial Advisor provides or the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the CompanyRisk Committee’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election conclusions or recommendation to the Board; (ii) conduct one . Each of the parties acknowledges and agrees that the “Final Investment Decision” or more interviews “FID” with respect to Geismar 3 resides with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensation, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the full Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval The Board will not utilize committees of the appointment and/or election Board for the purpose of discriminating against the New Directors in order to limit their participation in substantive deliberations of the Board or make any change to the Board number of directors of the Independent DesigneesBoard in order to frustrate the purpose of this Cooperation Agreement. Each New Director will have access to all Board committee materials on the same basis as other directors. The Company and Voce shall promptly prepare and file with will not amend the appropriate insurance regulators such additional requestsCompany’s organizational documents, reports or notifications as may be required in connection with such approvalamend or enter into any Company Policies, and shall cooperate fully with each other in connection with to frustrate the foregoing. To the extent legally permitted, the Company and Voce shall use their respective reasonable best efforts to keep the other apprised purpose of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators in connection with the foregoingthis Cooperation Agreement.
(j) Simultaneous with Not later than the execution and delivery date that is sixty (60) days prior to the date of this Agreementthe 2020 Annual Meeting, the First Independent Designee has executed Company shall notify M&G in writing if it intends to include the New Directors (or their respective Replacements) in the slate of nominees recommended by the Board in the Company’s information circular and delivered on its proxy card relating to the 2020 Annual Meeting (the “2020 Proxy Documents”). In the event the Company so notifies M&G that it intends to include the Director Letter New Directors (or their respective Replacements) in such slate, then the Company shall include the New Directors (or their respective Replacements) in the form attached hereto as Exhibit B.slate of nominees recommended by the Board in the 2020 Proxy Documents and use its reasonable best efforts to cause the election at the 2020 Annual Meeting of each of the New Directors (or their respective Replacements) identified in the 2020 Proxy Documents, including supporting each of them for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees.
Appears in 1 contract
Samples: Cooperation Agreement (M&g Investment Management LTD)
Board Composition and Related Matters. (a) Effective upon Each member of the execution Kleinheinz Group agrees that it shall not, and delivery that it shall not permit any of this Agreementits Representatives to, Voce has terminated directly or indirectly, (23) nominate or recommend for nomination any person for election at the Consent Solicitation and Proxy Solicitation and withdrawn 2014 Annual Meeting or 2015 Annual Meeting; (23) submit any proposal for consideration at, or bring any other business before, the Requisition Notice and Notice of Proposals and submitted 2014 Annual Meeting or 2015 Annual Meeting; (23) initiate, encourage or participate in any “withhold” or similar campaign with respect to the 2014 Annual Meeting or 2015 Annual Meeting; or (23) publicly or privately encourage or support any other stockholder of the Company an executed letter to that effect take any of the actions described in the form attached hereto as Exhibit A.this Section 1(a).
(b) As soon as reasonably practicable after January 1, 2020, subject The Company agrees to appoint two directors mutually agreeable to both the fulfillment of Company and the conditions Kleinheinz Group (the “Mutually Agreed Directors”) in accordance with the process set forth in this Section 1(f) of this Agreement1(b). Within five business days following the date hereof, the Board shall appoint Xxxxx X. XxXxxx to Nominating and Governance Committee of the Board (the “First Independent DesigneeNominating Committee”) shall engage Xxxxxxx Xxxxxx or another executive search firm approved by the Kleinheinz Group (the “Search Firm”) to fill the vacancy resulting from the upcoming retirement of Xxxx X. Xxxxxx from identify candidates for appointment as directors to the Board. The Search Firm shall identify candidates who (23) are unaffiliated and unassociated with the Company and the Kleinheinz Group; (23) qualify as an “independent director” under applicable rules of the U.S. Securities and Exchange Commission (the “SEC”) and the applicable rules of the New York Stock Exchange; and (23) have the recommended (but not required) experience and qualifications set forth on Exhibit A, which shall be subject to modification with the mutual consent of the Parties (“Qualified Individuals”). The Nominating Committee shall evaluate all Qualified Individuals identified by the Search Firm consistent with the Nominating Committee’s fiduciary duties under applicable law and, in good faith, regularly consult with the Kleinheinz Group and keep the Kleinheinz Group reasonably updated throughout the search process. The Nominating Committee shall use its reasonable best efforts to propose, as promptly as reasonably practicable but in no event later than 120 days after the date of this Agreement, two or more Qualified Individuals to the Kleinheinz Group for approval (which approval shall not be unreasonably withheld, delayed or conditioned). The Kleinheinz Group (or a designee thereof) shall be entitled to have, together with the Nominating Committee, a joint in-person meeting with each proposed Qualified Individual at the Company’s headquarters in Houston prior to making its approval decision. No member of the Kleinheinz Group shall knowingly attempt to interfere with the process to appoint the Mutually Agreed Directors described herein by contacting any of the Qualified Individuals identified by the Search Firm outside the foregoing process; provided, however, that nothing in this Agreement shall prevent any member of the Kleinheinz Group from making recommendations to the Company regarding prospective Qualified Individuals; provided, further, that if the Nominating Committee proposes Qualified Individuals who were not recommended by the Kleinheinz Group, the fact that the Kleinheinz Group proposed other Qualified Individuals cannot, by itself, serve as the basis for the Kleinheinz Group’s refusal to approve the Qualified Individuals proposed by the Nominating Committee.
(c) Between As promptly as practicable following the execution approval of the Mutually Agreed Directors by the Kleinheinz Group, the Board shall (23) increase the size of the Board from five to seven members; (23) appoint the Mutually Agreed Directors to the Board to fill the vacancies created by such increase; and delivery (23) appoint one of this Agreement the Mutually Agreed Directors as the Chairman of the Reserves Review Committee of the Board and permit such Mutually Agreed Director to serve as Chairman of the earlier Reserves Review Committee of (i) the filing Board for at least as long as he serves as a member of the Board. The Board shall consider the Mutually Agreed Directors for appointment to Board leadership positions to other committees of the Board on the same basis as other members of the Board. The Mutually Agreed Directors shall serve as integral members of the Board and be bound by the same confidentiality, conflicts of interests, fiduciary duties, trading and disclosure policies and other governance guidelines, including the Company’s Code of Conduct and Ethics, and shall have the same rights and benefits, including with the SEC respect to insurance, indemnification, compensation and fees applicable to all other independent directors of the Company’s definitive proxy statement for the 2020 annual general meeting of shareholders of the Company (the “2020 Annual General Meeting”) and (ii) February 14, 2020, (A) the Board shall select an additional Independent Director from a list of three director candidates to be provided by Voce to the Company no later than February 4, 2020, such candidates to be director nominees included in the Notice of Proposals as director candidate (the “Second Independent Designee” and, together with the First Independent Designee, the “Independent Designees”) and (B) Voce shall select an additional Independent Director as director candidate from a list of three to five director candidates to be provided by the Company to Voce in good faith no later than February 4, 2020 (together with the Independent Designees, the “New Directors”). If for any reason the conditions set forth in Section 1(f) are not met with respect to any candidate then the process in this provision shall be repeated until such candidate is found who meets those conditions.
(d) Subject to the fulfillment of the conditions set forth in Section 1(f)Board’s fiduciary duties under applicable law, the Company shall, with respect to Board shall (23) nominate the 2020 Annual General Meeting (i) include the New Mutually Agreed Directors as nominees for election as directors to the Board in its at the 2014 Annual Meeting (to the extent the Mutually Agreed Directors have been selected, approved and appointed prior to the mailing of the definitive proxy statement for the 2014 Annual Meeting) and the 2015 Annual Meeting; (23) cause the Company to file a definitive proxy cardstatement for the 2014 Annual Meeting (to the extent the Mutually Agreed Directors have been selected, approved and appointed prior to the mailing of the definitive proxy statement for the 2014 Annual Meeting) and the 2015 Annual Meeting with the SEC, including such information regarding the Mutually Agreed Directors as is required by federal securities laws in connection with their nomination by the Board; and (ii23) recommend that the Company’s stockholders vote directly or by proxy in favor of, and otherwise use reasonable efforts to the shareholders of the Company cause, the election of the New Directors to the Board, and (iii) solicit proxies in favor of the election of the New Mutually Agreed Directors to the Board in a manner no less rigorous at the 2014 Annual Meeting (to the extent the Mutually Agreed Directors have been selected, approved and favorable than appointed prior to the manner in which mailing of the Company supports its other director nomineesdefinitive proxy statement for the 2014 Annual Meeting) and 2015 Annual Meeting.
(e) At In the first regular meeting event one or both of the Board following the appointment of all of the New Directors, Mutually Agreed Directors ceases to serve as a director on the Board shall take the necessary steps to appoint (i) the First Independent Designee as a member of the Nominating and Corporate Governance Committee and at least one additional committee of the Board, as selected by the Board, and (ii) the Second Independent Designee as a member of at least one committee of the Board, as selected by the Board, subject to applicable rules of the SEC and of each stock exchange on which the Company is traded.
(f) As a condition to the appointment of the First Independent Designee to the Board and the inclusion of the Second Independent Designee in the Company’s proxy statement for the 2020 Annual General Meeting, each would be required to (i) obtain regulatory approval for their appointment and/or election to the Board; (ii) conduct one or more interviews with the Board and its Nominating and Corporate Governance Committee; (iii) deliver to the Company a completed director questionnaire in the form used by the Company’s non-executive directors; (iv) consent to be named as a nominee in the Company’s proxy statement for the 2020 Annual General Meeting; (v) agree to abide by the terms of the Company’s Amended and Restated Memorandum of Association, dated May 28, 1999 (as amended and as may be further amended from time to time, the “Memorandum of Association”), the Company’s Amended and Restated Bye-Laws, dated March 5, 2010 (as amended and as may be further amended from time to time, the “Bye-Laws”), committee charters, corporate governance guidelines or similar governance documents applicable to directors (collectively, the “Governance Documents”); (vi) deliver to the Company an executed letter in the form attached hereto as Exhibit B (“Director Letter”) and (vii) provide such other information as may be reasonably requested by the Company for all its directors.
(g) Voce and each of the Independent Designees agree that the Board or any committee thereof, in the exercise of its fiduciary duties, shall have the right to exclude the Independent Designees from any portion of a Board or committee meeting (including voting thereat), and to restrict the Independent Designees’ access to information of the Company, in the event the Board or such committee determines, in good faith, that there is an actual or potential conflict of interest of such Independent Designee.
(h) Voce represents and warrants that there are, and covenants that there shall be, no contracts, plans or arrangements, written or otherwise, in effect during the term of this Agreement between Voce and the Independent Designees providing for any compensationreason, reimbursement of expenses or indemnification of the Independent Designees in connection with or related to the Independent Designees’ service on the Board.
(i) As promptly as practicable, the Company shall file with the appropriate insurance regulators for approval of the appointment and/or election to the Board of the Independent Designees. The Company and Voce shall promptly prepare and file with the appropriate insurance regulators such additional requests, reports or notifications as may be required in connection with such approval, and shall cooperate fully with each other in connection with the foregoing. To the extent legally permitted, both the Company and Voce the Kleinheinz Group shall use their respective reasonable best efforts to keep the other apprised of the status of any communications with, and any inquiries or requests for additional information from, any insurance regulators replace such person with a new Mutually Agreed Director in connection accordance with the foregoingprocess set forth in this Section 1.
(j) Simultaneous with the execution and delivery of this Agreement, the First Independent Designee has executed and delivered to the Company the Director Letter in the form attached hereto as Exhibit B.
Appears in 1 contract
