Board Composition and Related Matters. (a) Effective upon the execution and delivery of this Agreement, the Board: (i) increases the size of the Board by one director; (ii) appoints the Investor Designee to fill the vacancy resulting from the increase in the size of the Board pursuant to the foregoing clause (i); and (iii) nominates the Investor Designee for election to the Board at the Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”), with a term expiring at the Company’s 2022 annual meeting of stockholders (the “2022 Annual Meeting”). (b) Simultaneous with the execution and delivery of this Agreement and as a condition to the Investors’ rights and the Board’s obligations herein, the Investor Designee has executed and delivered to the Company a resignation letter in the form attached hereto as Exhibit A. (c) The Company shall, with respect to the 2021 Annual Meeting, (i) include the Investor Designee in its proxy statement and proxy card as a director nominee of the Board, (ii) recommend the election of the Investor Designee to the Board to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Investor Designee to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees (the foregoing clauses (ii) and (iii), the “Election Support Efforts”). In connection with the foregoing, the Investor Designee hereby consents to be named as a nominee of the Company for election to the Board in any applicable proxy statement, proxy card or other solicitation materials of the Company. (d) For any Annual Meeting subsequent to the 2021 Annual Meeting and as long as the Investor Designee is on the Board, the Company shall irrevocably notify the Investors in writing (a “Renomination Notice”), no less than fifty-five (55) calendar days before the last day of the advance notice window for director nominations at such Annual Meeting pursuant to the Company’s Amended and Restated By-Laws (as amended from time to time, the “Bylaws”), whether the Company intends to renominate the Investor Designee for election to the Board at such Annual Meeting. If the Investor Designee has received a Renomination Notice, the Investor Designee shall have ten (10) Business Days from delivery of such Renomination Notice (the “Renomination Response Period”) to notify the Company in writing of his consent to such renomination (a “Renomination Consent”). If the Investor Designee is renominated for election at an Annual Meeting pursuant to a Renomination Notice and has delivered a corresponding Renomination Consent, the Company shall nominate the Investor Designee for election to the Board at such Annual Meeting and shall provide full Election Support Efforts for the election of the Investor Designee. Notwithstanding anything to the contrary contained herein, if the Company renominates the Investor Designee for election to the Board at the 2022 Annual Meeting and the Investor Designee delivers a corresponding Renomination Consent during the Renomination Response Period, then the Terminable Date under Section 11(a) shall be extended to the date that is forty-five (45) calendar days before the last day of the advance notice window for director nominations at the Company’s 2023 annual meeting of stockholders pursuant to the Bylaws. (e) Effective upon the execution and delivery of this Agreement, the Board duly appoints the Investor Designee to serve on the Audit Committee of the Board until the Termination Date, unless otherwise agreed by the Investors in writing. In addition, upon the reasonable request of the Investor Designee, the Board shall consult with the Investor Designee regarding the appointment of the Investor Designee to one or more other committees of the Board, with the understanding that the intent of the parties is that the Investor Designee shall be considered for membership on committees of the Board in the same manner as other members of the Board, subject to Section 1(f). The Investor Designee shall have the same right as other members of the Board to be invited to attend meetings of committees of the Board of which the Investor Designee is not a member, and to receive the same information as other directors, subject to Section 1(f). The Investor Designee shall receive prior written notice of any proposal to form a new committee and shall be considered for appointment to any new committee on the same basis as the other Board members, taking into consideration applicable skill sets and the number of committees on which the all directors, including the Investor Designee, already serve. (f) The Investors agree that the Board or any committee thereof, in the good faith exercise of its fiduciary duties (without the Investor Designee voting on such determination), shall have the right to recuse the Investor Designee from any portion of a Board or committee meeting and may restrict access to information of the Company to the extent the Board or any such committee is deliberating and/or taking action with respect to (i) the enforcement or performance of this Agreement, (ii) the Investor Designee’s failure to comply with the Charter, the Bylaws or applicable Company Policies, (iii) any demands made by any of the Investors or any of their respective Affiliates with respect to the Company if such demand is coupled expressly with the threat to take any of the actions prohibited in Sections 3(a) through 3(k) or (iv) any proposed transaction between the Company and any of the Investors or any of their respective Affiliates or any other matter where the interests of the Investors or any of their respective Affiliates are directly adverse to those of the Company. For the avoidance of doubt, (A) consistent with his fiduciary duties as a director of the Company, the Investor Designee shall consider in good faith, to the same extent as any other director of the Company, recusal from any Board or committee meeting in the event there is any other actual or potential conflict of interest between the Investors, on the one hand, and the Company, on the other hand, and (B) the Board may restrict the Investor Designee’s access to information of the Company to the same extent it would for any other director of the Company, in accordance with applicable law. The Company represents and warrants that all Company Policies currently in effect are publicly available on the Company’s website or have been provided to the Investors or their counsel. The Board shall not utilize committees of the Board (including an “executive” or similar committee) for the purpose of discriminating against the Investor Designee or undermining the purpose of this Agreement. (g) While the Investor Designee serves as a director of the Board, the Investor Designee shall receive compensation (including equity based compensation, if any) for Board and committee meetings attended, an annual retainer, benefits (including expense reimbursements), director and officer insurance and any indemnity and exculpation arrangements on the same basis as all other non-employee directors of the Company. (h) During the Standstill Period (as defined below), the Company shall not adopt a Rights Plan unless the “Acquiring Person” definition exempts the Investors up to a beneficial ownership in the aggregate of the then-outstanding shares of Common Stock that is equal to the Ownership Cap (as defined below). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan,” “stockholder rights plan,” “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any other security or device that may be issued to stockholders of the Company, other than ratably to all stockholders of the Company).
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon The Investor shall be entitled to nominate one individual (an “Investor Designee”) to serve as a director on the execution and delivery Board of this Agreement, the Board:
(i) increases the size Directors of the Board by Company (the “Board”) for one director;
three-year term (ii) appoints the Investor Designee to fill the vacancy resulting from the increase in the size of the Board pursuant to the foregoing clause (i“Term”); and
(iii) nominates the Investor Designee for election to the Board , commencing at the Company’s 2021 annual meeting 2024 Annual Meeting of stockholders (the “2021 Annual Meeting”), with a term expiring at the Company’s 2022 annual meeting of stockholders (the “2022 Annual Meeting”).
(b) Simultaneous with the execution Stockholders. The Board and delivery of this Agreement and as a condition its committees shall take all necessary actions to the Investors’ rights and the Board’s obligations herein, the Investor Designee has executed and delivered to the Company a resignation letter in the form attached hereto as Exhibit A.
(c) The Company shall, with respect to the 2021 Annual Meeting, (i) include the Investor Designee in its proxy statement and proxy card the slate of nominees recommended to the Company’s stockholders for election as a director nominee of the BoardCompany at the 2024 Annual Meeting of Stockholders. The Company will recommend, (ii) recommend support and solicit proxies for the election of the Investor Designee to the Board to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Investor Designee to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees (the foregoing clauses (ii) has historically recommended, supported and (iii), the “Election Support Efforts”). In connection with the foregoing, the Investor Designee hereby consents to be named as a nominee of the Company for election to the Board in any applicable proxy statement, proxy card or other solicitation materials of the Company.
(d) For any Annual Meeting subsequent to the 2021 Annual Meeting and as long as the Investor Designee is on the Board, the Company shall irrevocably notify the Investors in writing (a “Renomination Notice”), no less than fifty-five (55) calendar days before the last day of the advance notice window for director nominations at such Annual Meeting pursuant to the Company’s Amended and Restated By-Laws (as amended from time to time, the “Bylaws”), whether the Company intends to renominate the Investor Designee for election to the Board at such Annual Meeting. If the Investor Designee has received a Renomination Notice, the Investor Designee shall have ten (10) Business Days from delivery of such Renomination Notice (the “Renomination Response Period”) to notify the Company in writing of his consent to such renomination (a “Renomination Consent”). If the Investor Designee is renominated for election at an Annual Meeting pursuant to a Renomination Notice and has delivered a corresponding Renomination Consent, the Company shall nominate the Investor Designee for election to the Board at such Annual Meeting and shall provide full Election Support Efforts solicited proxies for the election of the Company’s director nominees. The Investor Designee. Notwithstanding anything will provide to the contrary contained hereinCompany, if in writing, the Company renominates information about the Investor Designee that is required by applicable law for election inclusion in the Company’s proxy materials for the 2024 Annual Meeting of Stockholders promptly after the Company requests such information from the Investor, and will cause such Investor Designee to submit on a timely basis to the Board at Company a completed and executed questionnaire in the 2022 Annual Meeting and form that the Company provides to its outside directors generally.
(b) In the event that, during the Term, the Investor Designee delivers resigns from his or her seat on the Board or is removed or otherwise or ceases to be a corresponding Renomination Consent during director (whether as a result of his or her death, disability, disqualification, or otherwise) the Renomination Response Period, then the Terminable Date under Section 11(a) Investor shall be extended entitled to promptly designate another Investor Designee to fill the date vacancy and the Company will take all necessary and desirable actions within its control such that is forty-five (45) calendar days before the last day of the advance notice window for director nominations at the Company’s 2023 annual meeting of stockholders pursuant to the Bylawssuch vacancy shall be filled with such successor Investor Designee.
(ec) Effective upon Notwithstanding the execution provisions of Section 1(a) and delivery of this Agreement1(b), the Board duly appoints the Investor shall not be entitled to nominate any individual as an Investor Designee to serve on the Audit Committee if a majority of the Board until the Termination Date, unless otherwise agreed by the Investors in writing. In addition, upon the reasonable request of the Investor Designee, the Board shall consult with the Investor Designee regarding the appointment of the Investor Designee to one or more other committees of the Board, with the understanding that the intent of the parties is that the Investor Designee shall be considered for membership on committees of the Board in the same manner as other members of the Board, subject to Section 1(f). The Investor Designee shall have the same right as other disinterested members of the Board (or the nominating committee thereof) reasonably and in good faith determine, after consultation with the Company’s outside legal counsel and upon written advice of such counsel, that such Person would not be qualified to be invited to attend meetings of committees serve as a director of the Board Company under any applicable law (including requirements of which fiduciary duties under applicable law), rule or regulation, rule of the Investor Designee is not a member, and to receive the same information as other directors, subject to Section 1(f). The Investor Designee shall receive prior written notice of any proposal to form a new committee and shall be considered for appointment to any new committee on the same basis as the other Board members, taking into consideration applicable skill sets and the number of committees stock exchange on which the all directorsCommon Stock is listed, including the Investor Designeeorganizational documents of the Company, already serve.
(f) The Investors agree that or any policy or guidelines previously approved by the Board, but only if a direct or indirect purpose of any such policy or guideline is not to obstruct the Investor’s right to designate an individual as a nominee to the Board or any committee thereof, in the good faith exercise of its fiduciary duties (without the Investor Designee voting on such determination), shall have the right to recuse the Investor Designee from any portion of a Board or committee meeting and may restrict access to information of the Company rights under this letter. Notwithstanding anything set forth herein to the extent contrary, a person’s status as a director, officer, employee or affiliate of any Investor or such person’s service on the Board or any such committee is deliberating and/or taking action with respect to (i) the enforcement or performance board of this Agreement, (ii) the Investor Designee’s failure to comply with the Charter, the Bylaws or applicable Company Policies, (iii) any demands made by any of the Investors or any of their respective Affiliates with respect to the Company if such demand is coupled expressly with the threat to take any of the actions prohibited in Sections 3(a) through 3(k) or (iv) any proposed transaction between the Company and any of the Investors or any of their respective Affiliates or any other matter where the interests of the Investors or any of their respective Affiliates are directly adverse company shall not cause such Person to those of the Company. For the avoidance of doubt, (A) consistent with his fiduciary duties be deemed not qualified to serve as a director of the Company, except as required by applicable law or regulation or if such other company is engaged in competitive activities to the Company’s business. In the event the Board (or the nominating committee thereof) does not accept an Investor Designee as a result of such Investor Designee failing to meet the requirements set forth in this Section 1(c), the Investor shall have the right to recommend an additional Investor Designee in accordance with Section 1(a). The Company shall notify the Investor of any objection to an Investor Designee pursuant to this Section 1(c) sufficiently in advance of the date on which the proxy materials related to any such designee are to be mailed by the Company in connection with such election of directors, and in no event less than the first Business Day after such determination by the Board, so as to enable the Investor to propose a replacement Investor Designee in accordance with the terms of this letter.
(d) Each Party acknowledges that during his/her service on the Board the Investor Designee shall consider in good faith, to be governed by all of the same extent as any other director of the Companypolicies, recusal from any Board or committee meeting in the event there is any other actual or potential conflict of interest between the Investorsprocesses, on the one handprocedures, codes, rules, standards and the Company, on the other hand, and (B) the Board may restrict the Investor Designee’s access guidelines applicable to information of the Company to the same extent it would for any other director of the Company, in accordance with applicable law. The Company represents and warrants that all Company Policies currently in effect are publicly available on the Company’s website or have been provided to the Investors or their counsel. The Board shall not utilize committees members of the Board (including an collectively, the “executive” or similar committee) for Company Policies”), and will be required to adhere to the purpose of discriminating against the Investor Designee or undermining the purpose of this Agreement.
(g) While the Investor Designee serves as a director Company’s policies on confidentiality and communications imposed on all members of the Board, the Investor Designee shall receive compensation (including equity based compensation, if any) for Board and committee meetings attended, an annual retainer, benefits (including expense reimbursements), director and officer insurance and any indemnity and exculpation arrangements during their service on the same basis as all other non-employee directors of the CompanyBoard.
(h) During the Standstill Period (as defined below), the Company shall not adopt a Rights Plan unless the “Acquiring Person” definition exempts the Investors up to a beneficial ownership in the aggregate of the then-outstanding shares of Common Stock that is equal to the Ownership Cap (as defined below). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan,” “stockholder rights plan,” “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any other security or device that may be issued to stockholders of the Company, other than ratably to all stockholders of the Company).
Appears in 1 contract
Samples: Director Agreement (iBio, Inc.)
Board Composition and Related Matters. (a) Effective upon the execution and delivery of this Agreement, Prescience Partners irrevocably withdraws the Board:
(i) increases the size of the Board by one director;
(ii) appoints the Investor Designee to fill the vacancy resulting from the increase in the size of the Board pursuant to the foregoing clause (i); and
(iii) nominates the Investor Designee for election to the Board at the Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”), with a term expiring at the Company’s 2022 annual meeting of stockholders (the “2022 Annual Meeting”)Nomination Notice.
(b) Simultaneous with the execution and delivery of this Agreement and as a condition to the Investors’ Investor Group’s rights and the Board’s obligations hereinhereunder, the each Investor Group Designee has executed and delivered to the Company a resignation letter consent to be named by the Company as a nominee for election to the Board in the form attached hereto as Exhibit A.A (the “Nominee Consent”).
(c) The Each of the Investor Group Designees acknowledges and agrees that, upon appointment or election to the Board, he or she will be governed by the same protections and required to comply with the same obligations regarding confidentiality, conflicts of interest, related party transactions, fiduciary duties, codes of conduct, trading and disclosure policies, director resignation policy and other governance guidelines and policies of the Company as other directors on the Board, shall adhere to the Company’s Amended and Restated Articles of Incorporation, as amended (and as may be further amended from time to time, the “Charter”), the Company’s Amended and Restated Bylaws (and as may be further amended from time to time, the “Bylaws”) and the charters of the committees of the Board and shall be required to preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees.
(d) Effective upon the execution and delivery of this Agreement, the Board shall, with respect to the 2021 2018 Annual Meeting, (i) include designate each of the Initial Investor Designee Group Designees and Xxxxxxx X. Xxxxxx as the only three Class II director candidates for election to the Board in its the Company’s proxy statement and proxy card as a director nominee of the Boardcard, (ii) recommend to the shareholders of the Company the election of the Initial Investor Designee Group Designees and Xx. Xxxxxx as the only three Class II director candidates for election to the Board to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Investor Group Designees and Xx. Xxxxxx as the only three Class II director candidates for election to the Board.
(e) Notwithstanding the foregoing, in the event that the 2018 Annual Meeting is not held and concluded by June 17, 2019, (i) Xxxxxx X. Xxxxxx shall resign as a Class II Director on such date and the Board shall accept such resignation and (ii) each of the Initial Investor Group Designees shall be appointed to the Board as Class II directors on such date.
(f) Promptly following the election or appointment of Xx. Xxxxxxx Xxxxxx to the Board, the Board and all applicable committees of the Board shall take all necessary actions to appoint Xx. Xxxxxxx Xxxxxx as the Chair of the Board.
(g) In the event that the 2018 Annual Meeting is held and concluded on or before September 15, 2019, then:
(i) no incumbent Class III director shall stand for re-election as a Class III director at the 2019 Annual Meeting;
(ii) promptly following (but no later than five (5) Business Days after) the 2018 Annual Meeting, (A) Xxxxx X. Xxxxxxx shall resign as a Class III director and the Board shall accept such resignation, (B) the Board shall appoint the Final Investor Group Designee to the Board in as a manner no less rigorous Class III director and favorable than (C) and the manner in which Board shall appoint Xxxxx X. Xxxxxxx (the “Company Nominee”) to the Board as a Class III director;
(iii) promptly following the appointment of the Final Investor Group Designee and the Company supports its other nominees Nominee, the Company and the Prescience Point Parties shall identify a mutually agreed upon individual (the foregoing clauses “Mutual Designee”) to stand for election as a Class III director at the 2019 Annual Meeting; and
(iiiv) and the Board shall, with respect to the 2019 Annual Meeting, (iii)i) designate the Final Investor Group Designee, the “Election Support Efforts”). In connection with Company Nominee and the foregoing, Mutual Designee as the Investor Designee hereby consents to be named as a nominee of the Company only three Class III director candidates for election to the Board in any applicable the Company’s proxy statementstatement and proxy card, proxy card or other solicitation materials (ii) recommend to the shareholders of the CompanyCompany the election of the Final Investor Group Designee, the Company Nominee and the Mutual Designee to the Board as the only three Class III director candidates and (iii) solicit proxies in favor of the election of the Final Investor Group Designee, the Company Nominee and the Mutual Designee to the Board as the only three Class III director candidates.
(dh) For any In the event that the 2018 Annual Meeting subsequent is held after September 15, 2019, then:
(i) no incumbent Class III director shall stand for re-election as a Class III director at the 2019 Annual Meeting;
(ii) on September 15, 2019, the Board shall (A) appoint Xx. Xxxxxx to the 2021 Board as a Class III director, (B) increase the size of the Board by one seat in Class II and (C) appoint the Final Investor Group Designee to the Board as a Class II director;
(iii) with respect to the 2018 Annual Meeting and as long Meeting, the Board shall designate the Investor Group Designees as the Investor Designee is on the Board, the Company shall irrevocably notify the Investors in writing (a “Renomination Notice”), no less than fifty-five (55) calendar days before the last day of the advance notice window for only three Class II director nominations at such Annual Meeting pursuant to the Company’s Amended and Restated By-Laws (as amended from time to time, the “Bylaws”), whether the Company intends to renominate the Investor Designee candidates for election to the Board at such Annual Meeting. If in the Company’s proxy statement and proxy card, recommend to the shareholders of the Company the election of the Investor Designee has received a Renomination Notice, Group Designees to the Board as the only three Class II director candidates and solicit proxies in favor of the election of the Investor Designee shall have ten Group Designees to the Board as the only three Class II director candidates;
(10iv) promptly following (but no later than five (5) Business Days from delivery of after) the 2018 Annual Meeting, (A) Mr. Papasan shall resign as a Class III director and the Board shall accept such Renomination Notice resignation, (B) the “Renomination Response Period”) to notify Board shall appoint the Company Nominee to the Board as a Class III director and (C) the Board shall reduce the size of the Board by one seat in writing Class II;
(v) promptly following the appointment of his consent the Company Nominee to such renomination (the Board as a “Renomination Consent”). If the Investor Designee is renominated for election at an Annual Meeting pursuant to a Renomination Notice and has delivered a corresponding Renomination ConsentClass III director, the Company and the Prescience Point Parties shall nominate promptly identify the Investor Mutual Designee to stand for election as a Class III director at the 2019 Annual Meeting; and
(vi) the Board shall, with respect to the 2019 Annual Meeting, (A) designate each of Xx. Xxxxxx, the Company Nominee and the Mutual Designee as the only three Class III director candidates for election to the Board at such Annual Meeting in the Company’s proxy statement and shall provide full Election Support Efforts for proxy card, (B) recommend to the shareholders of the Company the election of Xx. Xxxxxx, the Company Nominee and the Mutual Designee to the Board as the only three Class III director candidates and (C) solicit proxies in favor of the election of Xx. Xxxxxx, the Company Nominee and the Mutual Designee to the Board as the only three Class III director candidates.
(i) Until the Termination Date (defined below), each of the Investor DesigneeGroup Designees shall be entitled to serve on at least one committee of the Board.
(j) Promptly following the resignation of Mr. Papasan, the Board and all applicable committees of the Board shall take all necessary actions to appoint Xxxxxxx X. Xxxxx to serve as Chair of the corporate governance and nominating committee of the Board (the “Nominating Committee”).
(k) Promptly following Xx. Notwithstanding anything to the contrary contained herein, if the Company renominates the Investor Designee for Xxxxxx’x appointment or election to the Board at the 2022 Annual Meeting and the Investor Designee delivers a corresponding Renomination Consent during the Renomination Response Period, then the Terminable Date under Section 11(a) shall be extended to the date that is forty-five (45) calendar days before the last day of the advance notice window for director nominations at the Company’s 2023 annual meeting of stockholders pursuant to the Bylaws.
(e) Effective upon the execution and delivery of this AgreementBoard, the Board duly appoints and all applicable committees of the Investor Designee Board shall take all necessary actions to appoint Xx. Xxxxxx to serve on the Audit Committee of the Board until the Termination Date, unless otherwise agreed by the Investors in writing. In addition, upon the reasonable request of the Investor Designee, the Board shall consult with the Investor Designee regarding the appointment of the Investor Designee to one or more other committees audit committee of the Board, with the understanding that the intent of the parties is that the Investor Designee shall be considered for membership on committees of the Board in the same manner as other members of the Board, subject to Section 1(f). The Investor Designee shall have the same right as other members of the Board to be invited to attend meetings of committees of the Board of which the Investor Designee is not a member, and to receive the same information as other directors, subject to Section 1(f). The Investor Designee shall receive prior written notice of any proposal to form a new committee and shall be considered for appointment to any new committee on the same basis as the other Board members, taking into consideration applicable skill sets and the number of committees on which the all directors, including the Investor Designee, already serve.
(fl) The Investors agree that the Board or any committee thereof, in the good faith exercise of its fiduciary duties (without the Consistent with each Investor Designee voting on such determination), shall have the right to recuse the Investor Designee from any portion of a Board or committee meeting and may restrict access to information of the Company to the extent the Board or any such committee is deliberating and/or taking action with respect to (i) the enforcement or performance of this Agreement, (ii) the Investor Group Designee’s failure to comply with the Charter, the Bylaws or applicable Company Policies, (iii) any demands made by any of the Investors or any of their respective Affiliates with respect to the Company if such demand is coupled expressly with the threat to take any of the actions prohibited in Sections 3(a) through 3(k) or (iv) any proposed transaction between the Company and any of the Investors or any of their respective Affiliates or any other matter where the interests of the Investors or any of their respective Affiliates are directly adverse to those of the Company. For the avoidance of doubt, (A) consistent with his fiduciary duties as a director of the Company, the each Investor Group Designee shall consider in good faith, to the same extent as any other director of the Company, recusal from any Board or committee meeting in the event there is any other actual or potential conflict of interest between the InvestorsInvestor Group or such Investor Group Designee, on the one hand, and the Company, on the other hand.
(m) The Prescience Point Parties agree that there shall be no contracts, and (B) the Board may restrict the Investor Designee’s access to information of the Company to the same extent it would for any other director of the Companyplans or arrangements, written or otherwise, in accordance with applicable law. The Company represents and warrants that all Company Policies currently in effect are publicly available on during the Company’s website or have been provided to the Investors or their counsel. The Board shall not utilize committees of the Board (including an “executive” or similar committee) for the purpose of discriminating against the Investor Designee or undermining the purpose term of this Agreement, between any members of the Prescience Point Parties and any of the Investor Group Designees providing for any compensation, reimbursement of expenses or indemnification of any of Investor Group Designees in connection with or related to any Investor Group Designee’s service on the Board.
(gn) While Until the Termination Date and as long as the Prescience Point Parties’ Net Long Position exceeds 5.0% of the outstanding shares of Company common stock, par value $0.001 per share (“Common Stock”) (subject to adjustment for stock splits, reclassifications, combinations and similar adjustments), in the event that any of the Investor Designee serves Group Designees is no longer able to serve as a director of the BoardCompany due to death or disability, the Prescience Point Parties shall be entitled to designate, subject to the approval of the Nominating Committee, a candidate for replacement of such Investor Group Designee (such replacement, a “Replacement Designee”). Any Replacement Designee shall receive compensation (including equity based compensationx) qualify as an Independent Director and (y) have relevant industry expertise. The Nominating Committee shall, if anyin good faith and consistent with its fiduciary duties, approve or deny any candidate for Replacement Designee within ten Business Days after such candidate has: (i) for Board and committee meetings attended, an annual retainer, benefits successfully completed a customary background check; (including expense reimbursements), director and officer insurance and any indemnity and exculpation arrangements on ii) completed a satisfactory interview with the same basis as all other non-employee directors of the Company.
Nominating Committee; (hiii) During the Standstill Period (as defined below), provided the Company shall not adopt with (A) a Rights Plan unless the “Acquiring Person” definition exempts the Investors up to a beneficial ownership completed director questionnaire (in the aggregate of the then-outstanding shares of Common Stock that is equal form to the Ownership Cap (as defined below). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan,” “stockholder rights plan,” “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any other security or device that may be issued to stockholders of the Company, other than ratably to all stockholders of provided by the Company), (B) an executed Nominee Consent, and (C) such other information as may be reasonably requested by the Company; and (iv) taken all necessary action not be considered to be “overboarded” under the applicable policies of Institutional Shareholder Services, Inc. (“ISS”) and Glass Lewis & Co., LLC (“Glass Lewis”) as a result of his or her election to the Board. In the event the Nominating Committee declines to approve a candidate for Replacement Designee, the Prescience Point Parties 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 appoint such Replacement Designee to the Board. Upon his or her appointment to the Board, such Replacement Designee shall be deemed to be an Investor Group Designee for all purposes under this Agreement.
Appears in 1 contract
Board Composition and Related Matters. (a) Effective upon Simultaneous with the execution and delivery of this Agreement, the Board:
(i) increases the size Investor Group shall immediately cease any and all efforts, direct or indirect, in furtherance of the Board by one director;
(ii) appoints the Investor Designee any solicitation, including any negative solicitation efforts, relating to fill the vacancy resulting from the increase in the size of the Board pursuant to the foregoing clause (i); and
(iii) nominates the Investor Designee for election to the Board at the Company’s 2021 annual meeting of stockholders (the “2021 Annual Meeting”), with a term expiring at the Company’s 2022 annual meeting of stockholders Annual General Meeting (the “2022 Annual General Meeting”).
(b) Simultaneous with the execution and delivery of this Agreement and as a condition to Agreement, Mxxxxxx X. Xxxxxxx (the Investors’ rights and the Board’s obligations herein, the “Investor Designee Group Designee”) has executed and delivered to the Company a an irrevocable conditional letter of resignation letter from the Board in the form attached hereto as Exhibit A.A (the “Resignation Letter”).
(c) The Company shall, with respect to the 2021 Annual Meeting, (i) include the Investor Designee in its proxy statement and proxy card as a director nominee of the Board, (ii) recommend the election of the Investor Designee to the Board to the stockholders of the Company and (iii) solicit proxies in favor of the election of the Investor Designee to the Board in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees (the foregoing clauses (ii) and (iii), the “Election Support Efforts”). In connection with the foregoing, the Investor Designee hereby consents to be named as a nominee of the Company for election to the Board in any applicable proxy statement, proxy card or other solicitation materials of the Company.
(d) For any Annual Meeting subsequent to the 2021 Annual Meeting and as long as the Investor Designee is on the Board, the Company shall irrevocably notify the Investors in writing (a “Renomination Notice”), no less than fifty-five (55) calendar days before the last day of the advance notice window for director nominations at such Annual Meeting pursuant to the Company’s Amended and Restated By-Laws (as amended from time to time, the “Bylaws”), whether the Company intends to renominate the Investor Designee for election to the Board at such Annual Meeting. If the Investor Designee has received a Renomination Notice, the Investor Designee shall have ten (10) Business Days from delivery of such Renomination Notice (the “Renomination Response Period”) to notify the Company in writing of his consent to such renomination (a “Renomination Consent”). If the Investor Designee is renominated for election at an Annual Meeting pursuant to a Renomination Notice and has delivered a corresponding Renomination Consent, the Company shall nominate the Investor Designee for election to the Board at such Annual Meeting and shall provide full Election Support Efforts for the election of the Investor Designee. Notwithstanding anything to the contrary contained herein, if the Company renominates the Investor Designee for election to the Board at the 2022 Annual Meeting and the Investor Designee delivers a corresponding Renomination Consent during the Renomination Response Period, then the Terminable Date under Section 11(a) shall be extended to the date that is forty-five (45) calendar days before the last day of the advance notice window for director nominations at the Company’s 2023 annual meeting of stockholders pursuant to the Bylaws.
(e) Effective upon the execution and delivery of this Agreement, the Board duly appoints shall increase the Investor Designee to serve on the Audit Committee size of the Board until the Termination Date, unless otherwise agreed by the Investors in writing. In addition, upon the reasonable request of from five to six directors and appoint the Investor Group Designee, Mxxxxxx X. Xxxxxxx to the Board shall consult with to fill the Investor Designee regarding vacancy resulting from the appointment of increase in the Investor Designee to one or more other committees of the Board, with the understanding that the intent of the parties is that the Investor Designee shall be considered for membership on committees size of the Board in with Mx. Xxxxxxx to serve as a Class I director with a term expiring at the same manner as other members of Company’s 2023 Annual General Meeting (the Board, subject to Section 1(f“2023 Annual General Meeting”). The Investor Designee shall have the same right as other members of the Board to be invited to attend meetings of committees of the Board of which the Investor Designee is not a member, and to receive the same information as other directors, subject to Section 1(f). The Investor Designee shall receive prior written notice of any proposal to form a new committee and shall be considered for appointment to any new committee on the same basis as the other Board members, taking into consideration applicable skill sets and the number of committees on which the all directors, including the Investor Designee, already serve.
(fd) The Investors Investor Group and the Investor Group Designee agree that, in the Investor Group Designee’s capacity as a director of the Company, the Investor Group Designee shall, in addition to all applicable duties as a matter of Cayman Islands, comply with the terms of the Company’s Memorandum and Articles of Association (as may be amended, restated, supplemented and/or otherwise modified from time to time, the “Articles”), committee charters, corporate governance, ethics, conflict of interest, confidentiality, share ownership and trading policies and guidelines and similar governance documents that are applicable to all of the Company’s non-employee directors.
(e) The Investor Group and the Investor Group Designee agree that the Board or any committee thereof, in the good faith exercise of its fiduciary duties (without and other duties, may require the Investor Group Designee voting on such determination), shall have the right to recuse the Investor Designee themselves from any portion of a Board or committee meeting meeting, and may restrict access to information of the Company Company, to the extent the Board or any such committee is deliberating and/or taking action with respect to relating to: (i) the enforcement or performance of this Agreement, including the interpretation and enforcement thereof; (ii) the Investor Designee’s failure to comply with the Charter, the Bylaws or applicable Company Policies, (iii) any demands demand made by any member of the Investors Investor Group or any of their respective Affiliates with respect to the Company or Associates if such demand is coupled coupled, expressly or implied, with the threat to take any of the actions prohibited in Sections 3(a) through 3(k) 3(l); or (iviii) any proposed transaction between the Company and any member of the Investors Investor Group, or any of their respective Affiliates or any other matter where the interests of the Investors or any of their respective Affiliates are directly adverse to those of the CompanyAssociates. For the avoidance of doubt, the Investor Group and Investor Group Designee acknowledge and agree that: (A) consistent with his fiduciary and other duties as a director of the Company, the Investor Group Designee shall is obligated to consider in good faith, to the same extent as any other director of the Company, recusal from any Board or committee meeting in the event there is any other actual or potential conflict of interest between the InvestorsInvestor Group or the Investor Group Designee, on the one hand, and the Company, on the other hand, ; and (B) the Board may restrict the Investor Group Designee’s access to information of the Company to the same extent it would for any other director of the Company, in accordance with applicable law. The Company represents .
(f) Other than as agreed to by the Company, the Investor Group and warrants the Investor Group Designee agree that all Company Policies currently there shall be no contracts, plans or arrangements, written or otherwise, in effect are publicly available on during the Company’s website or have been provided to the Investors or their counsel. The Board shall not utilize committees of the Board (including an “executive” or similar committee) for the purpose of discriminating against the Investor Designee or undermining the purpose term of this Agreement, between any members of the Investor Group and the Investor Group Designee providing for any compensation, reimbursement of expenses or indemnification of the Investor Group Designee solely in connection with or related to such Investor Group Designee’s service on the Board.
(g) While The Investor Group acknowledges and agrees that if at any time during the term of this Agreement, the Investor Group’s aggregate Net Long Position falls below the lesser of 10.0% of the Company’s then outstanding ordinary shares, par value $0.0001 per share (the “Ordinary Shares”) and 6,085,150 shares of Ordinary Shares (subject to adjustment for share sub-divisions, reclassifications, consolidations and similar adjustments) (such lesser amount, the “Ownership Minimum”), the Investor Group Designee serves shall be obligated to immediately tender his resignation pursuant to the Resignation Letter (it being understood that the Board shall have the right to decline the resignation). The Investor Group shall provide written notice to the Company within two days following the date on which the Investor Group’s Net Long Position falls below the Ownership Minimum. The Investor Group shall provide written notice to the Company within two days following the end of each calendar quarter regarding the Investor Group’s aggregate Net Long Position (it being understood that, notwithstanding anything to the contrary in this Agreement, the Company’s sole remedy should the Investor Group fail to provide such notice will be the right to request that the Investor Group promptly provide such notice), provided, however, that such notice shall be deemed provided so long as the Investor Group continues to have filed a statement of beneficial ownership on Schedule 13D pursuant to the Exchange Act with respect to the Company.
(h) The Company shall hold the 2022 Annual General Meeting on August 24, 2022. The only matters to be considered at the 2022 Annual General Meeting will be (i) the election of one director nominee, Dxxxx Xxxxxxx, to the Board, (ii) the ratification of the appointment of Ernst & Young Associates LLP as the independent registered public accounting firm of the Company for the fiscal year ending March 31, 2023, and (iii) adoption by way of special resolution of the Seventh Amended and Restated Memorandum and Articles of Association of the Company in the form agreed to by the parties, which, for the avoidance of doubt, will include, among other amendments, an amendment that will require the Company to hold an Annual General Meeting each calendar year.
(i) The Investor Group Designee will be entitled to the same director benefits as other non-employee members of the Board, the Investor Designee shall receive including (i) compensation (including equity based compensation, if any) for Board and committee meetings attended, an annual retainer, benefits (including expense reimbursements), such director’s service as a director and officer insurance and any indemnity and exculpation arrangements reimbursement of such director’s expenses on the same basis as all other non-employee directors of the Company.
; (hii) During equity-based compensation grants and other benefits, if any, on the Standstill Period same basis as all other non-employee directors of Company; and (iii) the same rights of indemnification and directors’ and officers’ liability insurance coverage as defined below), the other non-employee directors of the Company shall not adopt a Rights Plan unless the “Acquiring Person” definition exempts the Investors up as such rights may exist from time to a beneficial ownership in the aggregate of the then-outstanding shares of Common Stock that is equal to the Ownership Cap (as defined below). The term “Rights Plan” shall mean any plan or arrangement of the sort commonly referred to as a “rights plan,” “stockholder rights plan,” “shareholder rights plan” or “poison pill” that is designed to increase the cost to a potential acquirer of exceeding the applicable ownership thresholds through the issuance of new rights, common stock or preferred shares (or any other security or device that may be issued to stockholders of the Company, other than ratably to all stockholders of the Company)time.
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