Board Designee. (a) Sailing shall have the right to nominate pursuant to the terms and subject to the conditions of this Section 5.2 one nominee to the Board of Directors (the “Board Designee”). Such nominee shall (i) be qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements, (ii) meet the independence requirements with respect to the Company of Section 5605(a)(2) of the Rules of the Nasdaq Stock Market or any other stock exchange on which the Common Stock may be listed in the future, and (iii) be acceptable to the Board of Directors (including the Nominating and Corporate Governance Committee of the Board of Directors) in its good faith discretion. The Board of Directors and the appropriate committees of the Board of Directors shall conduct the consideration of the qualifications, suitability and independence of a Board Designee, and make any determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. Sailing will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Corporate Governance Committee may reasonably request; provided, that in each such case, all interviews, investigations and information is generally required to be delivered to the Company by the outside directors of the Company. As of the date hereof, Sailing has designated Bosun S. Xxx as a nominee for Board Designee and therefore, no action by the Company and no adjustment to the Board of Directors will be required as of the Closing. Provided that the Board Designee then meets the requirements set forth in the second sentence of this Section 5.2(a) and the Purchasers, together with their Affiliated Entities, collectively, then Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), the Company shall nominate the Board Designee for re-election as a director at the Company’s 2018 annual meeting of stockholders as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its best efforts to cause the election of the Board Designee to the Board of Directors (including providing the same level of support as is provided for other nominees of the Company to the Board of Directors). (b) The Board Designee shall be subject to the policies and requirements of the Company and its Board of Directors, including the corporate governance guidelines of the Board of Directors and the Company’s Code of Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board of Directors and in a manner that does not discriminate against Sailing or its Affiliates. The Company shall compensate the Board Designee, reimburse their expenses, indemnify them and provide the Board Designee with director and officer insurance to the same extent it compensates, reimburses, indemnifies and provides insurance for the outside members of the Board of Directors pursuant to its organizational documents, applicable law or otherwise (c) The rights of Sailing pursuant to this Section 5.2 shall be specific to Sailing and shall be non-transferable. (d) If, for any reason, the Board Designee is not a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), Sailing shall have the right to appoint an observer to receive notice of, and the right to participate as an observer in, meetings of the Board of Directors and to receive the same information that is provided to members of the Board of Directors in connection with such meetings, except that the observer may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, or for other similar reasons. Upon reasonable notice and at a scheduled meeting of the Board or such other time, if any, as the Board of Directors may determine in its sole discretion, such representative may address the Board of Directors with respect to Sailing’s concerns regarding significant business issues facing the Company. The observer agrees that any information provided to or learned by it in connection with its rights under this provision shall be treated as confidential information by the observer and shall not be disclosed except to others with a need to know and who are also subject to confidentiality provisions or upon the written approval of the Company or as may be required by law or regulatory or legal process. (e) All obligations of the Company pursuant to this Section 5.2 shall terminate upon the first to occur of: (i) such time as the Purchasers, together with their Affiliated Entities, collectively, do not Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), (ii) the Company sells all or substantially all of its assets, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s voting stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction, (v) Sailing irrevocably waives and terminates all of its rights under this Section 5.2, (vi) the Board Designee is removed from the Board of Directors for cause by the stockholders of the Company or (vii) the Company delivers written notice that a Purchaser has breached the terms of this Agreement in any material respect and such Purchaser does not cure any such breach within 10 days of such notice, provided that no cure period shall apply if such breach is of a nature which cannot be cured. The date of termination pursuant to this clause (e) of the obligations of the Company pursuant to this Section 5.2 is sometimes referred to herein as the “Designee Termination Date”).
Appears in 1 contract
Samples: Securities Purchase Agreement (Cellular Biomedicine Group, Inc.)
Board Designee. (a) Sailing The Purchaser shall have the right to nominate pursuant to the terms and subject to the conditions of this Section 5.2 5.3 one nominee to the Board of Directors (the “Board Designee”), to serve as a director. The initial Board Designee shall be Xxxxxxxx Xxxxxxxx, to be appointed as soon as practicable after the Closing Date to fill a vacancy on the Board of Directors and to be nominated for election to the Board of Directors of the Company at the annual meeting to be held in 2013, as applicable in the event that the class to which the Board Designee is appointed stands for election in 2013 and in all events to be named as a director in the Company’s proxy statement in connection with the annual meeting to be held in 2013. Such nominee shall (i) be qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements, (ii) meet the independence requirements with respect have submitted to and completed to the Company of Section 5605(a)(2) reasonable satisfaction of the Rules Board of Directors (including the Nominating Committee of the Nasdaq Stock Market or any other stock exchange on which the Common Stock may be listed in the futureBoard of Directors) a customary background check, and (iii) be acceptable to the Board of Directors (including the Nominating and Corporate Governance Committee of the Board of Directors) in its good faith discretion. The Board of Directors and the appropriate committees of the Board of Directors shall conduct the consideration of the qualifications, suitability and independence of a Board Designee, and make any Table of Contents determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. Sailing will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Corporate Governance Committee may reasonably request; provided, that in each such case, all interviews, investigations and information is generally required to be delivered to the Company by the outside directors of the Company. As of the date hereof, Sailing has designated Bosun S. Xxx as a nominee for Board Designee and therefore, no action by the Company and no adjustment to the Board of Directors will be required as of the Closing. Provided that the Board Designee then meets the requirements set forth in the second sentence of this Section 5.2(a5.3(a) and the Purchasers, together with their Affiliated Entities, collectively, then Own Purchaser Beneficially Owns at least 171,432 10% of the then outstanding shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like)Stock, the Company Company’s Nominating Committee, subject to applicable fiduciary obligations, shall nominate the Board Designee for re-election as a director at the Company’s 2018 annual meeting end of stockholders each term of such Board Designee as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its reasonable best efforts to cause the election of the Board Designee to the Board of Directors (including providing the same level of support as is provided for other nominees of the Company to the Board of Directors). In the event that the Board Designee ceases to be a member of the Board of Directors, so long as the Purchaser Beneficially Owns at least 10% of the then outstanding shares of Common Stock, the Purchaser may select another person as a nominee for Board Designee to fill the vacancy created thereby, if any, and, if the Board of Directors determines that such nominee meets the criteria set forth in the second sentence of this Section 5.3(a), such nominee shall become the Board Designee and shall be appointed to fill such vacancy. The Purchaser shall exercise its nomination right set forth herein by written notice to the Company, said notice to identify the Board Designee and provide such information regarding the Board Designee as may be necessary or advisable for the Board of Directors and Nominating Committee of the Board of Directors to make the determination set forth above.
(b) The Board Designee shall be subject to the policies and requirements of the Company and its Board of Directors, including the corporate governance guidelines of the Board of Directors and the Company’s Code of Ethics, in a manner consistent with the application of such policies and requirements to other members of the Board of Directors and in a manner that does not discriminate against Sailing or its Affiliatesthe Purchaser. The Company shall compensate the Board Designee, reimburse their expenses, indemnify them and provide the Board Designee with director and officer insurance to the same extent it compensates, reimburses, indemnifies and provides insurance for the outside members of the Board of Directors pursuant to its organizational documents, applicable law or otherwise.
(c) The rights of Sailing the Purchaser pursuant to this Section 5.2 5.3 shall be specific to Sailing the Purchaser and shall be non-transferable.
(d) If, for any reason, the Board Designee is not a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), Sailing shall have the right to appoint an observer to receive notice of, and the right to participate as an observer in, meetings of the Board of Directors and to receive the same information that is provided to members of the Board of Directors in connection with such meetings, except that the observer may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, or for other similar reasons. Upon reasonable notice and at a scheduled meeting of the Board or such other time, if any, as the Board of Directors may determine in its sole discretion, such representative may address the Board of Directors with respect to Sailing’s concerns regarding significant business issues facing the Company. The observer agrees that any information provided to or learned by it in connection with its rights under this provision shall be treated as confidential information by the observer and shall not be disclosed except to others with a need to know and who are also subject to confidentiality provisions or upon the written approval of the Company or as may be required by law or regulatory or legal process.
(e) All obligations of the Company pursuant to this Section 5.2 5.3 shall terminate upon the first to occur of: (i) such time as the Purchasers, together with their Affiliated Entities, collectively, do Purchaser does not Beneficially Own at least 171,432 10% of the then outstanding shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like)Stock, (ii) the Company sells all or substantially all of its assets, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s voting stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transactiontransaction Table of Contents (the events described in clauses (ii), (iii) and (iv) being hereinafter referred to as a “Change of Control”), (v) Sailing the Purchaser irrevocably waives and terminates all of its rights under this Section 5.25.3, (vi) the Board Designee is removed from the Board of Directors for cause by the stockholders of the Company or (vii) the Company delivers written notice that a the Purchaser has breached the terms of this Agreement in any material respect and such the Purchaser does not cure any such breach within 10 days of such notice, provided that no cure period shall apply if such breach is of a nature which cannot be cured. The date of termination pursuant to this clause (ed) of the obligations of the Company pursuant to this Section 5.2 5.3 is sometimes referred to herein as the “Designee Termination Date”).
Appears in 1 contract
Board Designee. .
(a) Sailing Sponsor shall have the right to nominate pursuant to the terms and subject to the conditions of this Section 5.2 5.5 one nominee to the Company’s Board of Directors (the “Board Designee”). Such At the meeting of the Board of Directors scheduled for January 31, 2007, or within two months thereafter, the Company shall appoint the Board Designee to the Board of Directors and shall, if necessary, expand its Board of Directors by one member to create a vacancy for such purpose; provided, however, that no such appointment shall be required unless such nominee shall (i) be qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements, (ii) meet the independence requirements with respect to the Company of Section 5605(a)(24200(a)(15) of the Rules of the Nasdaq Stock Market or any other stock exchange on which the Common Stock may be listed in the futuresuccessor thereto, and (iii) be acceptable to the Board of Directors (including the Nominating and Corporate Governance and Nominating Committee of the Board of Directors) in its good faith discretion. The Board of Directors and the appropriate committees As of the Board of Directors shall conduct date hereof, the consideration of the qualifications, suitability and independence of Sponsor has designated Xxxxxxx Xxxxx as a nominee for Board Designee, and make any determinations with respect thereto, in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. Sailing The Sponsor will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Corporate Governance and Nominating Committee may reasonably request; provided, that in each such case, all interviews, investigations and information is generally required to be delivered to the Company by the outside directors of the Company. As of the date hereof, Sailing has designated Bosun S. Xxx as a nominee for Board Designee and therefore, no action by the Company and no adjustment to the Board of Directors will be required as of the Closing. Provided that the Board Designee then meets the requirements set forth in the second sentence of this Section 5.2(a5.5(a) and the Sponsor Purchasers, together with their Affiliated Entities, collectively, then Own at least 171,432 shares $350 million principal amount of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like)Notes, the Company shall nominate the Board Designee for re-election as a director at the Company’s 2018 annual meeting end of stockholders each term of such Board Designee as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its best efforts Directors. In the event that the Board Designee ceases to cause the election be a member of the Board of Directors, so long as the Sponsor Purchasers, collectively, Own at least $350 million principal amount of the Notes, Sponsor may select another person as a nominee for Board Designee to fill the vacancy created thereby and, if the Board of Directors determines that such nominee meets the criteria set forth in the second sentence of this Section 5.5(a), such nominee shall become the Board Designee and shall be appointed to fill such vacancy. It shall be a condition to the appointment or nomination for election or re-election of any Board Designee that such Board Designee tender a conditional resignation letter prior to his or her appointment or nomination for election or re-election to the Board of Directors (including providing such Board Designee’s irrevocable offer of resignation from the same level Board of support Directors effective upon the Designee Termination Date or upon such other circumstances as is may be provided for other nominees under the corporate governance policies or guidelines of the Company to or the Board of Directors); provided, that the Board Designee shall not be required to submit his or her conditional resignation from the Board of Directors under circumstances provided for under any such guideline added after the date hereof which would in its practical application discriminatorily affect only the Sponsor Purchasers and their Affiliates and which is not reasonably supported by a rational legal or business purpose unrelated to the Sponsor Purchasers’ investment in the Securities (except as may be required by legal - 17 - or regulatory requirements) other than discriminatory treatment of the Sponsor Purchasers and their Affiliates.
(b) The Board Designee shall be subject to the policies and requirements of the Company and its Board of Directors, including the corporate governance guidelines Corporate Governance Guidelines of the Board of Directors and the Company’s Code Standards of EthicsBusiness Conduct, in a manner consistent with the application of such policies and requirements to other members of the Board of Directors and in a manner that does not discriminate against Sailing or its AffiliatesDirectors. The Company shall compensate indemnify the Board Designee, reimburse their expenses, indemnify them Designee and provide the Board Designee with director and officer insurance to the same extent it compensates, reimburses, indemnifies and provides insurance for the outside members of the Board of Directors pursuant to its organizational documents, applicable law or otherwise.
(c) The rights of Sailing pursuant to this Section 5.2 shall be specific to Sailing and shall be non-transferable.
(d) If, for any reason, the Board Designee is not a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), Sailing shall have the right to appoint an observer to receive notice of, and the right to participate as an observer in, meetings of the Board of Directors and to receive the same information that is provided to members of the Board of Directors in connection with such meetings, except that the observer may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, or for other similar reasons. Upon reasonable notice and at a scheduled meeting of the Board or such other time, if any, as the Board of Directors may determine in its sole discretion, such representative may address the Board of Directors with respect to Sailing’s concerns regarding significant business issues facing the Company. The observer agrees that any information provided to or learned by it in connection with its rights under this provision shall be treated as confidential information by the observer and shall not be disclosed except to others with a need to know and who are also subject to confidentiality provisions or upon the written approval of the Company or as may be required by law or regulatory or legal process.
(e) All obligations of the Company pursuant to this Section 5.2 5.5 shall terminate upon the first to occur of: (i) such time as the Sponsor Purchasers, together with their Affiliated Entities, collectively, do not Own at least 171,432 shares $350 million principal amount of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like)Notes, (ii) the Company sells all or substantially all of its assets, (iii) any Person or “group” (as such term is used in Section 13 of the Exchange Act), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s voting stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction, (v) Sailing the Sponsor irrevocably waives and terminates all of its rights under this Section 5.25.5, (vi) the Board Designee is removed from the Board of Directors for cause by the stockholders of the Company or (vii) the Company delivers written notice that a Sponsor or any Sponsor Purchaser has breached the terms of this Agreement in any material respect and such the Sponsor Purchaser does not cure any such breach within 10 days of such notice, provided that no cure period shall apply if such breach is of a nature which cannot be cured. The date of termination pursuant to this clause (ec) of the obligations of the Company pursuant to this Section 5.2 5.5 is sometimes referred to herein as the “Designee Termination Date”).
Appears in 1 contract
Board Designee. (a) Sailing KKR shall have the right to nominate designate, pursuant to the terms and subject to the conditions of this Section 5.2 5.5, one nominee to the Company's Board of Directors (the "Board Designee") for consideration by the Board of Directors (and the “Nominating and Corporate Governance Committee of the Board Designee”of Directors). Such , such consideration to include, subject to Section 8.14 hereof, whether such nominee shall (i) be is qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements, exchange requirements and (ii) meet meets the independence requirements with respect to the Company of Section 5605(a)(2) of the Rules of the Nasdaq Stock Market or any other stock exchange or quotation system on which the Common Stock may be is then listed in (currently, the futureNYSE). Subject to Section 8.14, and (iii) be acceptable to the Board of Directors (including and the Nominating and Corporate Governance Committee of the Board of Directors) in its good faith discretion. The Board of Directors and the appropriate committees of the Board of Directors shall conduct the consideration of the qualifications, suitability and independence of a the Board Designee, and make any determinations with respect thereto, thereto in a manner consistent with considerations and determinations in respect of other members of the Board of Directors. Sailing As of the date hereof, KKR has designated Xx. Xxxxx Xxxxxxx as a nominee for the Board Designee. The Company acknowledges that Xx. Xxxxxxx has submitted a completed directors questionnaire supplied by the Company, that officers of the Company have reviewed the questionnaire, and that based on their review, such officers believe that Xx. Xxxxxxx meets the requirements set forth in clauses (i) and (ii) of the first sentence of this Section 5.5(a). KKR will take all necessary action to cause any nominee for Board Designee to make himself or herself reasonably available for interviews, to consent to such reference and background checks or other investigations and to provide such information (including information necessary to determine the nominee’s 's independence status under various requirements and institutional investor guidelines as well as information necessary to determine any disclosure obligations of the Company) as the Board of Directors or its Nominating and Corporate Governance Committee may reasonably request; provided, that in each such case, all interviews, investigations and information is generally required to be delivered to the Company by the outside directors of the Company. As of the date hereof, Sailing has designated Bosun S. Xxx as a nominee for Board Designee and therefore, no action by the Company and no adjustment to the Board of Directors will be required as of the Closing. Provided that the Board Designee is then meets the requirements set forth in the second sentence of this Section 5.2(a) and the Purchasers, together with their Affiliated Entities, collectively, then Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), the Company shall nominate the Board Designee for re-election as a director at the Company’s 2018 annual meeting of stockholders as part of the slate proposed by the Company that is included in the proxy statement (or consent solicitation or similar document) of the Company relating to the election of the Board of Directors and will use its best efforts to cause the election of the Board Designee acceptable to the Board of Directors (including providing the same level of support as is provided for other nominees Nominating and Corporate Governance Committee of the Company Board of Directors, but subject to Section 8.14 hereof) in its good faith discretion, the Company's Nominating and Corporate Governance Committee shall consider, consistent with its charter and fiduciary duties, the nomination of the Board Designee for election or re-election, as the case may be, as a director and as a member of the Compensation Committee of the Board of Directors so long as KKR and its Affiliates then Own at least 50% of the then outstanding principal amount of the Notes and at least $625,000,000 aggregate principal amount of the Notes are then outstanding. It shall be a condition to the nomination for election or re-election of any Board Designee that such Board Designee tender a conditional resignation letter prior to his or her nomination for election or re-election to the Board of Directors)Directors providing such Board Designee's irrevocable offer of resignation from the Board of Directors effective upon the Designee Termination Date.
(b) The Subject to Section 8.14 hereof, the Board Designee shall be subject to the policies and requirements of the Company and its Board of Directors, including the corporate governance guidelines of the Board of Directors Company's Corporate Governance Principles and the Company’s Code of Ethics, Conduct in a manner consistent with the application of such policies and requirements to other members of the Board of Directors and in a manner that does not discriminate against Sailing or its AffiliatesDirectors. The Company shall compensate indemnify the Board Designee, reimburse their expenses, indemnify them Designee and provide the Board Designee with director and officer insurance to the same extent it compensates, reimburses, indemnifies and provides insurance for the outside other members of the Board of Directors pursuant to its organizational documents, applicable law Law or otherwise.
(c) The rights of Sailing pursuant to this Section 5.2 shall be specific to Sailing and shall be non-transferable.
(d) If, for any reason, the Board Designee is not a member of the Board of Directors, so long as the Purchasers, together with their Affiliated Entities, collectively, Own at least 171,432 shares of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like), Sailing shall have the right to appoint an observer to receive notice of, and the right to participate as an observer in, meetings of the Board of Directors and to receive the same information that is provided to members of the Board of Directors in connection with such meetings, except that the observer may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, or for other similar reasons. Upon reasonable notice and at a scheduled meeting of the Board or such other time, if any, as the Board of Directors may determine in its sole discretion, such representative may address the Board of Directors with respect to Sailing’s concerns regarding significant business issues facing the Company. The observer agrees that any information provided to or learned by it in connection with its rights under this provision shall be treated as confidential information by the observer and shall not be disclosed except to others with a need to know and who are also subject to confidentiality provisions or upon the written approval of the Company or as may be required by law or regulatory or legal process.
(e) All obligations of the Company pursuant to this Section 5.2 5.5 (other than paragraph (b) of this Section 5.5 or the indemnity provided in Section 8.15 hereof) shall terminate upon the first to occur of: (i) such time as the Purchasers, together with their Affiliated Entities, collectively, KKR and its Affiliates do not Own at least 171,432 shares 50% of Common Stock (as adjusted for any stock dividends stock splits, recapitalization, combinations, consolidations or the like)then outstanding principal amount of Notes and at least $625,000,000 aggregate principal amount of the Notes are then outstanding, (ii) the Company sells all or substantially all of its assets, (iii) any Person or “"group” " (as such term is used in Section 13 of the Exchange Act), directly or indirectly, obtains Beneficial Ownership of 50% or more of the total outstanding voting power of the Voting Stock, (iv) the Company participates in any merger, consolidation or similar transaction unless immediately following the consummation of such transaction the stockholders of the Company immediately prior to the consummation of such transaction continue to hold (in substantially the same proportion as their ownership of the Company’s voting stock 's Voting Stock immediately prior to the transaction) more than 50% of all of the outstanding common stock or other securities entitled to vote for the election of directors of the surviving or resulting entity in such transaction, (v) Sailing KKR irrevocably waives and terminates all of its rights under this Section 5.25.5, or (vi) the Board Designee is removed from the Board of Directors for cause by the stockholders of the Company or (vii) the Company delivers written notice that a Purchaser has breached the terms Board of this Agreement in any material respect and such Purchaser does not cure any such breach within 10 days of such notice, provided that no cure period shall apply if such breach is of a nature which cannot be curedDirectors. The date of termination pursuant to this clause (ec) of the obligations of the Company pursuant to this Section 5.2 5.5 is sometimes referred to herein as the “"Designee Termination Date”". KKR shall notify the Company promptly if KKR and its Affiliates, collectively, do not Own at least $312,500,000 aggregate principal amount of Notes.
(d) Notwithstanding anything else contained in this Agreement to the contrary, if at any time prior to the Designee Termination Date, the Board Designee is not a member of the Board of Directors for any reason, the Board Designee shall instead be an observer at meetings of the Company's Board of Directors ("Board Observer"). The Board Observer shall be entitled to attend all meetings of the Board of Directors and shall be furnished with all the information that members of the Board of Directors are furnished with respect to each meeting of the Board of Directors, and Section 5.5(b) shall apply to the Board Observer as if he or she were a Board Designee; provided that any Board Observer must be qualified and suitable to serve as a member of the Board of Directors under all applicable corporate governance policies or guidelines of the Company and the Board of Directors and applicable legal, regulatory and stock market requirements.
(e) Any Board Designee or Board Observer that obtains Confidential Information in its capacity as a member of the Board of Directors or a Board Observer shall use the Confidential Information in a manner consistent with the limitations imposed on Purchasers in Section 8.9 hereof.
Appears in 1 contract
