Common use of Board Nomination Rights Clause in Contracts

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as of the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for For so long as the Investors collectively Beneficially Own at least 10% of the issued and outstanding Common Stock, the Company shall, upon written request by the Investor meets Representative, take all Necessary Action to (i) increase the Ownership Threshold size of the Board by one Person, and (ii) subject to the following provisos, cause one member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (the “Investor Director”) and to cause such Investor Director to be appointed to one existing committee of the Board designated by the Investor Representative and any committees of the Board established after the date hereof designated by the Investor Representative, subject to the Qualification Requirements (as defined below); provided, that in making such nomination the Investor Representative shall consider, and reasonably cooperate with the Company in satisfying, any diversity requirements applicable to the Board pursuant to applicable law or applicable stock exchange rules; and provided, further, that (i) as at any time the Investors collectively Beneficially Own at least 15% of the date of determinationissued and outstanding Common Stock, the Company shall use its best efforts shall, upon written request by the Investor Representative, take all Necessary Action to appoint one individual cause the Investor Director to be appointed to two existing committees of the Board designated by the Investor (an “Representative and any committees of the Board established after the date hereof designated by the Investor Designee”) Representative, subject to the board of directors Qualification Requirements (as defined below), and (ii) at any time the Investors collectively Beneficially Own at least 25% of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closingissued and outstanding Common Stock, the Company shall use its best efforts to cause shall, upon written request by the appointment to the Board of the Initial Designee and thereafterInvestor Representative, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts take all Necessary Action to cause the Investor Designee Director to be elected appointed to any committees of the Board designated by the Investor Representative, subject to the Qualification Requirements (as defined below). Notwithstanding anything to the contrary in this Section 2.2(a), the Nominating and Governance Committee of the Board (the “Nominating and Governance Committee”) may choose not to nominate or appoint an Investor Director, as the case may be, if the election or appointment of such candidate to the Board or committee of the Board would result in the Company failing to comply with any rule or regulation of the U.S. Securities and Exchange Commission (including recommending that the “Commission”) or any national securities exchange on which the Company’s stockholders vote Common Stock is listed or admitted to trading or any other applicable law, rule or regulation, and if the Nominating and Governance Committee so chooses not to nominate or appoint an Investor Director, then in favor the case of the an election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual candidate to the Board, the Investor Representative may designate in writing a replacement director nominee until an Investor Director that is a suitable candidate, as determined by the Nominating and Governance Committee, is nominated. The Nominating and Governance Committee shall take all Necessary Action to ensure that the Investor Representative is able to designate a member to the Board and to each committee of the Board designated by the Investor Representative pursuant to this Section 2.2(a), subject to the same conditions Qualification Requirements. A nominee shall not be eligible to serve as an Investor Director if such nominee (A) does not have the requisite skill and limitations experience to serve as set forth a director of a public company as reasonably determined by the Board in good faith, (B) is prohibited from serving as a director pursuant to any applicable law (including the Exchange Act and the Xxxxxxx Antitrust Act of 1914, as amended) or rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading, (C) is an employee or director of a Company Competitor, or (D) does not irrevocably agree in writing, in a form reasonably acceptable to both the Investor Representative and the Company, subject to applicable law, to immediately resign from the Board in the event that (1) the Investors collectively cease to Beneficially Own at least 10% of the issued and outstanding Common Stock, or (2) the conditions specified in Section 2.2(c) shall have occurred (the “Qualification Requirement”); provided, that (x) any such determination that such nominee is ineligible to serve as a director pursuant to the foregoing sentence. During such time as clause (A) may only be made by unanimous approval of the Board (excluding, for the avoidance of doubt, any Investor Designee Director who is then a member of the Board) and (y) within two (2) business days of any such determination pursuant to the foregoing clause (A), the Investor Designee Company shall be entitled to notify Stonepeak of such determination in writing and setting forth in reasonable detail the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “grounds for such determination.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for For so long as the Investors collectively Beneficially Own at least 5% of the issued and outstanding Common Stock (the “Director Threshold Amount”), the Company shall, upon written request by the Investor meets Representative, take all Necessary Action, subject to the Ownership Threshold following provisos, to cause one member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (the “Investor Director”), subject to the Qualification Requirements (as defined below). Notwithstanding anything to the contrary in this Section 2.2(a), the Corporate Governance and Nominating Committee may choose not to nominate or appoint an Investor Director, as the case may be, if the election or appointment of such candidate to the Board would result in the Company failing to comply with any rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading or any other applicable law, rule or regulation, and if the Corporate Governance and Nominating Committee so chooses not to nominate or appoint an Investor Director, then in the case of an election of a candidate to the Board, the Investor Representative may designate in writing a replacement director nominee until an Investor Director that is a suitable candidate, as determined by the Corporate Governance and Nominating Committee, is nominated. The Corporate Governance and Nominating Committee shall take all Necessary Action to ensure that the Investor Representative is able to designate a member to the Board pursuant to this Section 2.2(a), subject to the Qualification Requirements. A nominee shall not be eligible to serve as an Investor Director if such nominee (A) does not satisfy the skill and experience qualifications for service as a director of the Company applicable to all directors of the Company (it being understood that any determination that a nominee Investor Director does not satisfy such qualifications must be made by a majority of the full Board in good faith, (B) is prohibited from serving as an independent director pursuant to any applicable law (including, without limitation, the Exchange Act and the Xxxxxxx Antitrust Act of 1914, as amended) or rule or regulation of the Commission or any national securities exchange on which the Company’s Common Stock is listed or admitted to trading, (C) is an employee or director of a Company Competitor or (D) does not irrevocably agree in writing, in a form reasonably acceptable to both the Investor Representative and the Company, subject to applicable law, to immediately resign from the Board in the event that (1) the Investors collectively cease to hold the Director Threshold Amount, or (2) the conditions specified in Section 2.2(c) shall have occurred (the conditions set forth in sub-sections (A) through (D) collectively, the “Qualification Requirement”). For the avoidance of doubt, (x) the Investor Director under this Agreement shall also satisfy the definition of the “Independent Director” under the Term Loan Credit Agreement, (y) the aggregate number of Investor Directors under this Agreement and “Independent Directors” under the Term Loan Credit Agreement at any given time shall never exceed one (except to the extent separately agreed by the Investors and the Company after the date hereof) and (z) the initial Investor Director as of the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee this Agreement shall be Xxxx Xxxxx Xxxxxxxx (who shall be deemed, solely as of the “Initial Designee”). Following the Closingdate hereof, to satisfy, and who the Company shall use its best efforts to cause agrees satisfies, all qualification and other requirements hereunder, including the Qualification Requirement, for the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the an Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Board, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a member of the Board, the Investor Designee shall be entitled to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “Director).

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for For so long as the Investors collectively Beneficially Own at least 5% of the outstanding Common Stock (including, for the avoidance of doubt, the Corre Warrants and excluding any outstanding Common Stock issued as a result of an Excluded Issuance) (the “First Equity Threshold Amount”), the Company shall, upon written request by the Investor meets Representative, take all Necessary Action, subject to the Ownership Threshold following provisos, to cause one member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder, subject to the Qualification Requirements (as defined below). For so long as the Investors collectively Beneficially Own at least 15% of the outstanding Common Stock (including, for the avoidance of doubt, the Corre Warrants and excluding any outstanding Common Stock issued as a result of an Excluded Issuance) (the “Second Equity Threshold Amount”), the Company shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause one additional member of the Board to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (each such director appointed in accordance with this sentence and the preceding sentence, an “Investor Equity Director”), subject to the Qualification Requirements. For so long as the First Equity Threshold Amount is satisfied, the Company shall, upon written request by the Investor Representative, take all Necessary Action, subject to the following provisos, to cause the chairman of the Board (the “Chairman”) to be the member of the Board that is designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder. For so long as any Investors (or any of their Affiliates) hold any indebtedness or have any undrawn commitment to fund indebtedness under or with respect to the A&R Credit Agreement, the Delayed Draw Term Loans (as defined in the Eclipse Credit Agreement) (the Delayed Draw Term Loans, together with the A&R Credit Agreement, the “Debt Facilities”) or, in each case, any refinancing, extension, rollover or modification of the Debt Facilities held by any Investor or any of their respective Affiliates as of the date of determinationhereof (such indebtedness or commitments collectively, the “Lender Threshold Amount”), the Company shall use its best efforts to appoint one individual designated shall, upon written request by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the ClosingRepresentative, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual to the Boardtake all Necessary Action, subject to the same conditions and limitations as set forth in the foregoing sentence. During such time as the Investor Designee is a following provisos, to cause one additional member of the BoardBoard to consist of the nominee designated in writing by the Investor Representative, acting on behalf of the Investors, hereunder (the “Lender Director” and, together with the Investor Equity Directors, the “Investor Designee Directors”), subject to the Qualification Requirements. If the Board increases the size of the Board to eight or more members on or after the date of this Agreement, the Investors shall retain their Proportional rights to nominate Investor Directors (for the avoidance of doubt, and by way of example only and without limitation, the Investors shall be entitled to four Investor Directors if the same level of compensationBoard has eight or nine members, directors’ five Investor Directors if the Board has ten or eleven members), subject to the First Equity Threshold Amount, the Second Equity Threshold Amount and officers’ indemnity insurance coverage the Lender Threshold Amount, as applicable; provided that (i) any additional Investor Director shall either be a Lender Director or an Investor Equity Director, as determined by the Investor Representative in its sole discretion and indemnity and exculpation protection (including under ii) in the event that any indemnification agreement) as such additional Investor Director is an Investor Equity Director, the other independent members of parties hereto shall determine in good faith appropriate modifications to the Board. For purposes hereof, “threshold amounts for Investor Equity Directors.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) a. Effective as of the date of determinationhereof, and solely to the extent the below named persons wish to stand for election or serve as directors, the Company shall use its best efforts to appoint one individual designated by agrees that the Investor Corporate Governance and Nominating Committee (an or a duly constituted subcommittee thereof) (the “Investor DesigneeNominating Committee”) to of the board Board of directors Directors of the Company (the “Board”). The Investor’s initial Investor Designee ) shall recommend for election and the Board agrees to nominate for election up to two (2) individuals in the aggregate, pursuant to Sections 1(b) and 1(c) below, to be Xxxx Xxxxx confidentially designated by BVF for nomination by the Board (the “Initial DesigneeDesignation Right”). Following ) to serve as directors of the ClosingBoard in accordance with this Section 1, subject to the Company consent of the Nominating Committee and the Board with respect to each such designee, which consent is not to be unreasonably withheld, and which consent shall use its best efforts be deemed automatically given with respect to cause a designee if that designee is either Xxxx Xxxxxxx or Xxxxxxx Xxxxx unless such individual is or subsequently becomes a “bad actor” within the appointment meaning of Rule 506 of Regulation D under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (it being understood that if the Nominating Committee and the Board does not approve a given BVF designee, then BVF shall be entitled to confidentially designate one or more additional candidates until such time as such designees have actually been appointed to the Board of the Initial Designee pursuant to Sections 1(b) and thereafter, for so long 1(c)). Each individual designated confidentially by BVF to serve as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, Board pursuant to the Company shall use its best efforts to cause the appointment Designation Right and who is appointed and/or nominated to the Board is referred to herein as a “Designee”. For the avoidance of a Replacement Designee nominated by doubt, other than the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election of such an individual persons appointed to the Board, subject Board pursuant to the same conditions Designation Right and limitations as set forth in pursuant to Section 1(d), the foregoing sentence. During such time as nomination of any other individual for election to the Investor Designee is a member Board remains at the sole discretion of the BoardBoard and the Nominating Committee. If a Designee resigns or is unable to serve for any reason, the Investor Stockholders may select a replacement Designee who shall be entitled nominated pursuant to the same level terms of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “this Section 1.

Board Nomination Rights. (a) The Company shall take all actions to ensure that from and after the Closing and for so long as the Investor meets the Ownership Threshold (as defined below) as of Following the date of determination, the Company shall use its best efforts to appoint one individual designated by the Investor (an “Investor Designee”) to the board of directors of the Company (the “Board”). The Investor’s initial Investor Designee shall be Xxxx Xxxxx (the “Initial Designee”). Following the Closing, the Company shall use its best efforts to cause the appointment to the Board of the Initial Designee and thereafter, for so long as the Investor’s Board nomination right under this Section 1 continues, the Company will use its best efforts to cause the Investor Designee to be elected to the Board (including recommending that the Company’s stockholders vote in favor of the election of such designee, soliciting proxies and contesting any proxy contest and otherwise supporting such designee for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees); provided that if the Investor determines to designate a different individual (“Replacement Designee”) as the Investor Designee, such obligation shall instead apply to the Replacement Designee. If the Investor Designee ceases to be a director of the Company, the Company shall use its best efforts to cause the appointment to the Board of a Replacement Designee nominated by VMD Director pursuant to Section 2 until the Investor to fill the vacancy and thereafter the Company will use its best efforts to cause the election End Date, at every subsequent meeting of such an individual to the Board, or a committee thereof, at which all of the directors of WBA are appointed by the Board or are nominated to stand for election by stockholders of WBA, the Nominating Person(s) shall have the right to nominate for election to the Board as a VMD Director, in each case in accordance with WBA’s Organizational Documents and applicable law and stock exchange rules and subject to the same conditions approval of the Nominating and limitations Governance Committee of the Board after exercising its good faith customary due diligence review and fiduciary duties, one (1) representative (such Person, a “Nominee”). Any such Nominee must be identified by the Nominating Person(s) in writing to WBA no later than a time prior to such meeting to be reasonably specified by WBA to VMD in accordance with the Organizational Documents, or the Nominating Person(s) shall not have the right to identify a Nominee with respect to such meeting. Notwithstanding anything to the contrary set forth herein, the Nominee must be reasonably acceptable to WBA (such acceptance not to be unreasonably withheld, conditioned or delayed) and qualify as independent for purposes of service as a director on the Board, including under the applicable rules and standards set forth in the foregoing sentenceCorporate Governance Guidelines of WBA and of the Securities Exchange Commission and the Nasdaq Stock Market, as determined in good faith by the Board and its Nominating and Governance Committee at all times when nominated to stand for election by stockholders of WBA and when serving as a director on the Board. During In the event that the Nominating and Governance Committee of the Board or WBA do not approve a Nominee under this Section 3(a), WBA shall deliver prompt written notice to VMD and (i) the Nominating Person(s) shall be entitled to nominate another Nominee in accordance with and subject to the terms and conditions of this Section 3(a), (ii) the director position for which such Nominee was nominated shall not be filled pending such subsequent nomination by the Nominating Person(s) and (iii) upon such nomination by the Nominating Person(s), the Board shall comply with its obligations with respect to such successor Nominee (as if such successor Nominee was the originally designated Nominee) in accordance with and subject to the terms and conditions of this Agreement; provided that any such successor Nominee must be identified by the Nominating Person(s) in writing to WBA no later than the time as prior to the Investor Designee is a member applicable meeting of the Board, or a committee thereof, previously reasonably specified by WBA to VMD in accordance with the Investor Designee Organizational Documents, or the Nominating Person(s) shall be entitled not have the right to the same level of compensation, directors’ and officers’ indemnity insurance coverage and indemnity and exculpation protection (including under any indemnification agreement) as the other independent members of the Board. For purposes hereof, “identify a Nominee with respect to such meeting.