Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination Period”), Stifel shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent. (b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy. (c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel Nominee. (d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement. (e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee. (f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately. (g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution. (h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy. (i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 2 contracts
Samples: Stockholder Agreement (CM Finance Inc), Stockholder Agreement (CM Finance Inc)
Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination Period”), Stifel shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h1(d), upon receipt of and unless the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company PL Capital Designee has resigned (or, if permitted, by any action by written consent the PL Capital Designee is not then a director of the Stockholders) at or by which directors Company, could have been required to resign if the PL Capital Designee were then a director of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.
(bCompany) Subject pursuant to Section 2(f), vacancies arising through the death, resignation 1(b) or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation refused to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee Nominating Committee and the provisions Board shall (i) at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, nominate the PL Capital Designee for election as a director of Section 2 shall apply to the Company, together with the other persons so nominated on the Company’s slate in the Company’s proxy statement or proxy card for such alternate Person. Only annual meetings, with terms expiring at the Nominating Company’s next annual shareholders’ meeting following the 2015 Annual Meeting, the 2016 Annual Meeting and Corporate Governance Committee the 2017 Annual Meeting, respectively, (ii) recommend that the shareholders of the Company vote to elect the PL Capital Designee as a director of the Company at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, and (iii) solicit proxies for the election of the PL Capital Designee as a director of the Company at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting in the same manner as it does for all the other members of the Company’s slates. Subject to compliance with applicable laws and regulations, and to the extent consistent with the treatment of other members of the Board, the Company shall, upon the initial election of the PL Capital Designee as a director of the Company, and, thereafter, if the PL Capital Designee is re-elected as a director of the Company, cause the PL Capital Designee to be appointed, or nominated and elected, as a member of Metro Bank’s board of directors (the “Bank Board”) with terms commensurate with the PL Capital Designee’s terms as a director of the Company; provided that if the PL Capital Designee voluntarily resigns from the Board, the PL Capital Designee shall simultaneously resign as a member of the Bank Board. Upon the initial election of the PL Capital Designee to the Board and, thereafter, upon the reasonable request of the PL Capital Designee, the Board shall consult with the PL Capital Designee regarding the appointment of the PL Capital Designee to one or more committees of each of the Board and the Bank Board, with the understanding that the intent of the parties is that the PL Capital Designee shall be considered for membership on committees of the Board and the Bank Board in a similar manner to other members of the Board and the Bank Board.
(b) At any time while serving as a member of the Board or the Bank Board, the PL Capital Designee shall resign as a member of the Board and the Bank Board immediately at the written request of the Board if (i) the PL Capital Group does not own, in the aggregate, shares of Common Stock equal to at least 5.0% of the outstanding shares of Common Stock (based on the number of shares of Common Stock most recently identified by the Company as outstanding in (x) any of the Company’s Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or definitive proxy statement on Schedule 14A, in each case, as filed by the Company with the Securities and Exchange Commission (“SEC”), or (y) a written notice by the Company to the PL Capital Group) or (ii) the Board (acting through a resolution of a majority of its members) determines that any Member of the PL Capital Group has materially breached the terms of this Agreement and has failed to cure such breach within 15 calendar days following written notice from the Company to such Member describing such breach in reasonable detail.
(c) Each Member of the PL Capital Group shall, and shall cause each “affiliate” and “associate” (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of such Member of the PL Capital Group (collectively and individually the “PL Capital Affiliates”) to, cause all shares of Common Stock beneficially owned, directly or indirectly, by it to be present for quorum purposes and to be voted at any meeting of shareholders (including the 2015 Annual Meeting, the 2016 Annual Meeting, the 2017 Annual Meeting and any special meeting of shareholders) or at any adjournments or postponements thereof, and to consent in connection with any action by consent in lieu of a meeting, (i) in favor of each director nominated and recommended by the Board for election at any such meeting, (ii) against any shareholder nominations for director that are not approved and recommended by the Board for election at any such meeting, (iii) against any proposals or resolutions to remove any member of the Board and (iv) in accordance with the Board’s recommendation for each other proposal if the PL Capital Designee has voted for, or abstained from voting on, such recommendation in his capacity as a director.
(d) As a condition to the PL Capital Designee’s nomination for election to the Board at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, the PL Capital Group and the PL Capital Designee agree to provide to the Company information required to be disclosed for directors, candidates for directors and their affiliates and representatives in a proxy statement or other filings under applicable laws, regulations or stock exchange rules or listing standards, information in connection with assessing the eligibility, independence and other criteria applicable to directors and information on compliance with applicable laws or regulations, in each case, to the extent such information is being requested of all directors of the Company, including a fully completed copy of the Company’s director questionnaire in the form provided to all directors of the Company and such other information as reasonably requested by the Company from time to time with respect to the PL Capital Group and the PL Capital Designee.
(e) The PL Capital Designee shall, at all times while serving as a member of the Board or the Bank Board, (i) meet all director independence standards of the Company and Metro Bank and, with respect to service on the Board, The NASDAQ Stock Market (“NASDAQ”) and the Exchange Act, including the rules and regulations promulgated thereunder, (ii) with respect to service on the Board, be qualified to serve as a director under the Pennsylvania Business Corporation Law (the “BCL”) and the Company’s Bylaws and, with respect to service on the Bank Board, the Pennsylvania Banking Code of 1965 and the Bylaws of Metro Bank and (iii) comply with the Cxxxxxx Antitrust Act, the Depository Institution Management Interlocks Act (“DIMIA”) and the rules and regulations promulgated thereunder. Upon the request of the PL Capital Designee, the Company shall use its reasonable efforts to assist the PL Capital Designee in seeking to obtain an exemptive order pursuant to DIMIA or the rules and regulations promulgated thereunder with respect to the PL Capital Designee’s serving as a director of the Company or Metro Bank.
(f) At all times while serving as a director of the Company or Metro Bank, the PL Capital Designee will receive the same benefits of directors’ and officers’ insurance and any indemnity and exculpation arrangements available generally to the other non-executive members of the Board and the Bank Board, as the case may be, and the same compensation and other benefits for his service as a director as the compensation and other benefits received by the other non-executive members of the Board and the Bank Board, as the case may be.
(g) Except as otherwise set forth in this Section 1(g), at all times while serving as a member of the Board or the Bank Board, the PL Capital Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to members of the Board or the Bank Board (as each may be amended from time to time for all directors). Upon the request of the PL Capital Designee, the Company shall make available to the PL Capital Designee copies of all such policies, procedures, processes, codes, rules, standards and guidelines that are in writing and in effect as of the date of such request. At all times while the PL Capital Designee is serving as a member of the Board or the Bank Board, (i) the PL Capital Designee shall not disclose to the PL Capital Group, any PL Capital Affiliate or any Third Party (as defined in Section 2(a)(ii)) any confidential information of the Company or Metro Bank, and (ii) each Member of the PL Capital Group shall not, and shall cause the PL Capital Affiliates not to, seek to obtain confidential information of the Company or Metro Bank from the PL Capital Designee; provided that, notwithstanding the foregoing, the PL Capital Designee may discuss confidential information with a principal of PL Capital, LLC (“PL Capital”) in accordance with and subject to the terms of the Non-Disclosure Agreement, the form of which is attached hereto as Exhibit A (the “Non-Disclosure Agreement”), after the Non-Disclosure Agreement has been mutually executed and delivered by the Company, the PL Capital Designee, the principal of PL Capital and PL Capital.
(h) If the PL Capital Designee is elected as a director of the Company at the 2015 Annual Meeting and thereafter, during the Covered Period (as defined in Section 5(a)), the PL Capital Designee is unable or ceases to serve on the Board due to the PL Capital Designee’s death, disability or resignation (other than a resignation pursuant to Section 1(b)), then (x) the PL Capital Group shall have the right to object recommend a substitute person to fill the resulting vacancy (as well as any Stifel Nominee.
related resulting vacancy on the Bank Board), (dy) During the Stifel Nomination PeriodBoard shall promptly appoint such replacement director to the Board (any such replacement director appointed in accordance with this Section 1(h) shall thereafter be deemed a “PL Capital Designee” under this Agreement), and (z) subject to compliance with applicable laws and regulations, the Company shall notify Stifel cause such replacement director to be appointed to the Bank Board in writing a manner consistent with other members of the date on which proxy materials are expected to be mailed Board; provided that such replacement shall (i) satisfy the conditions set forth in Section 1(e), (ii) meet the standards and criteria applied by the Company in connection with an election of directors at an annual or special meeting nominating and appointing directors, (iii) have relevant financial and business experience, (iv) be mutually satisfactory to the PL Capital Group and the Board, provided that the approval of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company noticeBoard shall not be unreasonably withheld or delayed, Stifel shall and (v) if not a party hereto, execute and deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity joinder to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and agree to discuss any such comments with be bound by the Company. The Company shall include Stifel’s reasonable comments in terms hereof applicable to the proxy materials relating to such matters. The Company shall notify Stifel PL Capital Designee; provided, further, that the appointment of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel 1(h) shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) be subject to applicable legal requirements, the Bylaws Board’s exercise of its fiduciary duties and the Articles satisfactory completion of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and its customary due diligence process (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt including its review of a Stifel Nominee Notice in accordance with Section 2(a)questionnaire for directors and director nominees, the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%background check and interviews).
Appears in 1 contract
Samples: Nomination and Standstill Agreement (PL Capital, LLC)
Board Nomination. (a) For Subject to the terms and conditions of this Agreement, for so long as Stifel holds ownership interests in a principal amount of at least $62,500,000 remains outstanding under the Adviser Credit Agreement (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination PeriodThreshold”), Stifel FP shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member one of the Board. Subject nominees for election to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors a Class III Director (a “FP Designee”) at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company at which the Class III Directors are to stand for election, except such meetings for the purpose of filling vacancies or newly created directorships (orother than a vacancy to be filled by an FP Designee); provided, if permittedthat such FP Designee shall (i) be independent of FP Parent (for the avoidance of doubt, the nomination by FP Parent of a person to serve on the board of any action by written consent other company shall not (in and of itself) cause such person to not be deemed independent of FP Parent, but any current employee, director, partner or affiliate of FP Parent will not be deemed independent of FP Parent) and (ii) shall be otherwise acceptable to the Company in its reasonable discretion. If FP has the right to designate an FP Designee pursuant to this Section 1(a), the Company shall (x) include the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) in the slate of nominees to be elected to the Board at each meeting of stockholders of the StockholdersCompany at which the Class III Directors are to stand for election, except such meetings for the purpose of filling vacancies or newly created directorships (other than a vacancy to be filled by an FP Designee), (y) at include the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) in the proxy statement prepared by the Company in connection with soliciting proxies for any such meeting and (z) recommend and support the election of the FP Designee (including, for the avoidance of doubt, | any successor designated pursuant to Section 1(d)) in the same manner as it recommends and supports the election of any incumbent directors nominated for election to the Board, subject in each case to the FP Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable law and NYSE rules (or by the rules of the principal market on which the Common Stock is then listed) regarding service as a director and such other criteria and qualifications for service as a director applicable to non-employee directors of the Company are as in effect on the date thereof. At any time that FP and its Affiliates cease to be elected during satisfy the Stifel Nomination PeriodThreshold, the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) shall promptly offer to resign from the Board in a writing delivered to the Board. For the avoidance of doubt, in the event that FP and recommend that its Affiliates cease to satisfy the Stockholders vote Nomination Threshold, FP will not regain the right to elect the Stifel Nominee at each such meeting or by such written consentdesignate a FP Designee.
(b) Subject The Company shall use commercially reasonable efforts to provide written notice to FP of the expected filing date of the proxy statement for its 2021 annual meeting of stockholders (the “2021 Proxy Statement”) at least ninety (90) days prior to such filing date. If FP notifies the Company of a designee satisfying the qualifications and conditions for an FP Designee set forth in Section 2(f1(a) at least sixty (60) days prior to the filing with the Securities and Exchange Commission of the 2021 Proxy Statement, then, as promptly as practicable, subject to compliance with Section 1(c), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed Board will appoint such designee to the Board pursuant to this Section 2, may be filled by serve as a Class III Director for a term expiring at the Board only with a Stifel Nominee, and 2021 annual meeting of the director so chosen shall hold office until the next election Company’s stockholders or until his or her successor is duly elected and qualified.
(c) The Company’s obligations pursuant to Section 1(a), 1(b) and 1(d) shall be subject to FP and the FP Designee timely providing, fully and completely, (i) any information required to be or customarily disclosed for directors, candidates for directors and their Affiliates in any filing or report of the Company under applicable law or stock exchange rules or listing standards, including without limitation the Company’s form director and officer questionnaire, (ii) any information that is required in connection with determining the eligibility and independence status of the FP Designee under applicable law and stock exchange rules or listing standards, (iii) if required by applicable law, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected and (iv) such other information with respect to director candidates as set forth in the Company’s corporate governance guidelines, nominating and corporate governance committee charter and/or bylaws, as each may be amended and/or restated from time to time, or until his or her earlier as reasonably requested by the Company from time to time with respect to FP and its Affiliates and the FP Designee, in each case, to the extent consistent with such non-employee information customarily requested from the Company’s other directors.
(d) If a vacancy occurs because of the death, resignation or removal. Notwithstanding the provisions of this Section 2disability, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the deathdisqualification, resignation or removal of the Stifel Nominee who was elected or appointed FP Designee, FP shall be entitled, subject to the Board pursuant conditions and qualifications set forth in Section 1(a) and to this Section 21(c), the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel Nominee.
(d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifelperson’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject tosuccessor, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase promptly fill the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill with such vacancysuccessor.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Board Nomination. The Company agrees:
(a) For so long to include Brett Icahn, James Nelson and SungHwan Cho or their xxxxxxtivx Xxxxxxxxxxts (as Stifel holds ownership interests xxxxxxxxxxx defined) (each, an "Icahn Suggested Nominee", and collectively, the "Icahn Suggested Nominees") in its slate of nominees for election as directors of the Adviser Company at the Company's 2010 annual meeting of stockholders (the “Adviser Interests”"2010 Annual Meeting");
(b) equal that to at least 15% the extent any of Brett Icahn, James Nelson or SungHwan Cho (except or their xxxxxxxxxx Repxxxxxxxxx) xs unxxxx xx xxxxx xx x xxxinee for election as provided in Section 2(h)) of the total ownership interests in the Adviser (such time perioddirector or to serve as a director, for any reason, the “Stifel Nomination Period”), Stifel Icahn Group shall have the right to designate in writing submit the name of a replacement (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”"Replacement") to the Company for its approval (such determination to be made in the sole discretion of the Company acting in good faith) and who shall serve as the nominee for election as director or serve as director. If the proposed Replacement is not approved by the Company, the Icahn Group shall have the right to submit another proposed Replacement to the Company for its approval (such determination to be made in the sole discretion of the Company acting in good faith). The Icahn Group shall have the right to continue submitting the name of a proposed Replacement to the Company for its approval until the Company approves that such Replacement may serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve nominee for election as a member of the Board as part of the Company’s slate of directors at each annual director or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.
(b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in whereupon such event, Stifel shall be entitled to designate another Person person is appointed as the Stifel Nominee and the provisions Replacement;
(c) its slate of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee nominees for election as directors of the Company at the 2010 Annual Meeting shall have the right to object to any Stifel Nominee.not include Ben Feder, Grover C. Brown and John F. Levy; and
(dx) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes xx xxx xxxxxxxially reasonablx xxxxxxx xx cause the election of the Stifel Nominee Icahn Suggested Nominees to the Company's board of directors (the "Board") at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth the 2010 Annual Meeting (i) including recommending that the name and address Company's stockholders vote in favor of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion election of the proxy materials relating to Icahn Suggested Nominees and otherwise supporting them for election in a manner no less rigorous and favorable than the Stifel Nominee and manner in which the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments supports its other nominees in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%aggregate).
Appears in 1 contract
Board Nomination. (a) For so long The Company agrees (x) to appoint Mxxx Xxxx to the Board of Directors as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) equal to at least 15% (except initial Purchaser Designee effective as provided in Section 2(h)) of the total ownership interests Closing and (y) to appoint to the Board of Directors as an additional Purchaser Designee another individual, selected by the Purchaser within ten (10) Business Days after the Closing in accordance with Section 4.06(c) and who qualifies as an “independent director” under the Adviser rules of NASDAQ, effective within ten (10) Business Days after such selection, and to take all necessary action at the effective time periodof such appointment to increase the size of the Board of Directors by one (1). The Company agrees that, subject to Section 4.06(c), the “Stifel Nomination Period”), Stifel Purchaser shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member nominate at each meeting of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member shareholders at which individuals will be elected members of the Board of Directors a total of two (2) nominees of the Purchaser, one of whom must qualify as part an “independent director” under the rules of NASDAQ (for the avoidance of doubt, the Purchaser shall have a right to nominate two (2) members to the Board of Directors if and only so long as the Purchaser does not fall below the Minimum Ownership Threshold (as defined below) at any point in time). Notwithstanding the foregoing, the Purchaser shall not have a right to nominate any member to the Board of Directors from and after such time as the Purchaser ceases to meet the Minimum Ownership Threshold. The Purchaser ceases to meet the “Minimum Ownership Threshold” when the Purchaser ceases to Beneficially Own Class A Shares representing at least 10% of the aggregate voting power of the outstanding Class A Shares, assuming exercise, conversion or exchange of all outstanding securities (including the Preferred Shares, the Alternative Preference Shares and the Class B Shares) that are exercisable, convertible or exchangeable for or into Class A Shares without regard to any limitation or restriction on exercise, conversion or exchange or any issuance of additional securities of the Company after the Closing (other than securities issued or granted under the Company’s slate of directors at each annual employee or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (ordirector employment, if permittedcompensation, by any action by written consent of the Stockholders) at incentive and/or benefit plans, programs, policies, agreements or by which directors of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consentother similar arrangements).
(b) Subject to the terms and conditions of this Section 2(f)4.06 and applicable law, vacancies arising through the death, resignation or removal Company agrees to include each Purchaser Designee in its slate of nominees for election as directors of the Stifel Nominee who was Company at each of the Company’s meetings of shareholders at which directors are to be elected or appointed and use its reasonable best efforts to cause the election of each such Purchaser Designee to the Board of Directors (which shall at a minimum be at least the same efforts expended to elect any other director to the Board of Directors). For the avoidance of doubt, failure of the shareholders of the Company to elect any Purchaser Designee to the Board of Directors shall not affect the right of the Purchaser to nominate directors for election pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next 4.06 in any future election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancydirectors.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not Each Purchaser Designee must be entitled reasonably acceptable to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines Board of Directors (or any successor thereto) acting in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Companygood faith; provided, that the Company acknowledges that Mxxx Xxxx is deemed to satisfy the requirements of, and be acceptable under, this sentence in such eventthe absence of any material circumstances arising after the date of this Agreement, Stifel shall be entitled or in existence as of the date of this Agreement but not known to designate another Person as the Stifel Nominee and Company prior to the provisions date of Section 2 shall apply to such alternate Person. Only this Agreement, that in the good faith judgment of the Nominating and Corporate Governance Committee of the Company shall have Board of Directors (or any successor thereto) has a material and adverse impact thereon. Any Purchaser Designee nominated to succeed or replace Mxxx Xxxx (or any successor or replacement thereto) must be an officer or employee of the right to object Purchaser or any of its Affiliates (excluding for purposes of the definition of Affiliates, any portfolio company of a Purchaser or any of its Affiliates, including any dedicated holding company within the portfolio company structure). As a condition to any Stifel Nominee.
(d) During Purchaser Designee’s appointment to the Stifel Nomination Period, Board of Directors and nomination for election as a director of the Company shall notify Stifel at the Company’s annual meetings of shareholders (A) the Purchaser and each Purchaser Designee must in writing all material respects provide to the Company (1) all information reasonably requested by the Company that is required to be disclosed for directors, candidates for directors, and their affiliates and representatives in a proxy statement or other filings under applicable law or regulation or stock exchange rules or listing standards, in each case, relating to their nomination or election as a director of the date on which proxy materials are expected to be mailed Company or the Company’s operations in the ordinary course of business and (2) information reasonably requested by the Company in connection with an satisfying compliance and legal or regulatory obligations, in each case, relating to their nomination or election as a director of the Company or the Company’s operations in the ordinary course of business, with respect to the Purchaser, and the applicable Purchaser Designee, (B) each Purchaser Designee must be qualified to serve as a director of the Company under the CBCA to the same extent as all other directors of the Company (provided that a Purchaser Designee shall not be required to be a resident Canadian, within the meaning of the CBCA) and (C) each Purchaser Designee must satisfy the requirements set forth in the Company’s Corporate Governance Guidelines, code of conduct and securities trading policy (subject to Section 4.02), in each case as currently in effect (the “Specified Guidelines”) with such changes thereto (or such successor policies) as are applicable to all other directors and as are not targeted towards any Purchaser Designee, as are adopted in good faith by the Board of Directors, and as are consistent with clause (d) below. The Company will make all information requests pursuant to this Section 4.06(c) in good faith in a timely manner that allows the Purchaser and each Purchaser Designee a reasonable amount of time to provide such information, and will cooperate in good faith with the Purchaser and each Purchaser Designee in connection with their efforts to provide the requested information.
(d) The Purchaser acknowledges that at all times while serving as a member of the Board of Directors, each Purchaser Designee (A) will refrain from serving on the board of directors at or similar governing body, or serving as an annual officer or special meeting employee, of any Industry Competitor (provided, however, that a Purchaser Designee may serve on the board of directors or similar governing body, or serve as an officer or employee, of Purchaser or any Affiliate of Purchaser other than an Affiliate of Purchaser that is a Competitive Portfolio Company) and each Purchaser Designee and officer or director of the Stockholders that includes Purchaser or its Affiliates will refrain from serving on the election board of directors or similar governing body, or serving as an officer or employee, of any Person (including Purchaser and any Competitive Portfolio Company) under circumstances in which such service while a Purchaser Designee is serving as a member of the Stifel Nominee at least 45 days prior Board of Directors would not comply with applicable law (as reasonably determined by counsel to the Purchaser or such expected mailing datePurchaser Designee, after reasonable advance consultation with, and consideration in good faith the views of, counsel to the Company) or if required or requested by any Governmental Entity, and (B) will be required to comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-executive members of the Board of Directors that (x) are included in the Specified Guidelines as currently in effect with such changes (or such successor policies) as are applicable to all other directors and as are not targeted towards any Purchaser Designee (and the Company acknowledges that changes to the Specified Guidelines or adoption of successor policies by the Company that would limit the rights of a Purchaser Designee under clause (A) with respect to serving on the board of directors or similar governing body, or serving as an officer or employee, of Purchaser or any Affiliate of Purchaser that is not a Competitive Portfolio Company would presumptively be deemed targeted towards a Purchaser Designee), or (y) relate to the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board of Directors or committees of the Board of Directors to the extent not disclosed publicly by the Company. Following receipt Notwithstanding the foregoing, for so long as a Purchaser Affiliated Director is on the Board of such Company noticeDirectors, Stifel shall deliver a Stifel Nominee Notice setting forth (i) any share ownership requirement for any Purchaser Designee serving on the name Board of Directors will be deemed satisfied by the securities owned by the Purchaser and/or its Affiliates and address under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on the Stifel Nominee Purchaser’s and/or its Affiliates’ transfers of securities pursuant to Article V (except as otherwise provided therein with respect to Blackout Periods) and (ii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the information required for director nominees under Items 401Board of Directors be deemed violated by any Purchaser Designee (x) receiving compensation from the Purchaser or any of its Affiliates, 403 or (y) failing to offer his or her resignation from the Board of Directors except as otherwise expressly provided in this Agreement or pursuant to any majority voting policy adopted by the Board of Directors, and, in each case of (i) and 404 (ii), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.06 shall not apply to the extent inconsistent with this Section 4.06 (but shall otherwise be applicable to the Purchaser Designees). If the Specified Guidelines are in good faith changed in a manner that is not targeted towards the Purchaser Designees and results in a Purchaser Designee no longer satisfying the Specified Guidelines in all material respects, then the Purchaser agrees that it shall not nominate such Purchaser Designee at the next meeting of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion shareholders of the proxy materials relating to Company at which the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance shareholders of the date on which such proxy materials are to be mailed by Company elect the Company in connection with such election Board of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this AgreementDirectors.
(e) In Subject to the event the Stockholders fail to elect or consent to terms and conditions of this Section 4.06, if a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board of Directors is created by as a result of a Purchaser Designee’s death or resignation, in each case for whatever reason, or if the Stockholders failure Purchaser desires to elect nominate a different individual to replace any then-existing Purchaser Designee, then, at the request of the Purchaser, the Purchaser and the Company (acting through the Board of Directors) shall work together in good faith to fill such vacancy or consent replace such nominee as promptly as reasonably practical with a replacement Purchaser Designee subject to the terms and conditions hereof, and thereafter such individual shall as promptly as reasonably practical be appointed to the Board of Directors to fill such vacancy and be nominated as a Company nominee as a “Purchaser Designee” pursuant to this Section 4.06 (as applicable).
(f) For the avoidance of doubt, notwithstanding anything in this Agreement or the Articles of Amendment to the contrary, Stagwell Agency Holdings LLC shall have the right, in connection with a transfer, of all the Shares issued to the Purchaser on the Closing Date or, after conversion of such Preferred Shares, all the Common Shares and all of the Class A Shares and/or Alternative Preference Shares issued upon conversion of such Preferred Shares, to a Stifel Nomineesingle Person who is reasonably acceptable to the Company (such acceptance not to be unreasonably withheld, conditioned or delayed), to assign the rights of Stagwell Agency Holdings LLC under this Section 4.06 to such transferee Person pursuant to Section 6.07(iii) (it being understood that no rights under this Section 4.06(f) may be assigned).
(g) Each Purchaser Designee will be entitled to receive similar reimbursement (including of travel expenses, if applicable), indemnification and insurance coverage for his or her service as director as the other outside directors of the Company. For the avoidance of doubt, in no event Purchaser Designee shall be entitled to receive any compensation for his or her service as a director of the Company Company. Subject to Section 4.06(c), the Purchaser Designees may not be required to nominate or appoint a Stifel Nominee to removed by the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel NomineeDirectors.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Board Nomination. (a) For From and after the IPO, for so long as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) equal to Peninsula beneficially owns a number of shares of Common Stock that represents at least 155% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time periodoutstanding shares of Common Stock, the “Stifel Nomination Period”), Stifel Peninsula shall have the right (but not the obligation) pursuant to designate this Agreement to nominate for election to the Board one individual identified in writing advance in writing, and the Company shall include, and shall use its reasonable best efforts to cause the Board, whether acting through any committee of the Board or otherwise, to include such Peninsula Nominee in the slate of nominees recommended to stockholders of the Company (the “Stifel Nominee NoticeStockholders”) a Person (the “Stifel Nominee”) to serve for election as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors director at each any annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company of the Class of which a Peninsula Nominee is a member are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consentelected.
(b) Subject to Section 2(f), vacancies Any vacancy arising through the death, resignation or removal of the Stifel a Peninsula Nominee who was elected or appointed nominated to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Peninsula Nominee, as applicable, and the director so chosen shall hold office until the next election or at which directors of the Class to which the Peninsula Nominee has been appointed are to be elected and until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel Peninsula shall not be entitled to designate a Person as a nominee to the Board if upon a written determination by the Nominating and Corporate Governance Committee Board or any committee thereof responsible for the nomination of the Company reasonably determines in writing directors (which determination shall set forth the in writing reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in . In such an event, Stifel Peninsula shall be entitled to designate another select a Person as the Stifel Nominee a replacement nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall use its reasonable best efforts, and use its reasonable best efforts to cause the Board, whether acting through any committee of the Board or otherwise, to cause such Person to be nominated as the Peninsula Nominee at the same meeting (or, if permitted, pursuant to the same action by written consent of the Stockholders) as such initial Person was to be nominated. Other than with respect to the issue set forth in the preceding sentence, the Company shall not have the right to object to any Stifel Peninsula Nominee.
(d) During So long as a Peninsula beneficially owns a number of shares of Common Stock that represents at least 5% of the Stifel Nomination Periodoutstanding shares of Common Stock, the Company shall notify Stifel Peninsula in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election at which directors of the Stifel Class including the Peninsula Nominee is to be elected (and the Company shall deliver such notice at least 45 60 days (or such shorter period to which Peninsula consents, which consent need not be in writing) prior to such expected mailing date. Following receipt date or such earlier date as may be specified by the Company reasonably in advance of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) earlier delivery date on the name and address of basis that such earlier delivery is necessary so as to ensure that such nominee may be included in such proxy materials at the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities lawstime such proxy materials are mailed). The Company shall provide Stifel Peninsula with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and Peninsula or the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event that Peninsula loses its right to nominate a Peninsula Nominee pursuant to this Agreement by virtue of ceasing to hold the Stockholders fail requisite number of shares of Common Stock, Peninsula shall use its reasonable best efforts to elect or consent cause its Peninsula Nominee to a Stifel Nominee in accordance with resign from the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply Board immediately prior to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on time as a replacement director is nominated or elected by the Board created by or the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel NomineeCompany’s stockholders.
(f) In the event that Stifel ceases to have the right to designate a Person to serve So long as a director pursuant to this Section 2Agreement shall remain in effect, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles Certificate of Incorporation shall accommodate, accommodate and be subject to, to and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way respect conflict with Stifel’s the rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Samples: Director Nomination Agreement (Unique Fabricating, Inc.)
Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser If (the i) either (1) a person affiliated with ValueAct Capital Management, L.P. or its affiliates (“Adviser InterestsValueAct”) equal to at least 15% (except as provided in Section 2(h)currently Gxxxxxx X. Xxxxx) of the total ownership interests in the Adviser or (such time period2) a person affiliated with Longview Asset Management, the LLC or its affiliates (“Stifel Nomination PeriodLongview”) (currently Jxxxx X. Star), Stifel shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee ceases to serve as a member of the Board for any reason in a circumstance, in either case, in which a replacement director that is a person affiliated with such stockholder is not promptly appointed, the Board shall promptly appoint the Àxxx Designee to serve as part a director on the Board and thereafter nominate or renominate, as applicable, the Axxx Designee for election to the Board at the Company’s 2017 and 2018 annual meeting of stockholders; (ii) the Board fails to nominate both a director who is a person affiliated with ValueAct and a person affiliated with Longview for election to the Board at the Company’s 2017 or 2018 annual meeting of stockholders, the Board shall nominate or renominate, as applicable, the Àxxx Designee for election as a director at the Company’s 2017 and 2018 annual meetings of stockholders; or (iii) either ValueAct or Longview ceases to beneficially own at least 5% of the Company’s slate outstanding Common Stock, the Board shall nominate or renominate, as applicable, the Àxxx Designee for election as a director at the Company’s 2017 and 2018 annual meetings of directors at each annual or special meeting stockholders; provided that, in the case of any of the stockholders foregoing clauses (i) to (iii) of this Section 1(a), (x) the “Stockholders”Company shall have completed, to its satisfaction, a customary background check on the Àxxx Designee, (y) the Board does not conclude in which the term of any Stifel Nominee will expire and good faith, after consultation with outside legal counsel, that such appointment would constitute a breach of the Company directors’ fiduciary duties (or, if permitted, by any action by written consent of it being acknowledged that to the Stockholders) at or by which directors of extent the Board makes such a determination the Company are shall promptly inform the Axxx Group of such determination and a replacement candidate shall be selected pursuant to be elected during the Stifel Nomination PeriodSection 1(e) below), and recommend that (z) under no circumstances shall the Stockholders vote Board be obligated to elect the Stifel Nominee at each such meeting appoint, nominate or by such written consent.
(b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed renominate more than one Àxxx Designee to the Board pursuant to this Section 21(a).
(b) As a condition to the Àxxx Designee’s appointment to the Board, may the Àxxx Group, including the Àxxx Designee, agrees to provide to the Company information required to be filled or customarily disclosed for directors, candidates for directors, and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and such other information as reasonably requested by the Board only Company from time to time with a Stifel Nominee, respect to the Àxxx Group and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancyÀxxx Designee.
(c) Notwithstanding The Àxxx Designee agrees that, at all times while serving as a member of the Board, he will (i) meet all director independence and other standards of the Company, the New York Stock Exchange and the Securities and Exchange Commission (“SEC”) and applicable provisions of this Section 2the Securities Exchange Act of 1934, Stifel shall not be entitled to designate a Person as a nominee to amended (the Board if “Exchange Act”), and the Nominating rules and Corporate Governance Committee of the Company reasonably determines in writing regulations promulgated thereunder, including Rule 10A-3; and (which determination shall set forth the reasonable grounds for such determinationii) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director under the Delaware General Corporation Law (the “DGCL”) (clauses (i) and (ii), the “Conditions”). The Àxxx Designee will promptly advise the Nominating Committee if he ceases to satisfy any of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel NomineeConditions.
(d) During At all times while serving as a member of the Stifel Nomination Board, the Àxxx Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to Board members, including the Company’s Code of Business Conduct, Ixxxxxx Xxxxxxx Policy, Executive Stock Ownership Policy as in effect on the date hereof, and Corporate Governance Guidelines, and (except as permitted by the Confidentiality Agreement (as defined in Section 7 below)) preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees to the extent not disclosed publicly by the Company.
(e) So long as the Àxxx Group collectively beneficially owns, in the aggregate, at least 5% of the outstanding Common Stock, if, during the Covered Period, a vacancy on the Board is created as a result of the Àxxx Designee’s ceasing to serve as a director for any reason then the Àxxx Group and the Company (acting through the Board) shall notify Stifel work together in writing of good faith to fill such vacancy or replace such nominee with an individual who (A) meets the date on which proxy materials are expected to be mailed Conditions, (B) meets the historical standards and criteria applied by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company noticenominating and appointing directors, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (iiC) the information required for director nominees under Items 401, 403 and 404 is otherwise mutually acceptable (in each of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating their sole discretion) to the Stifel Nominee Àxxx Group and the rights Company, and obligations provided thereafter such individual shall serve and/or be nominated as the “Àxxx Designee” under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(ef) In The Company’s obligations hereunder shall terminate immediately, and the event Àxxx Designee shall promptly offer to resign from the Stockholders fail Board, and any committee of the Board on which he then sits (and, if requested by the Company, promptly deliver his written resignation to elect the Board (which shall provide for his immediate resignation) it being understood that it shall be in the Board’s sole discretion whether to accept or consent to a Stifel Nominee in accordance with the preceding sentence, reject such resignation) if: (i) Stifel shall designate another Person as members of the Stifel Nominee Àxxx Group, collectively, cease to beneficially own at least 5% of the Company’s outstanding Common Stock; (ii) the Àxxx Designee ceases to satisfy the conditions set forth in clauses (c)-(d) above; (iii) a member of the Àxxx Group, including the Àxxx Designee, otherwise ceases to comply or breaches any of the terms of this Agreement or the Confidentiality Agreement in any material respect and such breach continues after notice from the Company and a 10 day opportunity to cure; or (iv) the employment of the Àxxx Designee with the Àxxx Group is terminated for any reason. The Àxxx Group agrees to cause the Àxxx Designee to resign from the Board if the Àxxx Designee fails to resign if and when requested pursuant to this Section 1(f). Notwithstanding the foregoing, in the event of the occurrence of an event set forth in subsection (ii) or (iv) above, the provisions of Section 2 1(e) must be complied with and the Company’s obligations hereunder shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediatelynot terminate.
(g) The Company agrees that at all times during the Stifel Nomination Period percentage thresholds set forth in clauses (ie) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and (f) above shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior be deemed unsatisfied to the signing extent a failure to maintain the specified ownership thresholds is the result of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event share issuances or similar Company actions that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size number of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancyoutstanding shares of Common Stock.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Samples: Cooperation Agreement (Ashe Capital Management, LP)
Board Nomination. (a) For so long The Company agrees to appoint Xxxxxxx Xxxx to the Board of Directors as Stifel holds ownership interests the initial Purchaser Designee effective no later than forty-five days after the Closing Date by taking all necessary action to increase the size of the Board of Directors unless there otherwise is a vacancy in the Adviser (Board of Directors and in either event filling the “Adviser Interests”) equal vacancy thereby created with such individual. Between the Closing and such appointment, Xxxxxxx Xxxx shall be entitled to at least 15% (except as provided in Section 2(h)) attend meetings of the total ownership interests Board of Directors as a non-voting observer and receive all notices of such meetings and related materials provided to the members of the Board of Directors (in each case, except to the extent that such attendance or receipt of notices or materials reasonably would be expected to result in the Adviser (such time periodCompany's inability to exercise attorney-client privilege). The Company agrees that, subject to Section 4.07(c), the “Stifel Nomination Period”), Stifel Purchaser shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual meeting or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent at which individuals will be elected members of the StockholdersBoard of Directors one nominee selected by the Purchaser (for the avoidance of doubt, the Purchaser shall have a right to nominate a member to the Board of Directors if and only so long as the Purchaser and its Affiliates, collectively, do not fall below the Minimum Ownership Threshold (as defined below) at any point in time). Notwithstanding the foregoing, the Purchaser shall not have a right to nominate any member to the Board of Directors from and after such time as the Purchaser and its Affiliates collectively hold or by which directors Beneficially Own less than 50% of the Company are to be elected during Conversion Shares Beneficially Owned by the Stifel Nomination Period, and recommend that Purchaser as of the Stockholders vote to elect the Stifel Nominee at each such meeting or Closing Date on an as-converted basis (assuming any Subject Securities Beneficially Owned by such written consentPerson and its Affiliates are converted on a fully physical settlement basis) (as equitably adjusted for any stock split, reverse stock split, recapitalization or similar event with respect to the Company Common Stock) (the "Minimum Ownership Threshold").
(b) Subject to the terms and conditions of this Section 2(f)4.07 and applicable law, vacancies arising through the death, resignation or removal Company agrees to include the Purchaser Designee in its slate of nominees for election as directors of the Stifel Nominee who was Company at each of the Company's meetings of stockholders or action by written consent at which directors are to be elected or appointed and use its reasonable efforts to cause the election of the Purchaser Designee to the Board of Directors (for the avoidance of doubt, the Company will be required to use substantially the same level of efforts and provide substantially the same level of support as is used and/or provided for the other director nominees of the Company with respect to the applicable meeting of stockholders or action by written consent). For the avoidance of doubt, failure of the stockholders of the Company to elect any Purchaser Designee to the Board of Directors shall not affect the right of the Purchaser to nominate directors for election pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next 4.07 in any future election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancydirectors.
(c) Notwithstanding Any Purchaser Designee must be a director of the provisions of this Section 2, Stifel shall not be entitled Purchaser that is acceptable to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Board of Directors (or any successor thereto) acting in good faith. As a condition to any Purchaser Designee's appointment to the Board of Directors and nomination for election as a director of the Company at the Company's annual meetings of stockholders (A) the Purchaser and the Purchaser Designee must in all material respects provide to the Company (1) all information reasonably determines requested by the Company that is required to be or customarily disclosed for directors, candidates for directors, and their affiliates and representatives in writing a proxy statement or other filings under applicable law or regulation or stock exchange rules or listing standards, in each case, relating to their nomination or election as a director of the Company or the Company's operations in the ordinary course of business and (which determination shall set forth 2) information reasonably requested by the reasonable grounds for such determinationCompany in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to their nomination or election as a director of the Company or the Company's operations in the ordinary course of business, with respect to the Purchaser, its Affiliates and the applicable Purchaser Designee, (B) that such Person would not the Purchaser Designee must be qualified under any applicable law, rule or regulation to serve as a director of the Company; providedCompany under the DGCL, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee rules of the NYSE and the provisions of Section 2 shall apply applicable federal securities laws to such alternate Person. Only the Nominating and Corporate Governance Committee same extent as all other directors of the Company and (C) the Purchaser Designee must satisfy the requirements set forth in the Company's Corporate Governance Guidelines, code of conduct and securities trading policy (subject to Section 4.02), in each case as currently in effect (the "Specified Guidelines") with such changes thereto (or such successor policies) as are applicable to all other directors, as are adopted in good faith by the Board of Directors, and as are consistent with clause (d) below (for the avoidance of doubt, the Purchaser Designee shall have be required to qualify as an independent director under applicable stock exchange rules and federal securities laws and regulations). The Company will make all information requests pursuant to this Section 4.07(c) in good faith in a timely manner that allows the right Purchaser and the Purchaser Designee a reasonable amount of time to object provide such information, and will cooperate in good faith with the Purchaser and the Purchaser Designee in connection with their efforts to any Stifel Nomineeprovide the requested information.
(d) During The Purchaser acknowledges that at all times while serving as a member of the Stifel Nomination PeriodBoard of Directors, the Company shall notify Stifel Purchaser Designee, solely in writing his or her individual capacity, will be required to comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-executive members of the date Board of Directors that are included in the Specified Guidelines as currently in effect with such changes (or such successor policies) as are applicable to all other directors and as are not targeted towards, and are not disproportionately applicable to, the Purchaser Designee. Notwithstanding the foregoing, for so long as an Purchaser Designee is on which proxy materials are expected to be mailed by the Company Board of Directors, without limiting Sections 4.02 or 4.03 in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company noticeany respect, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and address preclearance or notification to the Company of any trades in the Company's securities) or similar guideline or policy with respect to the trading of securities of the Stifel Nominee and Company that applies to the Purchaser or its Affiliates (including a policy that limits, prohibits, restricts Purchaser or its Affiliates from entering into any hedging or derivative arrangements), in each case other than with respect to the Purchaser Designee solely in his or her individual capacity, except as provided herein, or that imposes confidentiality obligations on the Purchaser Designee that are inconsistent with Section 4.14 or the Confidentiality Agreement, (ii) any share ownership requirement for any Purchaser Designee serving on the information required Board of Directors will be deemed satisfied by the securities owned by the Purchaser and/or its Affiliates and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on the Purchaser's or its Affiliates' transfers of securities pursuant to Article V (except as otherwise provided therein with respect to Blackout Periods) and (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Board of Directors be violated by any Purchaser Designee (x) accepting an invitation to serve on another board of directors of a company whose principal line(s) of business do not compete with the principal line(s) of business of the Company or failing to notify an officer or director of the Company prior to doing so, or (y) receiving compensation from the Purchaser or any of its Affiliates, or (z) failing to offer his or her resignation from the Board of Directors except as otherwise expressly provided in this Agreement or pursuant to any majority voting policy adopted by the Board of Directors, and, in each case of (i), (ii) and (iii), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.07 shall not apply to the extent inconsistent with this Section 4.07 (but shall otherwise be applicable to the Purchaser Designee).
(e) Subject to the terms and conditions of this Section 4.07, if a vacancy on the Board of Directors is created as a result of a Purchaser Designee's death, resignation, disqualification or removal for director nominees under Items 401cause, 403 or if the Purchaser desires to nominate a different individual pursuant to this Section 4.07 to replace any then-existing Purchaser Designee, then, at the request of the Purchaser, the Purchaser and 404 the Company (acting through the Board of Regulation S-K under Directors) shall work together in good faith to fill such vacancy or replace such nominee as promptly as reasonably practical with a replacement Purchaser Designee subject to the federal securities lawsterms and conditions hereof, and thereafter such individual shall as promptly as reasonably practical be appointed to the Board of Directors to fill such vacancy and/or be nominated as a Company nominee as a "Purchaser Designee" pursuant to this Section 4.07 (as applicable).
(f) To the fullest extent permitted by the DGCL and subject to any express agreement that may from time to time be in effect, the Company agrees that the Purchaser Designee, the Purchaser and any Affiliate or any portfolio company thereof (collectively, "Covered Persons") may, and shall have no duty not to, (i) invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, stockholder, equity holder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the same or similar lines of business as the Company or any of its Subsidiaries, (ii) do business with any client, customer, vendor or lessor of any of the Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the DGCL, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim it may have against a Covered Person. The Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person outside of his or her capacity as a member of the Board of Directors and (y) the Company or its Subsidiaries, the Covered Person shall provide Stifel with a reasonable not have any duty to offer or communicate information regarding such corporate opportunity to review and provide comments on the Company or its Subsidiaries. To the fullest extent permitted by the DGCL, the Company hereby renounces any portion interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge, except for any corporate opportunity which is expressly offered to a Covered Person in writing in his or her capacity as a member of the proxy materials relating Board of Directors, and waives any claim against each Covered Person arising from the fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the account of any Affiliate or other person, (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not communicate information regarding such corporate opportunity to the Stifel Nominee and Company; provided, that, in each such case, that any corporate opportunity which is expressly offered to a Covered Person in writing in his or her capacity as a member of the rights and obligations provided under this Agreement and Board of Directors shall belong to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating hereby acknowledges and agrees to indemnify any Purchaser Designee for actions brought against them for activities contemplated by this Section 4.07(f) and advance expenses of such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company Purchaser Designee in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessarythe defense thereof, in accordance with each case solely in their capacity as a director of the terms Company, to the fullest extent permitted under the laws of this Agreementthe State of Delaware and the Company's Certificate of Incorporation.
(eg) In The Company's obligations under this Section 4.07 with respect to any Purchaser Designee shall terminate and the event Purchaser shall have no designation or nomination rights hereunder with respect to the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, Purchaser Designee if (i) Stifel shall designate another Person as the Stifel Nominee Purchaser and its Purchaser Affiliates, collectively, cease to hold or Beneficially Own the provisions of Section 2 shall apply to such alternate Person and Minimum Ownership Threshold or (ii) the Company Purchaser or any of its Purchaser Affiliates, including any Purchaser Designee, is determined by a final, non-appealable order of a court having competent jurisdiction to be in material breach of any of Sections 4.02 or 4.03, and in such case the Purchaser Designee shall promptly appoint the Stifel Nominee offer to any such vacancy on resign from the Board created of Directors (and, if requested by the Stockholders failure Company, promptly deliver his written resignation to elect the Board of Directors (which shall provide for his immediate resignation), it being understood that it shall be in the Board of Directors' sole discretion whether to accept or consent reject such resignation). If any Purchaser Designee ceases to a Stifel Nomineesatisfy in all material respects the conditions and obligations set forth in clauses (c) through (d) of this Section 4.07, the Company may notify the Purchaser thereof and promptly following such notification, (x) the Purchaser Designee shall promptly offer to resign from the Board of Directors (and, if requested by the Company, promptly deliver his written resignation to the Board of Directors (which shall provide for his immediate resignation), it being understood that it shall be in the Board of Directors' sole discretion whether to accept or reject such resignation) and (y) the Purchaser shall be entitled to fill the vacancy created thereby in accordance with Section 4.07(e). The Purchaser agrees to cause, and agrees to cause its Affiliates to cause, any Purchaser Designee to resign from the Board of Directors if the applicable Purchaser Designee fails to resign if and when requested pursuant to this clause (g).
(h) For the avoidance of doubt, notwithstanding anything in no event shall this Agreement or the Company be required to nominate or appoint a Stifel Nominee Notes to the Board of Directors contrary, transferees of the Notes and/or the shares of Company if Common Stock (other than Affiliates of the Stockholders fail to elect or consent to such Stifel Nominee.
(fPurchaser who sign a Joinder) In the event that Stifel ceases to shall not have the right to designate a Person to serve as a director any rights pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately4.07.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Board Nomination. The Company agrees:
(a) For so long to include Xxxxx Xxxxx, Xxxxx Xxxxxx and XxxxXxxx Xxx or their respective Replacements (as Stifel holds ownership interests hereinafter defined) (each, an “Icahn Suggested Nominee”, and collectively, the “Icahn Suggested Nominees”) in its slate of nominees for election as directors of the Adviser Company at the Company’s 2010 annual meeting of stockholders (the “Adviser Interests2010 Annual Meeting”);
(b) equal that to at least 15% the extent any of Xxxxx Xxxxx, Xxxxx Xxxxxx or XxxxXxxx Xxx (except or their respective Replacements) is unable to serve as provided in Section 2(h)) of the total ownership interests in the Adviser (such time perioda nominee for election as director or to serve as a director, for any reason, the “Stifel Nomination Period”), Stifel Icahn Group shall have the right to designate in writing submit the name of a replacement (the “Stifel Nominee Notice”) a Person (the “Stifel NomineeReplacement”) to the Company for its approval (such determination to be made in the sole discretion of the Company acting in good faith) and who shall serve as the nominee for election as director or serve as director. If the proposed Replacement is not approved by the Company, the Icahn Group shall have the right to submit another proposed Replacement to the Company for its approval (such determination to be made in the sole discretion of the Company acting in good faith). The Icahn Group shall have the right to continue submitting the name of a proposed Replacement to the Company for its approval until the Company approves that such Replacement may serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve nominee for election as a member of the Board as part of the Company’s slate of directors at each annual director or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.
(b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in whereupon such event, Stifel shall be entitled to designate another Person person is appointed as the Stifel Nominee and the provisions Replacement;
(c) its slate of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee nominees for election as directors of the Company at the 2010 Annual Meeting shall have the right to object to any Stifel Nominee.not include Xxx Xxxxx, Xxxxxx X. Xxxxx and Xxxx X. Xxxx; and
(d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes use commercially reasonable efforts to cause the election of the Stifel Nominee at least 45 days prior Icahn Suggested Nominees to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt board of a Stifel Nominee Notice directors (the “Board”) at the 2010 Annual Meeting (including recommending that the Company’s stockholders vote in accordance with Section 2(a), the Board shall increase the size favor of the Board to create election of the Icahn Suggested Nominees and otherwise supporting them for election in a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), manner no less rigorous and favorable than the manner in which the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate supports its other nominees in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%aggregate).
Appears in 1 contract
Samples: Board Nomination Agreement (Take Two Interactive Software Inc)
Board Nomination. (a) For Subject to the terms and conditions of this Agreement, for so long as Stifel holds ownership interests in a principal amount of at least $62,500,000 remains outstanding under the Adviser Credit Agreement (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination PeriodThreshold”), Stifel FP shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member one of the Board. Subject nominees for election to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors a Class III Director (a “FP Designee”) at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company at which the Class III Directors are to stand for election, except such meetings for the purpose of filling vacancies or newly created directorships (orother than a vacancy to be filled by an FP Designee); provided, if permittedthat such FP Designee shall (i) be independent of FP Parent (for the avoidance of doubt, the nomination by FP Parent of a person to serve on the board of any action by written consent other company shall not (in and of itself) cause such person to not be deemed independent of FP Parent, but any current employee, director, partner or affiliate of FP Parent will not be deemed independent of FP Parent) and (ii) shall be otherwise acceptable to the Company in its reasonable discretion. If FP has the right to designate an FP Designee pursuant to this Section 1(a), the Company shall (x) include the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) in the slate of nominees to be elected to the Board at each meeting of stockholders of the StockholdersCompany at which the Class III Directors are to stand for election, except such meetings for the purpose of filling vacancies or newly created directorships (other than a vacancy to be filled by an FP Designee), (y) at include the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) in the proxy statement prepared by the Company in connection with soliciting proxies for any such meeting and (z) recommend and support the election of the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) in the same manner as it recommends and supports the election of any incumbent directors nominated for election to the Board, subject in each case to the FP Designee’s satisfaction of all applicable requirements regarding service as a director of the Company under applicable law and NYSE rules (or by the rules of the principal market on which the Common Stock is then listed) regarding service as a director and such other criteria and qualifications for service as a director applicable to non-employee directors of the Company are as in effect on the date thereof. At any time that FP and its Affiliates cease to be elected during satisfy the Stifel Nomination PeriodThreshold, the FP Designee (including, for the avoidance of doubt, any successor designated pursuant to Section 1(d)) shall promptly offer to resign from the Board in a writing delivered to the Board. For the avoidance of doubt, in the event that FP and recommend that its Affiliates cease to satisfy the Stockholders vote Nomination Threshold, FP will not regain the right to elect the Stifel Nominee at each such meeting or by such written consentdesignate a FP Designee.
(b) Subject The Company shall use commercially reasonable efforts to provide written notice to FP of the expected filing date of the proxy statement for its 2021 annual meeting of stockholders (the “2021 Proxy Statement”) at least ninety (90) days prior to such filing date. If FP notifies the Company of a designee satisfying the qualifications and conditions for an FP Designee set forth in Section 2(f1(a) at least sixty (60) days prior to the filing with the Securities and Exchange Commission of the 2021 Proxy Statement, then, as promptly as practicable, subject to compliance with Section 1(c), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed Board will appoint such designee to the Board pursuant to this Section 2, may be filled by serve as a Class III Director for a term expiring at the Board only with a Stifel Nominee, and 2021 annual meeting of the director so chosen shall hold office until the next election Company’s stockholders or until his or her successor is duly elected and qualified.
(c) The Company’s obligations pursuant to Section 1(a), 1(b) and 1(d) shall be subject to FP and the FP Designee timely providing, fully and completely, (i) any information required to be or customarily disclosed for directors, candidates for directors and their Affiliates in any filing or report of the Company under applicable law or stock exchange rules or listing standards, including without limitation the Company’s form director and officer questionnaire, (ii) any information that is required in connection with determining the eligibility and independence status of the FP Designee under applicable law and stock exchange rules or listing standards, (iii) if required by applicable law, such individual’s written consent to being named in a proxy statement as a nominee and to serving as director if elected and (iv) such other information with respect to director candidates as set forth in the Company’s corporate governance guidelines, nominating and corporate governance committee charter and/or bylaws, as each may be amended and/or restated from time to time, or until his or her earlier as reasonably requested by the Company from time to time with respect to FP and its Affiliates and the FP Designee, in each case, to the extent consistent with such non-employee information customarily requested from the Company’s other directors.
(d) If a vacancy occurs because of the death, resignation or removal. Notwithstanding the provisions of this Section 2disability, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the deathdisqualification, resignation or removal of the Stifel Nominee who was elected or appointed FP Designee, FP shall be entitled, subject to the Board pursuant conditions and qualifications set forth in Section 1(a) and to this Section 21(c), the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel Nominee.
(d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifelperson’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject tosuccessor, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase promptly fill the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill with such vacancysuccessor.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Board Nomination. (a) For so long as Stifel holds ownership interests OCM is committed to fund the Company or otherwise hold shares of common stock of the Company in an amount equal to, in the Adviser (the “Adviser Interests”) equal to aggregate, at least 15% one-third (except as provided in Section 2(h)33.33%) of the total ownership interests in OCM Commitment (the Adviser "OCM Interests") (such time period, the “Stifel "OCM Nomination Period”"), Stifel OCM shall have the right to designate in writing (the “Stifel "OCM Nominee Notice”") a Person person (the “Stifel "OCM Nominee”") to serve stand for election as a member of the Board. Subject to Section 2(c1(c) and Section 2(h)1(h) hereof, upon receipt of the Stifel initial OCM Nominee Notice, the Board shall nominate the Stifel OCM Nominee to serve as a member of the Board for a three year term ending no earlier than the 2019 annual meeting of the stockholders (the "Stockholders") of the Company. Thereafter, subject to Section 1(c) and Section 1(h) and upon the election of the initial OCM Nominee to the Board, during the OCM Nomination Period, the Board shall nominate the OCM Nominee to serve as a member of the Board as part of the Company’s 's slate of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected in which the term of any OCM Nominee will expire during the Stifel OCM Nomination Period, and recommend that the Stockholders vote to elect the Stifel OCM Nominee at each such meeting or by such written consent.
(b) Subject to Section 2(f1(f), vacancies arising through the death, resignation or removal of the Stifel OCM Nominee who was elected or appointed to the Board pursuant to this Section 21, may be filled by the Board only with a Stifel an OCM Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 21, in the event that Stifel OCM does not designate a Stifel an OCM Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel OCM Nominee who was elected or appointed to the Board pursuant to this Section 21, the Board may reduce the size of the Board pursuant to the provisions of the Company's Articles of Incorporation Amendment and Restatement (the "Articles") and Bylaws to eliminate any such vacancyvacancy and OCM will continue to have board observation rights.
(c) Notwithstanding the provisions of this Section 21, Stifel OCM shall not be entitled to designate a Person person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel OCM shall be entitled to designate another Person person as the Stifel OCM Nominee and the provisions of Section 2 1 shall apply to such alternate Personperson. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel OCM Nominee.
(d) During the Stifel OCM Nomination Period, the Company shall notify Stifel OCM in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel OCM Nominee at least 45 30 days prior to such expected mailing date. Following receipt of such Company notice, Stifel OCM shall deliver a Stifel an OCM Nominee Notice setting forth (i) the name and address of the Stifel OCM Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel OCM with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel OCM Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s OCM's reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel OCM of any opposition to a Stifel an OCM Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel OCM to propose a replacement Stifel OCM Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event that the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentencean OCM Nominee, (i) Stifel OCM shall be entitled to designate another Person person as the Stifel OCM Nominee and the provisions of Section 2 1 shall apply to such alternate Person person and (ii) the Company shall promptly appoint the Stifel OCM Nominee to any such the vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel an OCM Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel an OCM Nominee to the Board of Directors of the Company if the Stockholders fail have failed to elect or consent to such Stifel OCM Nominee.
(f) In the event that Stifel OCM ceases to have the right to designate a Person person to serve as a director pursuant to this Section 21, Stifel OCM shall use its best reasonable efforts to cause the applicable Stifel OCM Nominee to resign immediatelyimmediately to the extent consistent with such OCM Nominee's fiduciary duties.
(g) The Company agrees that at all times during the Stifel OCM Nomination Period (i) subject to applicable legal requirements, the Company's Articles and Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s OCM's rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s OCM's rights and obligations set forth herein; provided, however, if Stifel OCM has not designated a Person person to serve on the Board pursuant to this Section 21, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable 1(b) and OCM will continue to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their executionhave board observation rights.
(h) During the Stifel OCM Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel OCM Nominee and/or the failure of Stifel OCM to designate a Stifel an OCM Nominee in accordance with Section 2(b1(b), and (ii) Stifel OCM subsequently provides a Stifel an OCM Nominee Notice in accordance with Section 2(a1(a), not later than the 90th 60th day from the Company’s 's receipt of a Stifel an OCM Nominee Notice in accordance with Section 2(a1(a), the Board shall increase the size of the Board to create a vacancy for a Stifel an OCM Nominee to be nominated to fill and, subject to Section 2(c1(c), the Company shall appoint the Stifel OCM Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Board Nomination. (a) For so long as Stifel holds ownership interests OCM is committed to fund the Company or otherwise hold shares of common stock of the Company in an amount equal to, in the Adviser aggregate, at least one-third (33.33%) of the OCM Commitment (the “Adviser OCM Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel OCM Nomination Period”), Stifel OCM shall have the right to designate in writing (the “Stifel OCM Nominee Notice”) a Person person (the “Stifel OCM Nominee”) to serve stand for election as a member of the Board. Subject to Section 2(c1(c) and Section 2(h)1(h) hereof, upon receipt of the Stifel initial OCM Nominee Notice, the Board shall nominate the Stifel OCM Nominee to serve as a member of the Board for a three year term ending no earlier than the 2019 annual meeting of the stockholders (the “Stockholders”) of the Company. Thereafter, subject to Section 1(c) and Section 1(h) and upon the election of the initial OCM Nominee to the Board, during the OCM Nomination Period, the Board shall nominate the OCM Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company Stockholders (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected in which the term of any OCM Nominee will expire during the Stifel OCM Nomination Period, and recommend that the Stockholders vote to elect the Stifel OCM Nominee at each such meeting or by such written consent.
(b) Subject to Section 2(f1(f), vacancies arising through the death, resignation or removal of the Stifel OCM Nominee who was elected or appointed to the Board pursuant to this Section 21, may be filled by the Board only with a Stifel an OCM Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 21, in the event that Stifel OCM does not designate a Stifel an OCM Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel OCM Nominee who was elected or appointed to the Board pursuant to this Section 21, the Board may reduce the size of the Board pursuant to the provisions of the Company’s Articles of Incorporation Amendment and Restatement (the “Articles”) and Bylaws to eliminate any such vacancyvacancy and OCM will continue to have board observation rights.
(c) Notwithstanding the provisions of this Section 21, Stifel OCM shall not be entitled to designate a Person person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel OCM shall be entitled to designate another Person person as the Stifel OCM Nominee and the provisions of Section 2 1 shall apply to such alternate Personperson. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel OCM Nominee.
(d) During the Stifel OCM Nomination Period, the Company shall notify Stifel OCM in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel OCM Nominee at least 45 30 days prior to such expected mailing date. Following receipt of such Company notice, Stifel OCM shall deliver a Stifel an OCM Nominee Notice setting forth (i) the name and address of the Stifel OCM Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel OCM with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel OCM Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include StifelOCM’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel OCM of any opposition to a Stifel an OCM Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel OCM to propose a replacement Stifel OCM Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event that the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentencean OCM Nominee, (i) Stifel OCM shall be entitled to designate another Person person as the Stifel OCM Nominee and the provisions of Section 2 1 shall apply to such alternate Person person and (ii) the Company shall promptly appoint the Stifel OCM Nominee to any such the vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel an OCM Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel an OCM Nominee to the Board of Directors of the Company if the Stockholders fail have failed to elect or consent to such Stifel OCM Nominee.
(f) In the event that Stifel OCM ceases to have the right to designate a Person person to serve as a director pursuant to this Section 21, Stifel OCM shall use its best reasonable efforts to cause the applicable Stifel OCM Nominee to resign immediatelyimmediately to the extent consistent with such OCM Nominee’s fiduciary duties.
(g) The Company agrees that at all times during the Stifel OCM Nomination Period (i) subject to applicable legal requirements, the Company’s Articles and Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, StifelOCM’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with StifelOCM’s rights and obligations set forth herein; provided, however, if Stifel OCM has not designated a Person person to serve on the Board pursuant to this Section 21, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable 1(b) and OCM will continue to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their executionhave board observation rights.
(h) During the Stifel OCM Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel OCM Nominee and/or the failure of Stifel OCM to designate a Stifel an OCM Nominee in accordance with Section 2(b1(b), and (ii) Stifel OCM subsequently provides a Stifel an OCM Nominee Notice in accordance with Section 2(a1(a), not later than the 90th 60th day from the Company’s receipt of a Stifel an OCM Nominee Notice in accordance with Section 2(a1(a), the Board shall increase the size of the Board to create a vacancy for a Stifel an OCM Nominee to be nominated to fill and, subject to Section 2(c1(c), the Company shall appoint the Stifel OCM Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Samples: Stockholder Agreement (GSV Growth Credit Fund Inc.)
Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) Combined Ownership Percentage is equal to at least 15% or greater than six percent (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination Period”6%), Stifel (i) Stockholder shall have the right to designate in writing nominate for election to the Board, with respect to each meeting of stockholders of the Company at which directors are to be elected, the number of directors (the each a “Stifel Nominee NoticeDirector Designee”) representing such percentage of the total number of directors to be elected at such meeting as would be equal to the Combined Ownership Percentage as of the record date for such meeting, rounded up to the nearest whole number, provided, however, that, (i) when the Combined Ownership Percentage is greater than 50 percent (50%), the number of Director Designees shall represent 75 percent (75%) of the total number of directors to be elected at such meeting, rounded to the nearest whole number, and two (2) such Director Designees shall satisfy the independent director requirements under Nasdaq Equity Rule 5605(c)(2)(A) (any such Person, an “Independent Director”), as determined in good faith by the Nominating and Governance Committee (as defined below) and (ii) if the Combined Ownership Percentage is less than or equal to 50 percent (50%), at least one-third of such Director Designees, rounded down to the nearest whole number, must qualify as Independent Directors, as determined in good faith by the Nominating and Governance Committee.
(b) In the event a Person (decrease in the “Stifel Nominee”) Combined Ownership Percentage reduces the number of Director Designees that Stockholder is entitled to serve as nominate herein, the parties hereto agree that the reduction in the number of Director Designees shall be reduced in number in accordance with Section 2.2(a). For the avoidance of doubt, no decrease in the authorized number of directors on the Board shall shorten the term of any incumbent director. In the event that there is a member vacancy on the Board and Stockholder is not entitled to nominate a Director Designee for such vacancy, such nomination shall be made in accordance with the policies and procedures of the Nominating and Governance Committee; provided, however, that in the event of any vacancy resulting from an increase in the size of the Board. Subject , the Company and Stockholder shall take all Necessary Action to cause the number of Director Designees on the Board following such increase to equal the number of Director Designees the Stockholder would be entitled to nominate at an annual meeting of stockholders pursuant to Section 2(c2.2(a).
(c) and Section 2(h)The Company shall take all Necessary Action to ensure that, upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each any annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (or, if permitted, by any action by written consent of the Stockholders) at or by which directors of the Company are to be elected during elected, subject to the Stifel Nomination Period, and recommend that fulfillment of the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.
(b) Subject to Section 2(frequirements set forth in Sections 2.2(a), vacancies arising through Director Designees are included in the death, resignation or removal slate of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled nominees recommended by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next for election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel Nomineedirectors.
(d) During the Stifel Nomination Period, the Company shall notify Stifel in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth Any Director Designee (i) shall be reasonably acceptable to the name Board’s Nominating and address of the Stifel Nominee Governance Committee (as defined below) and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments comply in all respects with the Company’s corporate governance guidelines as in effect from time to time. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company Stockholder shall notify Stifel the Company of any opposition to a Stifel Nominee sufficiently proposed Director Designee in advance of writing no later than the latest date on which such proxy materials are to be mailed by stockholders of the Company in connection with such election of directors so as may make nominations to enable Stifel to propose a replacement Stifel Nominee, if necessary, the Board in accordance with the terms Company’s bylaws, together with all information concerning such nominee required to be delivered to the Company by its bylaws and such other information reasonably requested by the Company; provided that in each such case, all such information is generally required to be delivered to the Company by the other outside directors of this Agreementthe Company (the “Nominee Disclosure Information”); provided further that in the event that Stockholder fails to provide any such notice, the Director Designee(s) shall be the Person(s) then serving as the Director Designee(s), as applicable, as long as Stockholder provides the Nominee Disclosure Information to the Company promptly upon request by the Company.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2death, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the deathdisability, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a)Director Designee, the Board shall increase the size of will take all Necessary Action to elect to the Board to create a vacancy for a Stifel Nominee to be nominated to fill andreplacement director designated by Stockholder, subject to the fulfillment of the requirements set forth in Section 2(c2.2(d), the Company shall appoint the Stifel Nominee to the Board to fill the resulting vacancy, and such vacancy.
(i) The Stifel Nomination Period individual shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall then be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if Director Designee for all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%)purposes under this Agreement.
Appears in 1 contract
Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser If (the i) either (1) a person affiliated with ValueAct Capital Management, L.P. or its affiliates (“Adviser InterestsValueAct”) equal to at least 15% (except as provided in Section 2(h)currently Xxxxxxx X. Xxxxx) of the total ownership interests in the Adviser or (such time period2) a person affiliated with Longview Asset Management, the LLC or its affiliates (“Stifel Nomination PeriodLongview”) (currently Xxxxx X. Star), Stifel shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee ceases to serve as a member of the Board for any reason in a circumstance, in either case, in which a replacement director that is a person affiliated with such stockholder is not promptly appointed, the Board shall promptly appoint the Xxxx Designee to serve as part a director on the Board and thereafter nominate or renominate, as applicable, the Xxxx Designee for election to the Board at the Company’s 2017 and 2018 annual meeting of stockholders; (ii) the Board fails to nominate both a director who is a person affiliated with ValueAct and a person affiliated with Longview for election to the Board at the Company’s 2017 or 2018 annual meeting of stockholders, the Board shall nominate or renominate, as applicable, the Xxxx Designee for election as a director at the Company’s 2017 and 2018 annual meetings of stockholders; or (iii) either ValueAct or Longview ceases to beneficially own at least 5% of the Company’s slate outstanding Common Stock, the Board shall nominate or renominate, as applicable, the Xxxx Designee for election as a director at the Company’s 2017 and 2018 annual meetings of directors at each annual or special meeting stockholders; provided that, in the case of any of the stockholders foregoing clauses (i) to (iii) of this Section 1(a), (x) the “Stockholders”Company shall have completed, to its satisfaction, a customary background check on the Xxxx Designee, (y) the Board does not conclude in which the term of any Stifel Nominee will expire and good faith, after consultation with outside legal counsel, that such appointment would constitute a breach of the Company directors’ fiduciary duties (or, if permitted, by any action by written consent of it being acknowledged that to the Stockholders) at or by which directors of extent the Board makes such a determination the Company are shall promptly inform the Xxxx Group of such determination and a replacement candidate shall be selected pursuant to be elected during the Stifel Nomination PeriodSection 1(e) below), and recommend that (z) under no circumstances shall the Stockholders vote Board be obligated to elect the Stifel Nominee at each such meeting appoint, nominate or by such written consent.
(b) Subject to Section 2(f), vacancies arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed renominate more than one Xxxx Designee to the Board pursuant to this Section 21(a).
(b) As a condition to the Xxxx Designee’s appointment to the Board, may the Xxxx Group, including the Xxxx Designee, agrees to provide to the Company information required to be filled or customarily disclosed for directors, candidates for directors, and their affiliates and representatives in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations, and such other information as reasonably requested by the Board only Company from time to time with a Stifel Nominee, respect to the Xxxx Group and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancyXxxx Designee.
(c) Notwithstanding The Xxxx Designee agrees that, at all times while serving as a member of the Board, he will (i) meet all director independence and other standards of the Company, the New York Stock Exchange and the Securities and Exchange Commission (“SEC”) and applicable provisions of this Section 2the Securities Exchange Act of 1934, Stifel shall not be entitled to designate a Person as a nominee to amended (the Board if “Exchange Act”), and the Nominating rules and Corporate Governance Committee of the Company reasonably determines in writing regulations promulgated thereunder, including Rule 10A-3; and (which determination shall set forth the reasonable grounds for such determinationii) that such Person would not be qualified under any applicable law, rule or regulation to serve as a director under the Delaware General Corporation Law (the “DGCL”) (clauses (i) and (ii), the “Conditions”). The Xxxx Designee will promptly advise the Nominating Committee if he ceases to satisfy any of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person. Only the Nominating and Corporate Governance Committee of the Company shall have the right to object to any Stifel NomineeConditions.
(d) During At all times while serving as a member of the Stifel Nomination Board, the Xxxx Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to Board members, including the Company’s Code of Business Conduct, Xxxxxxx Xxxxxxx Policy, Executive Stock Ownership Policy as in effect on the date hereof, and Corporate Governance Guidelines, and (except as permitted by the Confidentiality Agreement (as defined in Section 7 below)) preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees to the extent not disclosed publicly by the Company.
(e) So long as the Xxxx Group collectively beneficially owns, in the aggregate, at least 5% of the outstanding Common Stock, if, during the Covered Period, a vacancy on the Board is created as a result of the Xxxx Designee’s ceasing to serve as a director for any reason then the Xxxx Group and the Company (acting through the Board) shall notify Stifel work together in writing of good faith to fill such vacancy or replace such nominee with an individual who (A) meets the date on which proxy materials are expected to be mailed Conditions, (B) meets the historical standards and criteria applied by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company noticenominating and appointing directors, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (iiC) the information required for director nominees under Items 401, 403 and 404 is otherwise mutually acceptable (in each of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating their sole discretion) to the Stifel Nominee Xxxx Group and the rights Company, and obligations provided thereafter such individual shall serve and/or be nominated as the “Xxxx Designee” under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(ef) In The Company’s obligations hereunder shall terminate immediately, and the event Xxxx Designee shall promptly offer to resign from the Stockholders fail Board, and any committee of the Board on which he then sits (and, if requested by the Company, promptly deliver his written resignation to elect the Board (which shall provide for his immediate resignation) it being understood that it shall be in the Board’s sole discretion whether to accept or consent to a Stifel Nominee in accordance with the preceding sentence, reject such resignation) if: (i) Stifel shall designate another Person as members of the Stifel Nominee Xxxx Group, collectively, cease to beneficially own at least 5% of the Company’s outstanding Common Stock; (ii) the Xxxx Designee ceases to satisfy the conditions set forth in clauses (c)-(d) above; (iii) a member of the Xxxx Group, including the Xxxx Designee, otherwise ceases to comply or breaches any of the terms of this Agreement or the Confidentiality Agreement in any material respect and such breach continues after notice from the Company and a 10 day opportunity to cure; or (iv) the employment of the Xxxx Designee with the Xxxx Group is terminated for any reason. The Xxxx Group agrees to cause the Xxxx Designee to resign from the Board if the Xxxx Designee fails to resign if and when requested pursuant to this Section 1(f). Notwithstanding the foregoing, in the event of the occurrence of an event set forth in subsection (ii) or (iv) above, the provisions of Section 2 1(e) must be complied with and the Company’s obligations hereunder shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediatelynot terminate.
(g) The Company agrees that at all times during the Stifel Nomination Period percentage thresholds set forth in clauses (ie) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and (f) above shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior be deemed unsatisfied to the signing extent a failure to maintain the specified ownership thresholds is the result of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event share issuances or similar Company actions that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size number of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancyoutstanding shares of Common Stock.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%).
Appears in 1 contract
Samples: Cooperation Agreement (Allison Transmission Holdings Inc)
Board Nomination. (a) For so long as Stifel holds ownership interests in the Adviser (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time period, the “Stifel Nomination Period”), Stifel shall have the right to designate in writing (the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of the Board. Subject to Section 2(c) and Section 2(h1(d), upon receipt of and unless the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company PL Capital Designee has resigned (or, if permitted, by any action by written consent the PL Capital Designee is not then a director of the Stockholders) at or by which directors Company, could have been required to resign if the PL Capital Designee were then a director of the Company are to be elected during the Stifel Nomination Period, and recommend that the Stockholders vote to elect the Stifel Nominee at each such meeting or by such written consent.
(bCompany) Subject pursuant to Section 2(f), vacancies arising through the death, resignation 1(b) or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable law, rule or regulation refused to serve as a director of the Company; provided, that in such event, Stifel shall be entitled to designate another Person as the Stifel Nominee Nominating Committee and the provisions Board shall (i) at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, nominate the PL Capital Designee for election as a director of Section 2 shall apply to the Company, together with the other persons so nominated on the Company’s slate in the Company’s proxy statement or proxy card for such alternate Person. Only annual meetings, with terms expiring at the Nominating Company’s next annual shareholders’ meeting following the 2015 Annual Meeting, the 2016 Annual Meeting and Corporate Governance Committee the 2017 Annual Meeting, respectively, (ii) recommend that the shareholders of the Company vote to elect the PL Capital Designee as a director of the Company at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, and (iii) solicit proxies for the election of the PL Capital Designee as a director of the Company at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting in the same manner as it does for all the other members of the Company’s slates. Subject to compliance with applicable laws and regulations, and to the extent consistent with the treatment of other members of the Board, the Company shall, upon the initial election of the PL Capital Designee as a director of the Company, and, thereafter, if the PL Capital Designee is re-elected as a director of the Company, cause the PL Capital Designee to be appointed, or nominated and elected, as a member of Metro Bank’s board of directors (the “Bank Board”) with terms commensurate with the PL Capital Designee’s terms as a director of the Company; provided that if the PL Capital Designee voluntarily resigns from the Board, the PL Capital Designee shall simultaneously resign as a member of the Bank Board. Upon the initial election of the PL Capital Designee to the Board and, thereafter, upon the reasonable request of the PL Capital Designee, the Board shall consult with the PL Capital Designee regarding the appointment of the PL Capital Designee to one or more committees of each of the Board and the Bank Board, with the understanding that the intent of the parties is that the PL Capital Designee shall be considered for membership on committees of the Board and the Bank Board in a similar manner to other members of the Board and the Bank Board.
(b) At any time while serving as a member of the Board or the Bank Board, the PL Capital Designee shall resign as a member of the Board and the Bank Board immediately at the written request of the Board if (i) the PL Capital Group does not own, in the aggregate, shares of Common Stock equal to at least 5.0% of the outstanding shares of Common Stock (based on the number of shares of Common Stock most recently identified by the Company as outstanding in (x) any of the Company’s Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or definitive proxy statement on Schedule 14A, in each case, as filed by the Company with the Securities and Exchange Commission (“SEC”), or (y) a written notice by the Company to the PL Capital Group) or (ii) the Board (acting through a resolution of a majority of its members) determines that any Member of the PL Capital Group has materially breached the terms of this Agreement and has failed to cure such breach within 15 calendar days following written notice from the Company to such Member describing such breach in reasonable detail.
(c) Each Member of the PL Capital Group shall, and shall cause each “affiliate” and “associate” (as such terms are defined in Rule 12b-2 promulgated by the SEC under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) of such Member of the PL Capital Group (collectively and individually the “PL Capital Affiliates”) to, cause all shares of Common Stock beneficially owned, directly or indirectly, by it to be present for quorum purposes and to be voted at any meeting of shareholders (including the 2015 Annual Meeting, the 2016 Annual Meeting, the 2017 Annual Meeting and any special meeting of shareholders) or at any adjournments or postponements thereof, and to consent in connection with any action by consent in lieu of a meeting, (i) in favor of each director nominated and recommended by the Board for election at any such meeting, (ii) against any shareholder nominations for director that are not approved and recommended by the Board for election at any such meeting, (iii) against any proposals or resolutions to remove any member of the Board and (iv) in accordance with the Board’s recommendation for each other proposal if the PL Capital Designee has voted for, or abstained from voting on, such recommendation in his capacity as a director.
(d) As a condition to the PL Capital Designee’s nomination for election to the Board at the 2015 Annual Meeting, the 2016 Annual Meeting and the 2017 Annual Meeting, the PL Capital Group and the PL Capital Designee agree to provide to the Company information required to be disclosed for directors, candidates for directors and their affiliates and representatives in a proxy statement or other filings under applicable laws, regulations or stock exchange rules or listing standards, information in connection with assessing the eligibility, independence and other criteria applicable to directors and information on compliance with applicable laws or regulations, in each case, to the extent such information is being requested of all directors of the Company, including a fully completed copy of the Company’s director questionnaire in the form provided to all directors of the Company and such other information as reasonably requested by the Company from time to time with respect to the PL Capital Group and the PL Capital Designee.
(e) The PL Capital Designee shall, at all times while serving as a member of the Board or the Bank Board, (i) meet all director independence standards of the Company and Metro Bank and, with respect to service on the Board, The NASDAQ Stock Market (“NASDAQ”) and the Exchange Act, including the rules and regulations promulgated thereunder, (ii) with respect to service on the Board, be qualified to serve as a director under the Pennsylvania Business Corporation Law (the “BCL”) and the Company’s Bylaws and, with respect to service on the Bank Board, the Pennsylvania Banking Code of 1965 and the Bylaws of Metro Bank and (iii) comply with the Xxxxxxx Antitrust Act, the Depository Institution Management Interlocks Act (“DIMIA”) and the rules and regulations promulgated thereunder. Upon the request of the PL Capital Designee, the Company shall use its reasonable efforts to assist the PL Capital Designee in seeking to obtain an exemptive order pursuant to DIMIA or the rules and regulations promulgated thereunder with respect to the PL Capital Designee’s serving as a director of the Company or Metro Bank.
(f) At all times while serving as a director of the Company or Metro Bank, the PL Capital Designee will receive the same benefits of directors’ and officers’ insurance and any indemnity and exculpation arrangements available generally to the other non-executive members of the Board and the Bank Board, as the case may be, and the same compensation and other benefits for his service as a director as the compensation and other benefits received by the other non-executive members of the Board and the Bank Board, as the case may be.
(g) Except as otherwise set forth in this Section 1(g), at all times while serving as a member of the Board or the Bank Board, the PL Capital Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to members of the Board or the Bank Board (as each may be amended from time to time for all directors). Upon the request of the PL Capital Designee, the Company shall make available to the PL Capital Designee copies of all such policies, procedures, processes, codes, rules, standards and guidelines that are in writing and in effect as of the date of such request. At all times while the PL Capital Designee is serving as a member of the Board or the Bank Board, (i) the PL Capital Designee shall not disclose to the PL Capital Group, any PL Capital Affiliate or any Third Party (as defined in Section 2(a)(ii)) any confidential information of the Company or Metro Bank, and (ii) each Member of the PL Capital Group shall not, and shall cause the PL Capital Affiliates not to, seek to obtain confidential information of the Company or Metro Bank from the PL Capital Designee; provided that, notwithstanding the foregoing, the PL Capital Designee may discuss confidential information with a principal of PL Capital, LLC (“PL Capital”) in accordance with and subject to the terms of the Non-Disclosure Agreement, the form of which is attached hereto as Exhibit A (the “Non-Disclosure Agreement”), after the Non-Disclosure Agreement has been mutually executed and delivered by the Company, the PL Capital Designee, the principal of PL Capital and PL Capital.
(h) If the PL Capital Designee is elected as a director of the Company at the 2015 Annual Meeting and thereafter, during the Covered Period (as defined in Section 5(a)), the PL Capital Designee is unable or ceases to serve on the Board due to the PL Capital Designee’s death, disability or resignation (other than a resignation pursuant to Section 1(b)), then (x) the PL Capital Group shall have the right to object recommend a substitute person to fill the resulting vacancy (as well as any Stifel Nominee.
related resulting vacancy on the Bank Board), (dy) During the Stifel Nomination PeriodBoard shall promptly appoint such replacement director to the Board (any such replacement director appointed in accordance with this Section 1(h) shall thereafter be deemed a “PL Capital Designee” under this Agreement), and (z) subject to compliance with applicable laws and regulations, the Company shall notify Stifel cause such replacement director to be appointed to the Bank Board in writing a manner consistent with other members of the date on which proxy materials are expected to be mailed Board; provided that such replacement shall (i) satisfy the conditions set forth in Section 1(e), (ii) meet the standards and criteria applied by the Company in connection with an election of directors at an annual or special meeting nominating and appointing directors, (iii) have relevant financial and business experience, (iv) be mutually satisfactory to the PL Capital Group and the Board, provided that the approval of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company noticeBoard shall not be unreasonably withheld or delayed, Stifel shall and (v) if not a party hereto, execute and deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity joinder to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and agree to discuss any such comments with be bound by the Company. The Company shall include Stifel’s reasonable comments in terms hereof applicable to the proxy materials relating to such matters. The Company shall notify Stifel PL Capital Designee; provided, further, that the appointment of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessary, in accordance with the terms of this Agreement.
(e) In the event the Stockholders fail to elect or consent to a Stifel Nominee in accordance with the preceding sentence, (i) Stifel shall designate another Person as the Stifel Nominee and the provisions of Section 2 shall apply to such alternate Person and (ii) the Company shall promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel 1(h) shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) be subject to applicable legal requirements, the Bylaws Board’s exercise of its fiduciary duties and the Articles satisfactory completion of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and its customary due diligence process (ii) the Company shall not enter into any other agreements or understandings that in any way conflict with Stifel’s rights and obligations set forth herein; provided, however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(b). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing of such documentation and (y) fully executed copies of such documentation promptly following their execution.
(h) During the Stifel Nomination Period, in the event that (i) the Board has reduced the size of the Board to eliminate a vacancy arising through the death, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(b), and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than the 90th day from the Company’s receipt including its review of a Stifel Nominee Notice in accordance with Section 2(a)questionnaire for directors and director nominees, the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event of such a pro rata transfer, the 15% threshold set forth the definition of “Stifel Nomination Period” shall be deemed reduced by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%background check and interviews).
Appears in 1 contract
Samples: Nomination and Standstill Agreement (Metro Bancorp, Inc.)
Board Nomination. (a) For so long as Stifel holds ownership interests in Pursuant to the Adviser (the “Adviser Interests”) equal to at least 15% (except as provided in Section 2(h)) of the total ownership interests in the Adviser (such time periodterms and conditions set forth herein, the “Stifel Nomination Period”), Stifel Nominating Parties shall have the right to jointly designate one individual (any such individual jointly designated by the Nominating Parties from time to time in writing (accordance with this Agreement, including any alternate nominee, the “Stifel Nominee Notice”) a Person (the “Stifel Nominee”) to serve as a member of director on the Board. Subject to Section 2(c) and Section 2(h), upon receipt of the Stifel Nominee Notice, the Board shall nominate the Stifel Nominee to serve as a member of the Board as part of the Company’s slate board of directors at each annual or special meeting of the stockholders (the “Stockholders”) in which the term of any Stifel Nominee will expire and of the Company (orthe “Party City Board”); provided, if permitted, by any action by written consent of that the StockholdersNominee shall meet the requirements specified in Section 1(f) at or by which directors and be reasonably acceptable to (x) the Nominating and Governance Committee of the Company are to be elected during (the Stifel Nomination Period“Nominating & Governance Committee”), on the one hand, and recommend (y) each Nominating Party, on the other hand, as provided in writing (email being sufficient) by each Nominating Party. The Company and the Nominating Parties agree that the Stockholders vote to elect the Stifel initial Nominee at each such meeting or by such written consentshall be Xx. Xxxx Xxxxxxx.
(b) Subject to For so long as the Nominating Parties have the rights specified in Section 2(f1(a), vacancies arising through the deathNominating & Governance Committee will designate an independent director from the Party City Board (the “Anagram Appointee”), resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, may be filled as selected by the Board only with a Stifel Nominee, and the director so chosen shall hold office until the next election or until his or her successor is duly elected and qualified, or until his or her earlier death, resignation or removal. Notwithstanding the provisions of this Section 2, in the event that Stifel does not designate a Stifel Nominee to fill any vacancy arising through the death, resignation or removal of the Stifel Nominee who was elected or appointed to the Board pursuant to this Section 2, the Board may reduce the size of the Board pursuant to the provisions of the Articles of Incorporation and Bylaws to eliminate any such vacancy.
(c) Notwithstanding the provisions of this Section 2, Stifel shall not be entitled to designate a Person as a nominee to the Board if the Nominating and Corporate & Governance Committee of the Company reasonably determines in writing (which determination shall set forth the reasonable grounds for such determination) that such Person would not be qualified under any applicable lawits sole and absolute discretion, rule or regulation to serve as a director of the Company; providedboard of directors of Anagram International Inc., that a Minnesota corporation (the “Anagram Board”). The Anagram Board will appoint the initial Anagram Appointee no later than September 30, 2020.
(c) Until the earlier of (x) August 15, 2025, (y) in the event the New Money First Lien Issuer Notes (as defined in the TSA) are accelerated or otherwise become due prior to August 15, 2025 in accordance with the indenture governing the New Money First Lien Issuer Notes, such eventearlier date, Stifel shall be entitled to designate another Person as and (z) the Stifel Nominee termination of this Agreement under Section 3 (the earlier of (x), (y), and (z) the provisions of Section 2 shall apply to such alternate Person. Only “Cutoff Date”), the Nominating and Corporate Governance Committee of the Company Parties shall have the right to object deliver a written notice (the “Nominee Notice”) to the Company from time to time, identifying a Nominee. For any Stifel Nominee Notice delivered after the appointment of Mr. Alsfine, as the initial Nominee, the Nominating Parties will also deliver at the time such Nominee Notice is delivered pursuant to this Section 1(c) written confirmation, signed by each of the Nominating Parties, that the aggregate principal amount of New Money First Lien Issuer Notes held by all the Nominating Parties is not less than $40,000,000. In connection with the appointment of Mr. Alsfine, the Company shall, as promptly as practicable (1) take all corporate and other actions necessary to increase the number of directors on the Party City Board to add one director to the Party City Board in accordance with the Company’s certificate of incorporation and by-laws as in effect at such time; and (2) cause Mr. Alsfine to be appointed as a director of the Party City Board. The Nominating Parties may not deliver a Nominee Notice while a Nominee is serving on the Party City Board, unless a vacancy occurs in accordance with Section 1(d).
(d) During Until the Stifel Nomination PeriodCutoff Date, the Company shall: (A) (i) nominate the Nominee for election or re-election (as the case may be) to the Party City Board; (ii) include the Nominee on its slate of nominees for election or re-election (as the case may be) of directors to the Party City Board that is distributed to stockholders of the Company; (iii) recommend the Nominee to its stockholders at the meeting of the stockholders of the Company held to consider a vote on the election or re-election (as the case may be) of directors to the Party City Board; and (iv) not take any action inconsistent with or designed to interfere with the election or re-election (as the case may be) of the Nominee to the Party City Board in accordance with the terms and conditions of this Agreement; and (B) as the indirect sole stockholder of Anagram, take all necessary action to nominate, appoint and elect the Anagram Appointee to the Anagram Board, including causing to be voted (or a written consent to be executed in respect of) all of the equity or equity-linked securities of Anagram with respect to such nomination, appointment, and election. In the event the Nominee is not elected or re-elected (as the case may be) by the Company’s stockholders (e.g., in a contested election or, in the event the Company adopts a majority voting standard for uncontested elections of directors, fails to receive a majority of the votes cast in favor of election), then the Nominating Parties shall have the right to immediately nominate a different Nominee pursuant to Section 1(a) who shall be considered by the Nominating & Governance Committee as promptly as practicable thereafter in accordance with this Section 1. If a Nominee is not reasonably acceptable to the Nominating & Governance Committee in accordance with Section 1(a), then the Company shall notify Stifel in writing the Nominating Parties immediately and the Nominating Parties shall have the ability to propose an alternate Nominee until such proposed Nominee is reasonably acceptable to the Nominating & Governance Committee. If a vacancy occurs on the Party City Board with respect to a seat occupied by the Nominee (by reason of such individual’s death, disability, resignation or otherwise), the date on which proxy materials are expected Nominating & Governance Committee shall cause a replacement Nominee to be mailed appointed to fill such vacancy on the Party City Board as promptly as practicable following his or her designation by the Company in connection with an election of directors at an annual or special meeting of the Stockholders that includes the election of the Stifel Nominee at least 45 days prior to such expected mailing date. Following receipt of such Company notice, Stifel shall deliver a Stifel Nominee Notice setting forth (i) the name and address of the Stifel Nominee and (ii) the information required for director nominees under Items 401, 403 and 404 of Regulation S-K under the federal securities laws. The Company shall provide Stifel with a reasonable opportunity to review and provide comments on any portion of the proxy materials relating to the Stifel Nominee and the rights and obligations provided under this Agreement and to discuss any such comments with the Company. The Company shall include Stifel’s reasonable comments in the proxy materials relating to such matters. The Company shall notify Stifel of any opposition to a Stifel Nominee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Stifel to propose a replacement Stifel Nominee, if necessaryNominating Parties, in accordance with the terms and conditions of this Agreement. If a vacancy occurs on the Anagram Board with respect to a seat occupied by the Anagram Appointee (by reason of such individual’s death, disability, resignation or otherwise), the Company shall promptly appoint a new Anagram Appointee to the Anagram Board in accordance with Section 1(b).
(e) In the event the Stockholders fail The Nominee shall be entitled to elect or consent all rights, privileges and benefits (including rights to indemnification pursuant to a Stifel Nominee customary director indemnification agreement and compensation in accordance with the preceding sentence, Company’s then-existing non-employee director compensation program) from the Company generally applicable to members of the Party City Board as in effect from time to time.
(f) The Nominee shall: (i) Stifel shall designate another Person as meet all applicable director independence standards of the Stifel Nominee New York Stock Exchange, the Securities and Exchange Commission, applicable provisions of the Securities Exchange Act of 1934 (the “Exchange Act”), and the provisions rules and regulations promulgated thereunder and independence standards adopted by the Company generally applicable to the Party City Board members; (ii) be qualified to serve as a director under the Delaware General Corporation Law; (iii) comply with all policies, procedures, processes, codes, rules, standards and guidelines of the Company, including the Company’s director qualification standards in the Company’s Corporate Governance Guidelines, generally applicable to the Party City Board members as in effect from time to time; and (iv) agree in writing to comply with his/her fiduciary duties to the Company and its stockholders.
(g) Prior to the Party City Board considering whether the Nominee is reasonably acceptable in accordance with the proviso in Section 2 shall apply to such alternate Person 1(a): (i) the Nominee must complete a form of director and officer questionnaire and furnish any additional information reasonably requested by the Company; and (ii) the Company shall complete or have completed promptly appoint the Stifel Nominee to any such vacancy on the Board created by the Stockholders failure to elect or consent to (x) a Stifel Nominee. For the avoidance of doubt, in no event shall the Company be required to nominate or appoint a Stifel Nominee customary background check with respect to the Board of Directors of the Company if the Stockholders fail to elect or consent to such Stifel Nominee.
(f) In the event that Stifel ceases to have the right to designate a Person to serve as a director pursuant to this Section 2, Stifel shall use its best efforts to cause the applicable Stifel Nominee to resign immediately.
(g) The Company agrees that at all times during the Stifel Nomination Period (i) subject to applicable legal requirements, the Bylaws and the Articles of Incorporation shall accommodate, be subject to, and shall not in any way conflict with, Stifel’s rights and obligations set forth herein and (iiy) the Company shall not enter into any other agreements or understandings reasonable and bona fide procedures that in any way conflict with Stifel’s rights and obligations set forth herein; providedare typically required for director nominees (e.g., however, if Stifel has not designated a Person to serve on the Board pursuant to this Section 2, the Board may reduce the size of the Board to eliminate any vacancies on the Board as provided in Section 2(binterviews). The Company further agrees that it shall not enter into any agreements or understandings with any Stockholders (other than agreements or understandings equally applicable to all Stockholders) without prior notice to Stifel; provided, that such procedures do not unreasonably delay the Company shall provide to Stifel (x) substantially final copies of all documentation relating to such agreements or understandings no later than five (5) business days prior to the signing effectiveness of such documentation and (y) fully executed copies of such documentation promptly following their executionnomination.
(h) During the Stifel Nomination Period, in In the event that any Nominating Party sells, transfers or otherwise disposes of any of its New Money First Lien Issuer Notes prior to the Cutoff Date to any person other than to any of its affiliates and/or related funds (a “Third-Party Transfer”) and, following such Third-Party Transfer, such Nominating Party and its affiliates and/or related funds cease to collectively hold at least 50% of the New Money First Lien Issuer Notes held by such Nominating Parties as of the date hereof, (i) such Nominating Party shall promptly notify each other Nominating Party and the Board has reduced the size of the Board to eliminate a vacancy arising through the deathCompany, resignation or removal of the Stifel Nominee and/or the failure of Stifel to designate a Stifel Nominee in accordance with Section 2(bwriting (email being sufficient), thereof and (ii) Stifel subsequently provides a Stifel Nominee Notice in accordance with Section 2(a), not later than upon the 90th day from the Company’s receipt of a Stifel Nominee Notice in accordance with Section 2(a), the Board shall increase the size of the Board to create a vacancy for a Stifel Nominee to be nominated to fill and, subject to Section 2(c), the Company shall appoint the Stifel Nominee to the Board to fill such vacancy.
(i) The Stifel Nomination Period shall not terminate in the event Stifel’s ownership of Adviser Interests falls below 15% as a result of a transfer of Adviser Interests made on a pro rata basis with all members of the Adviser. In the event consummation of such a pro rata transferThird-Party Transfer, the 15% threshold set forth the definition such Nominating Party and each of “Stifel Nomination Period” its affiliates and/or related funds shall no longer be deemed reduced a “Nominating Party” for purposes of this Agreement and their rights hereunder shall automatically and immediately terminate and be of no further force or effect without any further action by a percentage equal to the percentage by which Stifel’s ownership of Adviser Interests was reduced in such pro rata transfer (by way of example only, if all existing members transfer 10% of their Adviser Interests to a third party, the 15% threshold shall become 13.5%)any party hereto or any other person.
Appears in 1 contract
Samples: Board Nomination Agreement (Party City Holdco Inc.)
