Board of Directors and Committees. (a) Each of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has not designated such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated. (b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following: (i) with respect to the three (3) persons to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock; (ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx; (iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and (iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above. (c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed. (d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause: (i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; (ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and (iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed. (e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof. (f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Shareholder Agreements (Realpage Inc), Shareholder Agreements (Realpage Inc)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Company Shares pursuant to the Offer and from time to time thereafter (for so long as Parent or Merger Sub owns such Company Shares), Parent shall be entitled to designate up to such number of directors, rounded down to the nearest whole number, but constituting at least a majority of the parties hereto agrees directors, on the Company Board as will give Parent representation on the Company Board equal to vote the product of the number of directors on the Company Board (giving effect to any increase in the number of directors pursuant to this Section 2.3) and the percentage that the number of Company Shares beneficially owned by Parent and Merger Sub bears to the total number of then outstanding Company Shares, and the Company shall use all Capital Stock commercially reasonable efforts to, upon request by Parent, promptly, at the Company’s election, either increase the size of the Company now owned Board or hereafter acquired secure the resignation of such number of directors as is necessary to enable Parent’s designees to be so elected or appointed to the Company Board and to cause Parent’s designees to be so elected or appointed. At such times, the Company will use its best efforts to cause persons designated by such party Parent and duly elected or appointed to constitute the chairman and a majority of each committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all commercially reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time. Parent shall designate an adequate number of persons so that the Company’s Board audit committee of Directors the Company has at least three members, and each of the persons designated by Parent to serve on the audit committee of the Company shall consist be an “independent director” as defined by Rule 5605(a)(2) of no more than nine (9) members the Nasdaq Marketplace Rules and the number of members eligible to serve on the Company’s Board audit committee under the Exchange Act and Nasdaq Marketplace Rules, and at least one of Directors whom shall at all times equal be an “audit committee financial expert” as defined in Item 407(d)(5)(ii) of Regulation S-K and the instructions thereto. If the number of persons which have been designated from time directors who are members of the Company Board as of the date hereof is reduced below three prior to time in accordance with Section 2(bthe Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) below. If any Shareholder which has the right shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote (at a meeting or by written consent) all Capital Stock the Parent’s compliance with the final sentence of this Section 2.3(b), the Company now owned or hereafter acquired by such party shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited disseminating such amendment to the nomination of specified persons) to cause and maintain the election Stockholders to the Board of Directors of the following:
(iextent required by applicable Law) containing such information with respect to the three (3Company and its officers and directors and Parent’s designees as Section 14(f) persons and Rule 14f-1 require, in order to fulfill its obligations under this Section. Parent shall timely supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. Parent shall use its commercially reasonable efforts to provide such information to enable it to be elected filed with the SEC in the Schedule 14D-9 on the date the Offer Documents are filed with the SEC.
(c) Following the election or appointment of Parent’s designees pursuant to this Section 2.3 and prior to the Effective Time, any amendment of this Agreement, any termination of this Agreement by the holders Company, any extension by the Company of the Series A Stock pursuant to time for the Certificate performance of Incorporation any of the obligations or other acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder or other action adversely affecting the rights of Stockholders (the “Series A Directors”other than Parent or Merger Sub), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of will require the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders approval of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, Company who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) were directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that or their designees appointed under the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes last sentence of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f2.3(a).
Appears in 2 contracts
Samples: Merger Agreement (Healthtronics, Inc.), Merger Agreement (Endocare Inc)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Company Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 2.4(a), Parent shall be entitled to designate up to such number of directors, rounded to the nearest whole number, constituting at least a majority of the directors, on the Company Board as will give Parent representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b2.4) belowand the percentage that the number of Company Shares beneficially owned by Parent and Merger Sub bears to the total number of outstanding Company Shares, and the Company shall use all reasonable efforts to, upon request by Parent, promptly, at the Company’s election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Parent’s designees to be elected or appointed to the Company Board and to cause Parent’s designees to be so elected or appointed. At such times, the Company will use its reasonable best efforts to cause persons designated by Parent to constitute a majority of each (i) committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement, (ii) Board of Directors of each Subsidiary of the Company, and (iii) each committee thereof. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time. If any Shareholder which has the right number of directors who are members of the Company Board as of the date hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote the Parent’s compliance with the final sentence of this Section 2.4(b), the Company shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (at a meeting or by written consent) all Capital Stock and disseminating such amendment to the stockholders of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified personsextent required by applicable Laws) to cause and maintain the election to the Board of Directors of the following:
(i) containing such information with respect to the three Company and its officers and directors and Parent’s designees as Section 14(f) and Rule 14f-1 require, in order to fulfill its obligations under this Section 2.4. Parent shall timely supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(3c) persons Following the election or appointment of Parent’s designees pursuant to this Section 2.4 and prior to the Effective Time, if there shall be elected by the holders any directors of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such Company who were directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent or Merger Sub), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Merger Agreement (Blackbaud Inc), Merger Agreement (Kintera Inc)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Company Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 2.4(a), Parent shall be entitled to designate up to such number of directors, rounded to the nearest whole number, constituting at least a majority of the directors, on the Company Board as will give Parent representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b2.4) belowand the percentage that the number of Company Shares beneficially owned by Parent and Merger Sub bears to the total number of outstanding Company Shares, and the Company shall use all reasonable efforts to, upon request by Parent, promptly, at the Company’s election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Parent’s designees to be elected or appointed to the Company Board and to cause Parent’s designees to be so elected or appointed. At such times, the Company will use its reasonable best efforts to cause persons designated by Parent to constitute a majority of each (i) committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement, (ii) Board of Directors of each Subsidiary of the Company, and (iii) each committee thereof. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time. If any Shareholder which has the right number of directors who are members of the Company Board as of the date hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote the Parent’s compliance with the final sentence of this Section 2.4(b), the Company shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (at a meeting or by written consent) all Capital Stock and disseminating such amendment to the stockholders of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified personsextent required by applicable Laws) to cause and maintain the election to the Board of Directors of the following:
(i) containing such information with respect to the three (3Company and its officers and directors and Parent’s designees as Section 14(f) persons and Rule 14f-1 require, in order to be elected by the holders of the Series A Stock pursuant fulfill its obligations under this Section 2.4. Parent shall timely supply to the Certificate of Incorporation (the “Series A Directors”)Company in writing and be solely responsible for any information with respect to itself and its nominees, such officers, directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2and affiliates required by Section 14(f) of the Series A Directors Exchange Act and Rule 14f-1 promulgated thereunder.
(c) Following the election or appointment of Parent’s designees pursuant to this Section 2.4 and prior to the Effective Time, if there shall be designees any directors of Apax, one of whom shall be Xxxxx Xxxxxx the Company who were directors as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent or Merger Sub), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Merger Agreement (Convio, Inc.), Merger Agreement (Blackbaud Inc)
Board of Directors and Committees. Section 14(f).
(a) Each Subject to the requirements of this Section 1.03 and applicable law, promptly upon the parties hereto agrees date that Company Common Shares are first accepted for payment pursuant to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that Offer (the Company’s Board of Directors shall consist of "Share Acceptance Date"), assuming there are no more than nine (9) members conditions to payment outstanding, and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right thereafter, Sub shall be entitled to designate a member up to such number of the Board of Directors in accordance with Section 2(b) has not designated such member directors, rounded up to the Company’s Board of Directorsnext whole number, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
Company (the "Board") as will give Sub representation on the Board equal to the product of the number of directors on the Board, after giving effect to such representation, and the percentage that the number of Company Common Shares beneficially owned by Parent and its Subsidiaries following such purchase bears to the total number of issued and outstanding Company Common Shares, and the Company shall use its reasonable best efforts to, upon request by Sub, promptly increase the size of the Board (subject to the provisions of the Company's articles of incorporation and code of regulations) and/or secure the resignation of such number of directors as is necessary to enable Sub's designees to be elected to the Board and shall cause Sub's designees to be so elected. At such times the Company will use its reasonable best efforts to cause individuals designated by Sub to constitute the same percentage as is on the Board of (i) each committee of the Board (other than any committee of the Board established to take action under this Agreement or to the extent such appointment would be contrary to applicable law or any exchange on which Company Common Shares are then listed), (ii) each board of directors of each Subsidiary of the Company designated by Sub and (iii) each committee of each such board. Notwithstanding the foregoing, the Company shall use its reasonable best efforts to ensure that the Board and its committees and such boards and committees of the Company's Subsidiaries, shall continue to include members of the Board, as of the date hereof who are not employees of the Company and who are not otherwise affiliated with Sub until the Effective Time (as defined in Section 2.03). All nominees of Parent and Sub shall promptly resign from the Board if the Transaction Consideration for any Company Common Shares accepted for payment pursuant to the Offer is not promptly paid in accordance with the terms of the Offer.
(b) The Company's obligations to appoint designees to the Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.03, including mailing to its shareholders an Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Sub will supply to the Company in writing and be solely responsible for any information so supplied with respect to any of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1 to be included in the Information Statement.
(c) The foregoing notwithstanding, at all times following the purchase by Sub of Company Common Shares pursuant to the Offer and prior to the Effective Time, the Company shall be entitled to have four (4) members of the Board consisting of (i) three (3) persons to be elected who are directors on the date hereof and who are not employed by the holders Company and who are not affiliates, associates or employees of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”)Parent or Sub or, such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividenda vacancy, stock split, combination or other similar recapitalization affecting persons designated by such shares), then two persons (2the "Independent Directors") of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; and (Bii) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) person who is a director on the date hereof and who is the Chief Executive Officer of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital Company on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; . Following the purchase by Sub of Company Common Shares pursuant to the Offer and (D) prior to the Effective Time, neither Parent nor Sub will take any remaining directors entitled action to cause any Independent Director to be elected removed as members of the Board other than for cause. In addition, following the election or appointment of Sub's designees to the Board pursuant to this Section 1.03 and prior to the Effective Time, any amendment of this Agreement or the articles of incorporation or code of regulations of the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Parent or Sub, waiver of any of the Company's rights hereunder or the authorization of any other action to be taken under or in connection with this Agreement if such action materially and adversely effects the holders of Company Common Shares other than Parent or Sub, will require the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number Company then in office who are neither designated by Sub, employees of shares the Company or any of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 its Subsidiaries nor otherwise affiliated with Sub. The Independent Directors shall be designees of Xxxx, one of whom shall be Xxxx as have the authority to retain such counsel and other advisors at the expense of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% Company as reasonably determined appropriate by any of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”). In addition, such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right authority to designate a member of the Board of Directors in accordance with Section 2(b) aboveinstitute any action, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws behalf of the Company, with respect to any matter to be voted upon by the Board enforce performance of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereofthis Agreement.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Merger Agreement (Bon Ton Stores Inc), Merger Agreement (Elder Beerman Stores Corp)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 1.03(a), Parent shall be entitled to designate up to such number of directors, rounded to the nearest whole number, constituting at least a majority of the directors, on the Company Board as will give Parent representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b1.03) belowand the percentage that the number of Shares beneficially owned by Parent and Merger Sub bears to the total number of outstanding Shares, and the Company shall use all reasonable efforts to, upon request by Parent, promptly, at the Company’s election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Parent’s designees to be elected or appointed to the Company Board and to cause Parent’s designees to be so elected or appointed. At such times, the Company will use its best efforts to cause persons designated by Parent to constitute a majority of each committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time (as defined in Section 2.02 hereof). If any Shareholder which has the right number of directors who are members of the Company Board as of the date Table of Contents hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote the Parent’s compliance with the final sentence of this Section 1.03(b), the Company shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (at a meeting or by written consent) all Capital Stock and disseminating such amendment to the stockholders of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified personsextent required by applicable Laws) to cause and maintain the election to the Board of Directors of the following:
(i) containing such information with respect to the three Company and its officers and directors and Parent’s designees as Section 14(f) and Rule 14f-1 require, in order to fulfill its obligations under this Section. Parent shall timely supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(3c) persons Following the election or appointment of Parent’s designees pursuant to this Section 1.03 and prior to the Effective Time, if there shall be elected by the holders any directors of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such Company who were directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent or Merger Sub), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Merger Agreement (Allergan Inc), Merger Agreement (Allergan Inc)
Board of Directors and Committees. Section 14(f). ------------------------------------------------
(a) Each Promptly upon the purchase by Holdco of Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 1.3(a), Holdco shall be entitled to designate up to such number of directors, rounded to the nearest whole number constituting at least a majority of the directors, on the Company Board as will give Holdco representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b1.3) belowand the percentage that such number of Shares so purchased bears to the total number of outstanding Shares, and the Company shall use all reasonable efforts to, upon request by Holdco, promptly, at the Company's election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Holdco's designees to be elected to the Company Board and to cause Holdco's designees to be so elected. At such times, the Company will use its best efforts to cause persons designated by Holdco to constitute a majority of each committee of the Company Board, other than any committee of the Company Board established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time (as defined in Section 2.2 hereof). If any Shareholder which has the right number of directors who are members of the Company Board as of the date hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company's obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees to vote (at a meeting or by written consent) all Capital Stock of the Rule 14f-1 promulgated thereunder. The Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to shall promptly take all actions (including, but not limited action required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 and shall include in the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
(i) Schedule 14D-9 such information with respect to the three Company and its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 1.3. Acquisition I will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section and Rule.
(3c) persons Following the election or appointment of Holdco's designees pursuant to this Section 1.3 and prior to the Effective Time, if there shall be elected by the holders any directors of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such Company who were directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent, Holdco or Acquisition I or waiver of any of the Company's rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent, Holdco or Acquisition I), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NNG Inc), Agreement and Plan of Merger (Northrop Grumman Corp)
Board of Directors and Committees. Section 14(f).
(a) Each Subject to the requirements of applicable law, promptly upon the purchase by Purchaser of Shares pursuant to and subject to the conditions of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right thereafter, Purchaser shall be entitled to designate a member up to such number of the Board of Directors in accordance with Section 2(b) has not designated such member directors, rounded up to the Company’s Board of Directorsnext whole number, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
Company (the "Board") as will give Purchaser representation on the Board equal to the product of the number of directors on the Board, after giving effect to such representation, and the percentage that such number of Shares so purchased (or subsequently acquired by Purchaser or any of its affiliates in accordance with the last sentence of Section 6.08) bears to the total number of issued and outstanding Shares, and promptly upon request by Purchaser, the Company shall either increase the size of the Board or secure the resignation of such number of directors as is necessary to enable Purchaser's designees to be elected to the Board and shall cause Purchaser's designees to be so elected. At such times the Company will use its reasonable efforts to cause individuals designated by Purchaser to constitute the same percentage as is on the Board of (i) each committee of the Board (other than any committee of the Board established to take action under
(b) The Company's obligations to appoint designees to the Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions requested by Parent, necessary to effect any such election, including all actions required under Section 14(f) and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 1.03. Parent or Purchaser will supply to the Company in writing and be solely responsible for any information with respect to the three (3any of them and their nominees, officers, directors and affiliates required by Section 14(f) persons and Rule 14f-1 promulgated thereunder to be elected by included in the holders Information Statement.
(c) Following the election or appointment of Purchaser's designees pursuant to this Section 1.03 and prior to the Effective Time, any amendment of this Agreement or any provisions of the Series A Stock pursuant to the Restated Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% or By-Laws of the aggregate number Company which directly or indirectly affects the consummation of shares the Merger or the terms or the timing thereof, any extension by the Company of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in time for the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization affecting such shares), then two (2) acts of Parent or Purchaser or waiver of any of the Series A Directors shall be designees of ApaxCompany's rights hereunder, one of whom shall be Xxxxx Xxxxxx as of will require the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to then in office who are not designated by Purchaser or learned by otherwise affiliated with Purchaser (the Observer in connection this paragraph (f"Independent Directors").
Appears in 2 contracts
Samples: Merger Agreement (Bayer Corp), Merger Agreement (Bayer Corp)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 1.03(a), Parent shall be entitled to designate up to such number of directors, rounded to the nearest whole number, constituting at least a majority of the directors, on the Company Board as will give Parent representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b1.03) belowand the percentage that the number of Shares beneficially owned by Parent and Merger Sub bears to the total number of outstanding Shares, and the Company shall use all reasonable efforts to, upon request by Parent, promptly, at the Company's election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Parent's designees to be elected or appointed to the Company Board and to cause Parent's designees to be so elected or appointed. At such times, the Company will use its best efforts to cause persons designated by Parent to constitute a majority of each committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time (as defined in Section 2.02 hereof). If any Shareholder which has the right number of directors who are members of the Company Board as of the date hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company's obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote the Parent's compliance with the final sentence of this Section 1.03(b), the Company shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (at a meeting or by written consent) all Capital Stock and disseminating such amendment to the stockholders of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified personsextent required by applicable Laws) to cause and maintain the election to the Board of Directors of the following:
(i) containing such information with respect to the three Company and its officers and directors and Parent's designees as Section 14(f) and Rule 14f-1 require, in order to fulfill its obligations under this Section. Parent shall timely supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(3c) persons Following the election or appointment of Parent's designees pursuant to this Section 1.03 and prior to the Effective Time, if there shall be elected by the holders any directors of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such Company who were directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent or Merger Sub or waiver of any of the Company's rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent or Merger Sub), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the acceptance for payment by Merger Sub (the time of such acceptance, the “Acceptance Time”), Parent or any of their Affiliates of Shares pursuant to and in accordance with the terms of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with thereafter, and subject to the last four sentences of this Section 2(b) below. If any Shareholder which has the right 1.3(a), Merger Sub shall be entitled to designate up to such number of directors, rounded up to the nearest whole number constituting at least a member majority of the directors, on the Company Board of Directors in accordance with Section 2(b) has not designated such member as will give Merger Sub representation on the Company Board equal to the Company’s Board product of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members directors on the Company’s Company Board of Directors shall be reduced by (giving effect to any increase in the number of members which have directors pursuant to this Section 1.3) and the percentage that such number of Shares so purchased plus the number of Support Agreement Shares bears to the total number of outstanding Shares (not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at on a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directorsfully diluted basis), and the Company agrees to shall, upon request by Merger Sub, promptly take all actions (necessary, including, but not limited at the election of the Company, increasing the size of the Company Board or securing the resignation of such number of directors, to enable Merger Sub’s designees to be appointed to the nomination of specified persons) Company Board and to cause and maintain Merger Sub’s designees to be so appointed (the election date on which the majority of the Company’s directors are designees of Merger Sub that have been effectively appointed to the Company Board of Directors of in accordance herewith, the following:
(i) with respect “Board Appointment Date” ). The Company shall use its reasonable best efforts to cause the three (3) persons Board Appointment Date to be elected by the holders of same day as the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”)Acceptance Time. At such times, such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in applicable Law and stock exchange listing standards, the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be Company will cause persons designated by the holders of Merger Sub to constitute a majority of each committee of the Series A Stock;
(ii) with respect Company Board, other than any committee of the Company Board established to take action under this Agreement. Notwithstanding the two (2) directors foregoing, the Company shall use all reasonable efforts to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to ensure that at least 50% three of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as members of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be Company Board as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation who qualify as independent directors for purposes of this clause the continued listing requirements of NASDAQ and SEC rules and regulations (iv)such directors, the “Independent Incumbent Directors” ) shall remain members of the Company Board until the Effective Time (as defined in Section 2.3 hereof). Subject If the number of Independent Incumbent Directors is reduced below three prior to the fiduciary obligations of each member of Effective Time, the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of remaining Independent Incumbent Directors designated and/or elected in accordance with the aforesaid procedure unless the persons (or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of if there is only one such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(bremaining director) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive designate a person (or persons) to fill such vacancy (or vacancies), and each Independent Incumbent Director shall also designate a successor to ensure that there will always be at least one Independent Incumbent Director at all reportstimes prior to the Effective Time (provided each such person meets the independence requirements of the rules and regulations of the SEC and NASDAQ and, presentations and materials as if Mr. Berkeley was a member of once any such committee of the Board of Directors. The foregoing person fills a vacancy, such director (or directors) shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter deemed to be voted upon by an Independent Incumbent Director (or Independent Incumbent Directors) for purposes hereof). If no Independent Incumbent Directors remain prior to the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approvedEffective Time, a majority of the members of the Board shall be entitled to fill such vacancies (provided each such person meets the independence requirements of the rules and regulations of the SEC and NASDAQ and such director (or directors) shall be deemed to be an Independent Incumbent Director (or Independent Incumbent Directors) for purposes hereof). The provisions of this Section 1.3 are in addition to and shall not limit any rights that Parent, including at least two Merger Sub or any of their respective Affiliates may have as a record holder or beneficial owner of Shares as a matter of applicable Law with respect to the election of directors or otherwise.
(2b) The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the Independent DirectorsExchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all action required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 1.3. Merger Sub will supply to the Company in writing promptly for inclusion into the Schedule 14D-9 and be solely responsible for any information with respect to itself and its nominees, must vote in favor thereofofficers, directors and Affiliates required by such Section and Rule.
(fc) At Following the election or appointment of Merger Sub’s designees pursuant to this Section 1.3 and prior to the Effective Time, if there shall be any time in which Xxxxxxx X. Berkeley is not a member Independent Incumbent Directors, any termination of this Agreement by the Company, any extension by the Company of the Board time for the performance of Directorsany of the obligations or other acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder, or any amendment of this Agreement, or other action adversely affecting the holders rights of shareholders of the Company (other than Parent or Merger Sub) to receive the Offer Price (except as permitted by the terms of this Agreement), will require the concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Independent Incumbent Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Board of Directors and Committees. Section 14(f).
(a) Each of Promptly upon acceptance for payment of, and payment for, Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has thereafter, the right Purchaser shall be entitled to designate a member up to such number of directors, rounded up to the next whole number, on the Board as will give the Purchaser representation on the Board equal to the product of the number of directors on the Board (giving effect to any increase in the number of directors pursuant to this Section 1.03) and the percentage that such number of Shares beneficially owned by the Purchaser and its affiliates bears to the total number of outstanding Shares, and the Company shall, at such time, cause the Purchaser's designees to be elected or appointed, upon request by the Purchaser. In connection with the foregoing, the Company shall promptly, as reasonably agreed by the Parent and the Company, either increase the size of the Board and/or secure the resignation of Directors in accordance with Section 2(b) has not designated such member number of its current directors as is necessary to enable the Purchaser's designees to be elected or appointed to the Company’s Board and to cause the Purchaser's designees to be so elected or appointed. At such times and, subject to the last sentence of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall votethis Section 1.03(a), to the extent possiblerequested by the Parent, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) will use its best efforts to cause and maintain the election to the Board of Directors of the following:
(i) with respect to the three (3) persons to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of Purchaser to constitute the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations same percentage of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or (other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on than any committee of the Board of Directors established to which Mr. Berkeley is appointed.
(etake action under this Agreement) as the Purchaser's designees constitute on the Board. Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of foregoing, the Company, with respect the Parent and the Purchaser shall each use its best efforts to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority ensure that three of the members of the Board as of the date hereof who are not officers, employees or affiliates of the Company (the "Independent Directors") shall remain members of the Board until the Effective Time (as defined in Section 2.02 hereof) and if the number of the Independent Directors shall be reduced below three for any reason, including at least two any remaining Independent Director(s) shall be entitled to designate independent persons to fill such vacancies and such persons shall be deemed to be Independent Directors; or, if no Independent Directors then remain, the other directors shall designate three independent persons to fill such vacancies, and such persons shall be deemed to be Independent Directors.
(2b) The Company's obligation to appoint designees to the Board shall be subject to Section 14(f) of the Independent DirectorsExchange Act, must vote and Rule 14f-1 promulgated thereunder. The Company shall promptly 15 - 11 - take all action required pursuant to such Section and Rule in favor thereoforder to fulfill its obligations under this Section 1.03, including mailing to its shareholders with the Schedule 14D-9 such information as is required under such Section and Rule in order to fulfill its obligations under this Section 1.03. The Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section and Rule.
(fc) At any time in which Xxxxxxx X. Berkeley is not a member Following the election or appointment of the Purchaser's designees pursuant to this Section 1.03, any amendment of this Agreement, any termination of this Agreement by the Company, any recommendation made by the Board pursuant to Section 2.07(a)(ii) of Directorsthis Agreement, any actions taken by the holders Board pursuant to Section 6.13 of this Agreement, any extension by the Company of the time for the performance of any of the obligations or other acts of the Purchaser or the Parent hereunder or waiver of any of the Company's rights or waiver by the Company of any condition hereunder, will require the concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f)directors.
Appears in 1 contract
Samples: Merger Agreement (Diebold Inc)
Board of Directors and Committees. SECTION 14(F).
(a) Each Promptly upon the purchase by Sub of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has not designated such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
(i) with respect to the three (3) persons to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of IncorporationOffer and from time to time thereafter, such director Parent shall be designated by Xxxxentitled to designate up to such number of directors, who shall be Xxxxxxx X. Berkeley as rounded up to the next whole number on the board of directors of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation Company (the “Independent DirectorsCompany Board”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) that equals the product of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal total number of the three (3) Independent Directors then serving directors on the Company Board (giving effect to the election of Directors any additional directors pursuant to this Section 1.11) and (ii) the prompt election percentage that the number of shares of Company Common Stock owned by Parent, Sub and their affiliates (including shares of Company Common Stock purchased pursuant to the Board Offer) bears to the total number of Directors Outstanding Shares, and the Company shall upon request by Parent, subject to the provisions of three individuals designated by Apax (“Default Directors”) to replace Section 1.11(b), promptly either increase the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member size of the Company Board (and shall, if necessary, amend the Company’s bylaws to permit such an increase) or use its best efforts to secure the resignation of Directors in accordance with Section 2(b) above, such number of directors as is necessary to take all actions, or cause there respective enable Parent’s designees to take all actions (including, but not limited be elected to the nomination of specified persons) Company Board and shall cause Parent’s designees to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apaxso elected; provided, however, that any special committee formed for at all times prior to the purpose Effective Time, the Company Board shall include at least two members who are not designees of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.11(b), use its best efforts to cause persons designated by Xxxx pursuant Parent to Section 2(b)(iiconstitute the same percentage as the number of Parent’s designees to the Company Board bears to the total number of directors on the Company Board on (i) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such each committee of the Board Company Board, (ii) each board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any directors or similar governing body or bodies of each subsidiary of the Company designated by Parent, and (iii) each committee of the Board of Directors to which Mr. Berkeley is appointedeach such board or body.
(eb) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the The Company, with respect ’s obligations to any matter appoint Parent’s designees to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer Board shall be subject to Section 14(f) of the Company’s approval, which approval Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall not be unreasonably withheld. Camden will, promptly take all actions required pursuant to Section 14(f) and will cause Rule 14f-1 in order to fulfill its obligations under this Section 1.11 and shall include in the Observer to, hold in confidence and trust, and not use Schedule 14D-9 or disclose (except a separate Rule 14f-1 Statement provided to Camden shareholders such information with respect to the Company and its financial, legal officers and directors as is required under Section 14(f) and Rule 14f-1. Parent or other advisors, provided such advisors agree Sub will supply to hold such confidential information in confidence), any confidential information of the Company provided in writing and be solely responsible for any information with respect to or learned either of them and their nominees, officers, directors and affiliates required by the Observer in connection this paragraph (f)Section 14(f) and Rule 14f-1.
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
Board of Directors and Committees. Section 14(f). ------------------------------------------------
(a) Each Subject to the requirements of applicable law, promptly upon the purchase of not less than a majority of the parties hereto agrees outstanding shares by Purchaser of Shares pursuant to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with thereafter, subject to paragraph (c) of this Section 2(b) below. If any Shareholder which has the right 1.03, Purchaser shall be entitled to designate a member up to such number of the Board of Directors in accordance with Section 2(b) has not designated such member directors, rounded up to the Company’s Board of Directorsnext whole number plus one, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
Company (the "Board") as will give Purchaser representation on the Board equal to the product of the total number of directors on the Board, after giving effect to such representation, and the percentage that such number of Shares so purchased bears to the total number of issued and outstanding Shares, and the Company shall use its reasonable efforts to, upon request by Purchaser, promptly, at the Company's election, either increase the size of the Board or secure the resignation of such number of directors as is necessary to enable Purchaser's designees to be elected to the Board and shall cause Purchaser's designees to be so elected, but in no event less than a majority of directors. At such times the Company will use its reasonable efforts to cause individuals designated by Purchaser to constitute the same percentage as is on the Board of (i) each committee of the Board (other than any committee of the Independent Directors), (ii) each board of directors of each subsidiary of the Company designated by Purchaser and (iii) each committee of each such board.
(b) The Company's obligations to appoint designees to the Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.03 and shall include in the Schedule 14D-9 such information with respect to the three Company and its officers and directors as is required under Section 14(f) and Rule 14f-1. Parent or Purchaser will supply to the Company in writing and be solely responsible for any information with respect to any of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(3c) persons to be elected After the time that Purchaser's designees constitute at least a majority of the Board and until the Effective Time, the Board shall always have at least two members (the "Independent Directors") who are neither officers of Parent nor designees, shareholders or affiliates of Parent or Parent's affiliates. During such period, any (i) amendment or termination of this Agreement, (ii) extension of time for the performance or waiver of the obligations or other acts of Parent or Purchaser or waiver of the Company's rights hereunder or (iii) action by the holders Company with respect to this Agreement and the transactions contemplated hereby which adversely affects the interests of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% stockholders of the aggregate number of shares of Series A Stock issued to Apax on Company, shall require the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders approval of a majority of the Series A Stock;
(ii) with respect Independent Directors in addition to the two (2) directors to be elected any required approval thereof by the holders of Series A1 Preferred Stock pursuant to full Board. If the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Independent Directors shall be designees of Xxxxreduced below two for any reason whatsoever, one of whom any remaining Independent Director shall be Xxxx as entitled to designate a person to fill the vacancy, which designee shall not be a current or former officer or affiliate of Parent or any of Parent's affiliates, or, if no Independent Directors then remain, the date hereof; and (B) ifother directors shall designate two persons to fill such vacancies who shall not be current or former officers or affiliates of Parent or any of Parent's affiliates, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors persons shall be a designee of Xxxx;
(iii) with respect to the one (1) director deemed to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation Directors for purposes of this clause (iv))Agreement. Subject The Board shall not delegate any matter set forth in this Section 1.03(c) to the fiduciary obligations of each member any committee of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removedBoard.
(d) Each Following the election or appointment of ApaxPurchaser's designees pursuant to this Section 1.03 and prior to the Effective Time, Advance Capital any amendment of this Agreement or the Amended and Xxxx hereby agreesRestated Certificate of Incorporation, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actionsamended, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx Amended and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a nonRestated By-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws Laws of the Company, with respect to any matter to be voted upon extension by the Board of Directors, if a majority Company of the Series A Directors do not vote in favor time for the performance of such matter, then in order for such matter to be approved, a majority any of the members obligations or other acts of Parent or Purchaser or waiver of any of the Board of DirectorsCompany's rights hereunder, including at least two (2) of will require the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information directors of the Company provided to then in office who are neither designated by Purchaser, employees of the Company or learned by the Observer in connection this paragraph (f)any of its subsidiaries nor otherwise affiliated with Purchaser.
Appears in 1 contract
Board of Directors and Committees. Section 14(f).
(a) Each of Promptly upon acceptance for payment of, and payment for, Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has thereafter, the right Purchaser shall be entitled to designate a member up to such number of directors, rounded up to the next whole number, on the Board as will give the Purchaser representation on the Board equal to the product of the number of directors on the Board (giving effect to any increase in the number of directors pursuant to this Section 1.03) and the percentage that such number of Shares beneficially owned by the Purchaser and its affiliates bears to the total number of outstanding Shares, and the Company shall, at such time, cause the Purchaser's designees to be elected or appointed, upon request by the Purchaser. In connection with the foregoing, the Company shall promptly, as reasonably agreed by the 15 -10- Parent and the Company, either increase the size of the Board and/or secure the resignation of Directors in accordance with Section 2(b) has not designated such member number of its current directors as is necessary to enable the Purchaser's designees to be elected or appointed to the Company’s Board and to cause the Purchaser's designees to be so elected or appointed. At such times and, subject to the last sentence of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall votethis Section 1.03(a), to the extent possiblerequested by the Parent, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) will use its best efforts to cause and maintain the election to the Board of Directors of the following:
(i) with respect to the three (3) persons to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of Purchaser to constitute the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations same percentage of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or (other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on than any committee of the Board of Directors established to which Mr. Berkeley is appointed.
(etake action under this Agreement) as the Purchaser's designees constitute on the Board. Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of foregoing, the Company, with respect the Parent and the Purchaser shall each use its best efforts to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority ensure that three of the members of the Board as of the date hereof who are not officers, employees or affiliates of the Company (the "Independent Directors") shall remain members of the Board until the Effective Time (as defined in Section 2.02 hereof) and if the number of the Independent Directors shall be reduced below three for any reason, including at least two any remaining Independent Director(s) shall be entitled to designate independent persons to fill such vacancies and such persons shall be deemed to be Independent Directors; or, if no Independent Directors then remain, the other directors shall designate three independent persons to fill such vacancies, and such persons shall be deemed to be Independent Directors.
(2b) The Company's obligation to appoint designees to the Board shall be subject to Section 14(f) of the Independent DirectorsExchange Act, must vote and Rule 14f-1 promulgated thereunder. The Company shall promptly 16 - 11 - take all action required pursuant to such Section and Rule in favor thereoforder to fulfill its obligations under this Section 1.03, including mailing to its shareholders with the Schedule 14D-9 such information as is required under such Section and Rule in order to fulfill its obligations under this Section 1.03. The Purchaser will supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by such Section and Rule.
(fc) At any time in which Xxxxxxx X. Berkeley is not a member Following the election or appointment of the Purchaser's designees pursuant to this Section 1.03, any amendment of this Agreement, any termination of this Agreement by the Company, any recommendation made by the Board pursuant to Section 2.07(a)(ii) of Directorsthis Agreement, any actions taken by the holders Board pursuant to Section 6.13 of this Agreement, any extension by the Company of the time for the performance of any of the obligations or other acts of the Purchaser or the Parent hereunder or waiver of any of the Company's rights or waiver by the Company of any condition hereunder, will require the concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f)directors.
Appears in 1 contract
Board of Directors and Committees. SECTION 14(F).
(a) Each Promptly upon the purchase by Sub of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has not designated such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
(i) with respect to the three (3) persons to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of IncorporationOffer and from time to time thereafter, such director Parent shall be designated by Xxxxentitled to designate up to such number of directors, who shall be Xxxxxxx X. Berkeley as rounded up to the next whole number on the board of directors of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation Company (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2"COMPANY BOARD") that equals the product of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal total number of the three (3) Independent Directors then serving directors on the Company Board (giving effect to the election of Directors any additional directors pursuant to this Section 1.11) and (ii) the prompt election percentage that the number of shares of Company Common Stock owned by Parent, Sub and their affiliates (including shares of Company Common Stock purchased pursuant to the Board Offer) bears to the total number of Directors Outstanding Shares, and the Company shall upon request by Parent, subject to the provisions of three individuals designated by Apax (“Default Directors”) to replace Section 1.11(b), promptly either increase the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member size of the Company Board (and shall, if necessary, amend the Company's bylaws to permit such an increase) or use its best efforts to secure the resignation of Directors in accordance with Section 2(b) above, such number of directors as is necessary to take all actions, or cause there respective enable Parent's designees to take all actions (including, but not limited be elected to the nomination of specified persons) Company Board and shall cause Parent's designees to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apaxso elected; provided, however, that any special committee formed for at all times prior to the purpose Effective Time, the Company Board shall include at least two members who are not designees of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director Parent. Promptly upon request by Parent, the Company will, subject to the provisions of Section 1.11(b), use its best efforts to cause persons designated by Xxxx pursuant Parent to Section 2(b)(iiconstitute the same percentage as the number of Parent's designees to the Company Board bears to the total number of directors on the Company Board on (i) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such each committee of the Board Company Board, (ii) each board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any directors or similar governing body or bodies of each subsidiary of the Company designated by Parent, and (iii) each committee of the Board of Directors to which Mr. Berkeley is appointedeach such board or body.
(eb) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the The Company, with respect 's obligations to any matter appoint Parent's designees to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer Board shall be subject to Section 14(f) of the Company’s approval, which approval Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall not be unreasonably withheld. Camden will, promptly take all actions required pursuant to Section 14(f) and will cause Rule 14f-1 in order to fulfill its obligations under this Section 1.11 and shall include in the Observer to, hold in confidence and trust, and not use Schedule 14D-9 or disclose (except a separate Rule 14f-1 Statement provided to Camden shareholders such information with respect to the Company and its financial, legal officers and directors as is required under Section 14(f) and Rule 14f-1. Parent or other advisors, provided such advisors agree Sub will supply to hold such confidential information in confidence), any confidential information of the Company provided in writing and be solely responsible for any information with respect to or learned either of them and their nominees, officers, directors and affiliates required by the Observer in connection this paragraph (f)Section 14(f) and Rule 14f-1.
Appears in 1 contract
Samples: Acquisition Agreement (Alloy Inc)
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the acceptance for payment by Acquisition, Parent or any of their affiliates of Shares pursuant to and in accordance with the terms of the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 1.3(a), Acquisition shall be entitled to designate up to such number of directors, rounded up to the nearest whole number constituting at least a majority of the directors, on the Company Board as will give Acquisition representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in the number of directors pursuant to this Section 1.3) and the percentage that such number of Shares so purchased bears to the total number of outstanding Shares, and the Company shall, upon request by Acquisition, promptly, at the Company’s election, take all actions necessary, including increasing the size of the Company Board or securing the resignation of such number of directors, to enable Acquisition’s designees to be appointed to the Company Board and to cause Acquisition’s designees to be so appointed (the date on which the majority of the Company’s directors are designees of Acquisition that have been effectively appointed to the Company Board in accordance with Section 2(bherewith, the “Board Appointment Date”). At such times, the Company will cause persons designated by Acquisition to constitute a majority of each committee of the Company Board, other than any committee of the Company Board established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that at least three of the members of the Company Board as of the date hereof who qualify as independent directors for purposes of the continued listing requirements of the New York Stock Exchange LLC. (the “NYSE”) belowand SEC rules and regulations (such directors, the “Independent Incumbent Directors”) and who are reasonably satisfactory to Acquisition shall remain members of the Company Board until the Effective Time. If any Shareholder which has the right number of Independent Incumbent Directors is reduced below three prior to the Effective Time, the remaining Independent Incumbent Directors (or if there is only one such director, that remaining director) shall be entitled to designate a member person (or persons) to fill such vacancy (or vacancies) (provided each such person meets the independence requirements of the Board of Directors in accordance with Section 2(b) has not designated such member to the Company’s Board of Directors, each rules and regulations of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, SEC and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect NYSE and such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(bdirector (or directors) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designateddeemed to be an Independent Incumbent Director (or Independent Incumbent Directors) for purposes hereof.
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees to vote (at a meeting or by written consent) all Capital Stock of the Rule 14f-1 promulgated thereunder. The Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to shall promptly take all actions (including, but not limited action required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 and shall include in the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
(i) Schedule 14D-9 such information with respect to the three (3) persons Company and its officers and directors as is required under such Section and Rule in order to be elected by the holders of the Series A Stock pursuant fulfill its obligations under this Section 1.3. Acquisition will supply to the Certificate of Incorporation (the “Series A Directors”), such directors shall Company in writing and be designated as follows: (A) solely responsible for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock;
(ii) information with respect to the two (2) itself and its nominees, officers, directors to be elected and affiliates required by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; Section and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided aboveRule.
(c) Notwithstanding Following the foregoing election or appointment of Acquisition’s designees pursuant to this Section 1.3 and in accordance with prior to the Certificate Effective Time, if there shall be any Independent Incumbent Directors, any termination of Incorporationthis Agreement by the Company, upon any extension by the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal Company of the three (3) Independent Directors then serving on time for the Board performance of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member any of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions obligations or other matters involving Xxxx shall not include Xxxx acts of Parent or any director designated by Xxxx pursuant to Section 2(b)(ii) Acquisition or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member waiver of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company’s rights hereunder, with respect to or any matter to be voted upon by amendment of this Agreement, or other action adversely affecting the Board rights of Directors, if a majority shareholders of the Series A Directors do not vote in favor of such matterCompany to receive the Merger Consideration (other than Parent or Acquisition), then in order for such matter to be approved, a majority of will require the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Independent Incumbent Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Smith International Inc)
Board of Directors and Committees. (a) Each of the parties hereto agrees to vote all Capital Stock of the The Company now owned or hereafter acquired shall be managed by such party so that the Company’s a Board of Directors shall consist composed of no more than nine (9) members and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) belowseven Directors. If any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has not designated such member Notwithstanding anything to the Company’s Board of Directorscontrary contained in the By-laws, each of subject to paragraph (b) below the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to timeParties agree, and the parties Principal Shareholder shall voteprocure, to the extent possible, all Capital Stock that two of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of said Directors shall be reduced appointed upon designation by Terna (each, a “Terna Director”) and, so long as the Principal Shareholder holds at least 51 % of the share capital and voting rights of the Company, at least four Directors shall be appointed upon designation by the number Principal Shareholder (each, a “Principal Shareholder Director”). Each Director shall serve for a term of members which have not yet been designatedone year, or such other period, until the following annual shareholders’ meeting, as provided under Montenegrin law, unless the Director is removed or resigns prior to the expiry of that period. Directors may be reappointed.
(b) Each Notwithstanding anything to the contrary in this Agreement, and without prejudice to (i) the rights Terna may have under applicable law and the By-Laws to appoint certain Directors based on the percentage of share capital and voting rights it holds, or (ii) the provisions of Section 2.6, the right of Terna to designate two Directors in accordance with paragraph (a) above and the right of Terna to designate representatives on committees in accordance with paragraph (f) below shall terminate on the earlier of: (I) the fifth anniversary of the parties further covenants New System Effective Date; (II) the date when Terna (together with its Affiliates) ceases to hold at least 15% of the share capital and agrees voting rights of the Company, provided, however, that during the period up to vote (the New System Effective Date this provision shall apply only if Terna ceases to hold at a meeting or by written consent) all Capital Stock least 15% of the share capital and voting rights of the Company now owned only as a consequence of one or hereafter acquired more transfers or assignments of Shares made by such party Terna (thus excluding any reduction or dilution of Terna’s shareholding in the share capital and attendvoting rights of the Company as a consequence of any capital increase, in person merger, de-merger or by proxy, all meetings of shareholders called for the purpose of electing directorsother corporate reorganizations or restructuring), and provided further, that transfers or assignments by Terna to Permitted Transferees pursuant to Section 4.3 shall not be deemed and considered transfers or assignments for the purposes of this point (II), (III) 30 months after the effective termination by the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
(i) with respect to the three (3) persons to be elected by the holders of the Series A Stock Project Coordination Agreement pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors shall be designated as follows: (ASections 5.2(a)(i)-(v) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2Section 5.3(a)(iii) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) ifProject Coordination Agreement, and for so long as(IV) December 31, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment 2021, in the event event, and only in the event, that the actual commissioning of any stock dividendall the Associated Network Infrastructures (as commissioning is specified in the Project Coordination Agreement) has occurred on or before Xxxxxxxx 00, stock split, combination or other similar recapitalization affecting such shares0000 (xxxx xx (XX), then at least one (1XXX) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (DIV) any remaining directors entitled hereinafter referred to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent DirectorsSpecial Rights Expiry Date”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding On or immediately before the foregoing Special Rights Expiry Date or the fifth anniversary of the New System Effective Date, Terna shall procure that all members of the Board designated by it in excess of the number of directors which Terna would have been entitled under applicable law and the By-Laws to appoint at the last Shareholders’ meeting on which members of the Board were appointed solely based on the percentage of its share capital and voting rights and the percentage of share capital and voting right which were in accordance with attendance and represented at such Shareholders’ meeting that resolved on the Certificate appointment of Incorporationthe members of the Board, and not based on this Agreement, immediately resign from office and shall procure that its representatives on the committees and, upon request by the occurrence Principal Shareholder, use its best efforts to procure that the Managers, resign from their position and the Parties, to the extent of an Event their respective powers, undertake to exercise all voting rights and legal powers of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder control then available to them as necessary to cause (i) the removal shareholders of the three Company (3if and to the extent such powers still belong to them) Independent to procure that an extraordinary shareholders meeting is called and held to approve the new by-laws of the Company which shall not contain and reflect the provisions of this Section 2.1 and Section 2.3(d) of this Agreement. For the avoidance of doubt, the Parties agree that starting from the first subsequent shareholders’ meeting after the Special Rights Expiry Date or the fifth anniversary of the New System Effective Date, Montenegro will not have any obligation hereunder to procure the appointment of any Terna Directors, without prejudice to the rights Terna may have under applicable law and the By-Laws to appoint certain Directors then serving based on the Board percentage of Directors share capital and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removedvoting rights it holds.
(d) Each The Directors shall be entitled to receive the lump sum fee that the General Meeting may establish in relation to their office from time to time. Such lump-sum fee shall be inclusive of Apax, Advance Capital all travel and Xxxx hereby agrees, other out-of-pocket expenses incurred by any Director in order to attend Board meetings or carry out specific tasks and Directors shall not be entitled to compensation for such expenses.
(e) The Shareholders acknowledge that for so under Montenegrin law the Minority Shareholders may have the right to appoint one Director to the Board as long as they have certain percentage of the share capital and voting rights of the Company. The Shareholders shall not use any of their voting rights to appoint or facilitate the appointment of any Director designated by the Minority Shareholders, without the prior written consent of the other Shareholder.
(f) The Parties agree that should any committee of the Company be formed by the Board or the Shareholders’ meeting, Terna shall have the right to appoint at least one person as effective member of any such committee, provided that Terna shall use its reasonable effort to select a person who satisfies professional and other requirements for such membership as may be necessary or useful depending on the roles and tasks of the relevant committee. Each Shareholder shall, and shall procure that each Director designated by it, vote at the relevant meeting of the Board in favor of the appointment of the person designated by Terna as member of the relevant committee.
(g) In the event of a vacancy on the Board, regardless of how caused, the Shareholder that designated the Director whose position is vacant shall have the right to designate the Director to replace the terminated Director, in accordance with the provisions of this Agreement.
(h) Any Director may be removed at any time, with or without cause, only upon the request of the Shareholder that has designated such Director. The Shareholder requiring the removal of the Director shall notify the other Shareholder in writing. Upon receipt of such notice, the Shareholders shall procure the call for a member meeting of the Board and/or of Directors in accordance with Section 2(b) abovethe shareholders, for the purpose of removing of the Director and appointment the new Board of Directors, as applicable under Montenegrin law, to take be held as soon as practicable, to effect such removal, and the Shareholders shall exercise their rights as shareholders and use their reasonable best efforts to procure such removal, it being understood that the Shareholder requiring the removal of the Director shall be responsible for and agrees to indemnify and hold harmless the other Shareholder and the Company against all actionslosses, damages, liabilities, costs and expenses (including legal and attorneys’ fees and other expenses) which the other Shareholder or the Company may incur arising out of, or cause there respective designees to take all actions (includingin connection with, but not limited to the nomination any claim by such removed Director for wrongful or unfair dismissal or redundancy or other compensation arising out of specified persons) to cause:such Director’s removal or loss of office.
(i) If the appointment or removal of a Director (including under paragraphs (f), (g) and (h) above) requires the passing of a resolution or any other actions or corporate steps or formalities, the Principal Shareholder and Terna shall vote (and/or procure their respective designees to the Board of Directors to appoint vote) in the following individuals to relevant Board and/or shareholders’ meeting for the Compensation Committee appointment or removal, as the case may be, of the Director as proposed by the Shareholder proposing or requiring such appointment or removal, and shall fully comply with and carry out as soon as practicable any and all actions and corporate steps or formalities (including the call of a Board of Directors: Xxxx and one such Series A Director and/or shareholders’ meeting), as may be designated by Apax;
(ii) required to effect the Board appointment or removal of Directors to appoint such Director or the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation appointment of a special committee of the new Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon proposed by the Board Shareholder requesting such appointment or removal, all in accordance with the terms and conditions of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereofthis Agreement and applicable law.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
Board of Directors and Committees. Section 14(f).
(a) Each Subject to the requirements of applicable law, promptly upon the parties hereto agrees purchase by Purchaser of Shares pursuant to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with Section 2(b) below. If any Shareholder which has the right thereafter, Purchaser shall be entitled to designate a member up to such number of the Board of Directors in accordance with Section 2(b) has not designated such member directors, rounded up to the Company’s Board of Directorsnext whole number, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
Company (ithe "Board") with respect as will give Purchaser representation on the Board equal to the three (3) persons product of the number of directors on the Board, after giving effect to such representation, and the percentage that such number of Shares so purchased bears to the total number of issued and outstanding Shares, and the Company shall use its reasonable best efforts to, upon request by Purchaser, promptly, at the Company's election, either increase the size of the Board or secure the resignation of such number of directors as is necessary to enable Purchaser's designees to be elected by the holders of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such directors Board and shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be cause Purchaser's designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by so elected. At such times the holders of the Series A Stock shall be Company will use its reasonable best efforts to cause individuals designated by Purchaser to constitute the holders of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated same percentage as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy is on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided above.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special each committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or (other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on than any committee of the Board established to take action under this Agreement), (ii) each board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate directors of Incorporation (except for Section IV.7 therein) or bylaws each subsidiary of the CompanyCompany designated by Purchaser and (iii) each committee of each such board. Notwithstanding the foregoing, with respect the Company shall use its reasonable best efforts to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority ensure that all of the members of the Board and its committees and such boards and committees of Directorsthe Company's subsidiaries, including at least two as of the date hereof who are not employees of the Company and who are not otherwise affiliated with Purchaser shall remain members of the Board and such boards and committees until the Effective Time (2as defined in Section 2.02).
(b) The Company's obligations to appoint designees to the Board shall be subject to Section 14(f) of the Independent DirectorsExchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.03, must vote including mailing to its stockholders an Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 thereunder. Parent or Purchaser will supply to the Company in favor thereofwriting and be solely responsible for any information so supplied with respect to any of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1 to be included in the Information Statement.
(fc) At Following the election or appointment of Purchaser's designees pursuant to this Section 1.03 and prior to the Effective Time, any time in which Xxxxxxx X. Berkeley is not a member amendment of this Agreement or the Restated Certificate of Incorporation or By-Laws of the Board Company, any extension by the Company of Directorsthe time for the performance of any of the obligations or other acts of Parent or Purchaser or waiver of any of the Company's rights hereunder, will require the holders concurrence of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information directors of the Company provided to then in office who are neither designated by Purchaser, employees of the Company or learned by the Observer in connection this paragraph (f)any of its subsidiaries nor otherwise affiliated with Purchaser.
Appears in 1 contract
Board of Directors and Committees. Section 14(f).
(a) Each Promptly upon the purchase by Merger Sub of Shares pursuant to the parties hereto agrees to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time thereafter, and subject to the last sentence of this Section 1.03(a), Parent shall be entitled to designate up to such number of directors, rounded to the nearest whole number, constituting at least a majority of the directors, on the Company Board as will give Parent representation on the Company Board equal to the product of the number of directors on the Company Board (giving effect to any increase in accordance with the number of directors pursuant to this Section 2(b1.03) belowand the percentage that the number of Shares beneficially owned by Parent and Merger Sub bears to the total number of outstanding Shares, and the Company shall use all reasonable efforts to, upon request by Parent, promptly, at the Company’s election, either increase the size of the Company Board or secure the resignation of such number of directors as is necessary to enable Parent’s designees to be elected or appointed to the Company Board and to cause Parent’s designees to be so elected or appointed. At such times, the Company will use its best efforts to cause persons designated by Parent to constitute a majority of each committee of the Company Board, other than any committee of the Company Board, if any, established to take action under this Agreement. Notwithstanding the foregoing, the Company shall use all reasonable efforts to ensure that three of the members of the Company Board as of the date hereof shall remain members of the Company Board until the Effective Time (as defined in Section 2.02 hereof). If any Shareholder which has the right number of directors who are members of the Company Board as of the date hereof is reduced below three prior to the Effective Time, the remaining directors who are members of the Company Board as of the date hereof or their designees (or if there is only one such director, that remaining director) shall be entitled to designate a member of the Board of Directors in accordance with Section 2(bperson (or persons) has not designated to fill such member to the Company’s Board of Directors, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, vacancy (or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designatedvacancies).
(b) Each The Company’s obligation to appoint designees to the Company Board shall be subject to Section 14(f) of the parties further covenants Exchange Act and agrees Rule 14f-1 promulgated thereunder. Subject to vote the Parent’s compliance with the final sentence of this Section 1.03(b), the Company shall promptly take all actions, including filing an amendment to the Schedule 14D-9 (at a meeting or by written consent) all Capital Stock and disseminating such amendment to the stockholders of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified personsextent required by applicable Laws) to cause and maintain the election to the Board of Directors of the following:
(i) containing such information with respect to the three Company and its officers and directors and Parent’s designees as Section 14(f) and Rule 14f-1 require, in order to fulfill its obligations under this Section. Parent shall timely supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(3c) persons Following the election or appointment of Parent’s designees pursuant to this Section 1.03 and prior to the Effective Time, if there shall be elected by the holders any directors of the Series A Stock pursuant to the Certificate of Incorporation (the “Series A Directors”), such Company who were directors shall be designated as follows: (A) for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long asany amendment of this Agreement, Apax holds shares any termination of Series A Stock in an amount equal to less than 50% this Agreement by the Company, any extension by the Company of the aggregate number of shares of Series A Stock issued to Apax on time for the Series A Closing Date (subject to appropriate adjustment in the event performance of any stock dividend, stock split, combination of the obligations or other similar recapitalization acts of Parent or Merger Sub or waiver of any of the Company’s rights hereunder or other action adversely affecting such sharesthe rights of stockholders of the Company (other than Parent or Merger Sub), then at least one (1) of will require the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders concurrence of a majority of the Series A Stock;
(ii) with respect to the two (2) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided abovedirectors.
(c) Notwithstanding the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if a majority of the Series A Directors do not vote in favor of such matter, then in order for such matter to be approved, a majority of the members of the Board of Directors, including at least two (2) of the Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
Samples: Merger Agreement (Inamed Corp)
Board of Directors and Committees. Section 14(f).
(a) Each Subject to the requirements of applicable law, promptly upon the purchase of not less than a majority of the parties hereto agrees outstanding shares by Purchaser of Shares pursuant to vote all Capital Stock of the Company now owned or hereafter acquired by such party so that the Company’s Board of Directors shall consist of no more than nine (9) members Offer and the number of members on the Company’s Board of Directors shall at all times equal the number of persons which have been designated from time to time in accordance with thereafter, subject to paragraph (c) of this Section 2(b) below. If any Shareholder which has the right 1.03, Purchaser shall be entitled to designate a member up to such number of the Board of Directors in accordance with Section 2(b) has not designated such member directors, rounded up to the Company’s Board of Directorsnext whole number plus one, each of the parties hereto agrees that such Shareholder may designate a member of the Board of Directors at any time, or from time to time, and the parties shall vote, to the extent possible, all Capital Stock of the Company to elect such designee. Until such time as any Shareholder which has the right to designate a member of the Board of Directors in accordance with Section 2(b) has designated such member to the Company’s Board of Directors, the number of members on the Company’s Board of Directors shall be reduced by the number of members which have not yet been designated.
(b) Each of the parties further covenants and agrees to vote (at a meeting or by written consent) all Capital Stock of the Company now owned or hereafter acquired by such party (and attend, in person or by proxy, all meetings of shareholders called for the purpose of electing directors), and the Company agrees to take all actions (including, but not limited to the nomination of specified persons) to cause and maintain the election to the Board of Directors of the following:
Company (the "Board") as will give Purchaser representation on the Board equal to the product of the total number of directors on the Board, after giving effect to such representation, and the percentage that such number of Shares so purchased bears to the total number of issued and outstanding Shares, and the Company shall use its reasonable efforts to, upon request by Purchaser, promptly, at the Company's election, either increase the size of the Board or secure the resignation of such number of directors as is necessary to enable Purchaser's designees to be elected to the Board and shall cause Purchaser's designees to be so elected, but in no event less than a majority of directors. At such times the Company will use its reasonable efforts to cause individuals designated by Purchaser to constitute the same percentage as is on the Board of (i) each committee of the Board (other than any committee of the Independent Directors), (ii) each board of directors of each subsidiary of the Company designated by Purchaser and (iii) each committee of each such board.
(b) The Company's obligations to appoint designees to the Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.03 and shall include in the Schedule 14D-9 such information with respect to the three (3Company and its officers and directors as is required under Section 14(f) persons to be elected by the holders of the Series A Stock pursuant and Rule 14f-1. Parent or Purchaser will supply to the Certificate of Incorporation (the “Series A Directors”), such directors shall Company in writing and be designated as follows: (A) solely responsible for so long as Apax holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then two (2) of the Series A Directors shall be designees of Apax, one of whom shall be Xxxxx Xxxxxx as of the date hereof; (B) if, and for so long as, Apax holds shares of Series A Stock in an amount equal to less than 50% of the aggregate number of shares of Series A Stock issued to Apax on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Apax; (C) for so long as Advance Capital holds shares of Series A Stock in an amount equal to at least 50% of the aggregate number shares of Series A Stock issued to Advance Capital on the Series A Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A Directors shall be a designee of Advance Capital, who shall be Xxxxxxx Xxxxx as of the date hereof; and (D) any remaining directors entitled to be elected by the holders of the Series A Stock shall be designated by the holders of a majority of the Series A Stock;
(ii) information with respect to the two (2any of them and their nominees, officers, directors and affiliates required by Section 14(f) directors to be elected by the holders of Series A1 Preferred Stock pursuant to the Certificate of Incorporation, such director shall be designated as follows: (A) for so long as Xxxx holds shares of Series A1 Stock in an amount equal to at least 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then the two (2) Series A1 Directors shall be designees of Xxxx, one of whom shall be Xxxx as of the date hereof; and (B) if, and for so long as, Xxxx holds shares of Series A1 Stock in an amount equal to less than 50% of the aggregate number of shares of Series A1 Stock issued to Xxxx on the Series A1 Closing Date (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization affecting such shares), then at least one (1) of the Series A1 Directors shall be a designee of Xxxx;
(iii) with respect to the one (1) director to be elected by the holders of the Common Stock pursuant to the Certificate of Incorporation, such director shall be designated by Xxxx, who shall be Xxxxxxx X. Berkeley as of the date hereof; and
(iv) with respect to the three (3) directors to be elected by the holders of the Common Stock and the Preferred Stock, pursuant to the Certificate of Incorporation (the “Independent Directors”), such directors shall be designated jointly by Apax and Xxxx upon mutual agreement, who shall be independent directors not affiliated with any Shareholder, and two (2) of whom shall be as of the date hereof Xxxxxx X. Berkeley and Xxx Xxxxxx (it being understood and agreed that the familial relationship between Xxxxxx X. Berkeley and Xxxxxxx X. Berkeley does not constitute an affiliation for purposes of this clause (iv)). Subject to the fiduciary obligations of each member of the Board of Directors, and so long as the relevant ownership levels set forth above continue to be satisfied, no party hereto shall vote to remove any member of the Board of Directors designated and/or elected in accordance with the aforesaid procedure unless the persons or groups so designating and/or electing such director as specified above so vote or direct that such director shall be removed, and in such event, all parties hereto shall vote in favor of the removal of such director. Any vacancy on the Board of Directors created by the resignation, removal, incapacity or death of any person designated under this Section 2(b) shall be filled by another person designated and/or elected in a manner so as to preserve the constituency of the Board of Directors as provided aboveRule 14f-1.
(c) Notwithstanding After the foregoing and in accordance with the Certificate of Incorporation, upon the occurrence of an Event of Default each Shareholder agrees time that it will promptly vote its shares of Capital Stock now owned or hereafter acquired by such Shareholder as necessary to cause (i) the removal of the three (3) Independent Directors then serving on the Board of Directors and (ii) the prompt election to the Board of Directors of three individuals designated by Apax (“Default Directors”) to replace the Independent Directors so removed.
(d) Each of Apax, Advance Capital and Xxxx hereby agrees, that for so long as they shall have the right to designate a member of the Board of Directors in accordance with Section 2(b) above, to take all actions, or cause there respective Purchaser's designees to take all actions (including, but not limited to the nomination of specified persons) to cause:
(i) the Board of Directors to appoint the following individuals to the Compensation Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax;
(ii) the Board of Directors to appoint the following individuals to the Audit Committee of the Board of Directors: Xxxx and one such Series A Director as may be designated by Apax; and
(iii) the Board of Directors to appoint, upon the formation of a special committee of the Board of Directors, the following individuals to such special committee: Xxxx and one such Series A Director as may be designated by Apax; provided, however, that any special committee formed for the purpose of addressing transactions or other matters involving Xxxx shall not include Xxxx or any director designated by Xxxx pursuant to Section 2(b)(ii) or (2)(b)(iii) as a member and any special committee formed for the purpose of addressing transactions or other matters involving Apax shall not include any Series A Director designated by Apax as a member. So long as Xxxxxxx X. Berkeley is a member of the Board of Directors, Mr. Berkeley shall receive notice of and may attend all meetings of the committees of the Board of Directors in a non-voting observer capacity and shall be entitled to receive all reports, presentations and materials as if Mr. Berkeley was a member of any such committee of the Board of Directors. The foregoing shall not be construed to restrict Mr. Berkeley from serving in a voting capacity on any committee of the Board of Directors to which Mr. Berkeley is appointed.
(e) Notwithstanding anything contained herein or in the Certificate of Incorporation (except for Section IV.7 therein) or bylaws of the Company, with respect to any matter to be voted upon by the Board of Directors, if constitute at least a majority of the Series A Directors do not vote in favor of such matterBoard and until the Effective Time, then in order for such matter to be approved, a majority of the members of the Board of Directors, including shall always have at least two members (2) of the "Independent Directors, must vote in favor thereof.
(f) At any time in which Xxxxxxx X. Berkeley is not a member of the Board of Directors, the holders of a majority of the Series B Stock may designate one individual (the “Observer”) to attend meetings of the Board of Directors and of all committees of the Board of Directors in a non-voting observer capacity. The Observer shall receive notice of all such meetings and shall be entitled to receive all reports, presentations and materials as if the Observer was a member of the Board of Directors and such committees of the Board of Directors; provided that an Observer may be excluded from access to any material or meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information or for other similar reasons. The Observer shall be subject to the Company’s approval, which approval shall not be unreasonably withheld. Camden will, and will cause the Observer to, hold in confidence and trust, and not use or disclose (except to Camden and its financial, legal or other advisors, provided such advisors agree to hold such confidential information in confidence"), any confidential information of the Company provided to or learned by the Observer in connection this paragraph (f).
Appears in 1 contract
