Common use of Board of Directors Composition Clause in Contracts

Board of Directors Composition. (a) Following the Initial Closing, upon the approval by the Company’s Board of Directors, the authorized number of directors of the Company’s Board of Directors shall be set at nine members. For so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation, the Company thereafter shall not increase the size of the Board of Directors without the consent of the Investor. (b) Following the increase in the authorized size of the Company’s Board of Directors in 1(a) herein (the “Board Increase”), (i) the Board of Directors shall comprise of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xx and four (4) vacant seats, subject to the filling of such vacant seats at or immediately following the Board Increase as provided below, and (ii) Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxxxx shall initially be among the “independent directors” as defined under Nasdaq Listing Rule 5602(a)(2). (c) For so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion Shares), the Investor shall have the right to designate (i) two (2) directors to the Board of Directors, who can be non-independent directors, and (ii) one (1) additional director to the Board of Directors, who shall qualify as an “independent director” as defined under Nasdaq Listing Rule 5605(a)(2). (d) If, at any time on or after the date of this Agreement, Investor and its affiliates in the aggregate cease to beneficially own at least 2,666 of the Series A Preferred Stock issued pursuant to the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion), the rights conferred under this section shall no longer apply and, if requested by the Company, the Investor shall request its director designees mentioned in clauses (i) and (ii) herein to resign from the Board of Directors; provided that once the Investor ceases to beneficially own its threshold amount of Series A Preferred Stock or Conversion Shares, the Company will have no obligation to include these director designees as nominees in the Company’s annual meeting of stockholders for the applicable year(s) when such director designees’ term is completed. (e) For the avoidance of doubt, all director candidates to the Board of Directors, including the designees set forth above, shall be subject to (i) evaluation and approval by the Board of Directors and the Nominating and Corporate Governance Committee of the Board of Directors (the “NCGC”) in accordance with the Company’s Corporate Governance Guidelines, (ii) appointment by the Board of Directors in accordance with the Company’s Amended and Restated Bylaws, as amended and/or restated from time to time, (iii) following any initial appointment, election by the Company’s stockholders in accordance with the Company’s Second Amended and Restated Certificate of Incorporation, as amended and/or restated from time to time, (iv) satisfaction of eligibility, independence and other criteria applicable generally to all other members of the Company’s Board of Directors and (v) compliance with applicable law or regulation or the rules of the principal market on which the Common Stock is traded. For the avoidance of doubt, the Investor will endeavor to ensure that directors meet reasonable requirements of expertise set by the NCGC, and furthermore, will remain open to director nominations suggested by the rest of the Board of Directors. (f) Subject to the right of the Investor to substitute or replace designees, the Investor’s initial designees pursuant to Section 1(c)(i) shall initially consist of one vacancy and Xxxxxx Xxxx and the Investor’s initial designee pursuant to Section 1(c)(ii) shall initially consist of one vacancy. The Company agrees that such persons satisfy all criteria for appointment to and membership on the Board of Directors, including as provided in Section 1(e).

Board of Directors Composition. (a) Following 2.1.1. The Parties note the Initial Closing, upon the approval by the Company’s Board of Directors, the authorized number of directors of the Company’s Board of Directors shall be set at nine members. For so long as the Investor current organization and its affiliates in the aggregate beneficially own at least either 2,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation, the Company thereafter shall not increase the size composition of the Board of Directors without the consent described below and see no need to make any changes thereto merely as a result of the Investor.Transaction: Current Board composition: nine (9) directors of which: (b) Following the increase in the authorized size of the Company’s Board of Directors in 1(a) herein (the “Board Increase”), (i) six (6) have been appointed initially as non-independent GPA appointees in accordance with the electoral quotient (“cuociente electoral”) system; (ii) three (3) qualify as independent and have been appointed with the favorable vote of GPA. 2.1.2. When the Board of Directors shall comprise need to be renewed, as a result of Xxxxxx Xxxxxxxthe expiration of its current term or for any other reason, Xxxx Xxxxxxor any vacancy needs to be filled or director needs to be replaced, Xxxxxx XxxxxxxxxxxCGP shall determine the candidate or candidates for Board appointment, Xxxxx Xxxxxxxindependent or not, Xxxxxxx Xx and four (4) vacant seatsdepending on the vacancy/ies to be filled, subject to be put forth to the filling of such vacant seats at or immediately following the Board Increase as provided belowÉxito Shareholders’ Meeting for appointment; in so doing, CGP shall consult with GPA, take into account and (ii) Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxxxx shall initially be among the “independent directors” as defined under Nasdaq Listing Rule 5602(a)(2). (c) For so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 shares of the Series A Preferred Stock (subject give due consideration to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization suggestions GPA may have with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion Shares), the Investor shall have the right to designate (i) two (2) directors to the Board of Directors, who can be non-independent directors, and (ii) one (1) additional director to the Board of Directors, who shall qualify as an “independent director” as defined under Nasdaq Listing Rule 5605(a)(2)candidates. (d) If, at any time on or after the date of this Agreement, Investor and its affiliates in the aggregate cease to beneficially own at least 2,666 of the Series A Preferred Stock issued pursuant to the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion), the rights conferred under this section shall no longer apply and, if requested by the Company, the Investor shall request its director designees mentioned in clauses (i) and (ii) herein to resign from the Board of Directors; provided that once the Investor ceases to beneficially own its threshold amount of Series A Preferred Stock or Conversion Shares, the Company will have no obligation to include these director designees as nominees in the Company’s annual meeting of stockholders for the applicable year(s) when such director designees’ term is completed. (e) For the avoidance of doubt, 2.1.3. In all director candidates to the Board of Directors, including the designees set forth above, shall be subject to (i) evaluation and approval by the Board of Directors and the Nominating and Corporate Governance Committee elections of the Board of Directors where the electoral quotient (cuociente electoral) applies, and provided (i) a single slate of directors is put forth to the “NCGC”Éxito Shareholders’ Meeting and (ii) the GPA Éxito Holders hold more than 10% of the shares and voting rights of the Company, at least one person proposed by GPA and acceptable to both Parties shall be included by CGP in the last line of the slate of candidates put forth for appointment by the Éxito Shareholders’ Meeting. 2.1.4. Each Party shall at the Éxito Shareholders’ Meeting: (i) attend directly or through a duly authorized representative so as to cause the entirety Company Securities it holds to be counted as present thereat for purposes of establishing a quorum, and (ii) vote (or cause to be voted), in person or by proxy, all Company Securities (whether acquired heretofore or hereafter) that are owned by such Party or its Affiliates or as to which such Party has, directly or indirectly, the right to vote or direct the voting, in favor of the candidate or slate of candidates put forth by CGP in accordance with the Company’s Corporate Governance Guidelines, (ii) appointment by the Board of Directors in accordance with the Company’s Amended Articles 2.1.2 and Restated Bylaws, as amended and/or restated from time to time, (iii) following any initial appointment, election by the Company’s stockholders in accordance with the Company’s Second Amended and Restated Certificate of Incorporation, as amended and/or restated from time to time, (iv) satisfaction of eligibility, independence and other criteria applicable generally to all other members of the Company’s Board of Directors and (v) compliance with applicable law or regulation or the rules of the principal market on which the Common Stock is traded. For the avoidance of doubt, the Investor will endeavor to ensure that directors meet reasonable requirements of expertise set by the NCGC, and furthermore, will remain open to director nominations suggested by the rest of the Board of Directors2.1.3 above. (f) Subject to the right of the Investor to substitute or replace designees, the Investor’s initial designees pursuant to Section 1(c)(i) shall initially consist of one vacancy and Xxxxxx Xxxx and the Investor’s initial designee pursuant to Section 1(c)(ii) shall initially consist of one vacancy. The Company agrees that such persons satisfy all criteria for appointment to and membership on the Board of Directors, including as provided in Section 1(e).

Board of Directors Composition. (aA) Following The business and affairs of the Initial ClosingCorporation shall be managed by or under the direction of the Board. Except as otherwise provided for or fixed pursuant to the provisions of Article IV of this Amended and Restated Certificate of Incorporation (including any certificate of designation) relating to the rights of the holders of any series of Preferred Stock to elect additional directors, the total number of directors constituting the entire Board shall be not less than three directors or more than fifteen directors, the exact number of directors to be determined from time to time by resolution adopted by the Board; provided, however, that the upon the approval Filing Time the number of directors shall be nine directors. (B) Commencing with the Filing Time, the directors (other than those directors elected by the Company’s holders of any series of Preferred Stock provided for or fixed pursuant to the provisions of Article IV hereof (including any certificate of designation) (the “Preferred Stock Directors”)) shall be divided into three classes designated Class I, Class II and Class III. Each class shall consist, as nearly as possible, of one-third of the total number of directors constituting the entire Board. Class I directors shall initially serve for a term expiring at the first annual meeting of stockholders following the Filing Time, Class II directors shall initially serve for a term expiring at the second annual meeting of stockholders following the Filing Time and Class III directors shall initially serve for a term expiring at the third annual meeting of stockholders following the Filing Time. At each annual meeting of stockholders, successors to the class of directors whose term expires at that annual meeting shall be elected for a three-year term until the election and qualification of their respective successors in office. If the number of directors is from time to time changed (other than Preferred Stock Directors), any increase or decrease shall be apportioned among the classes so as to maintain the number of directors in each class as nearly equal as possible. The Board is authorized to assign members of Directorsthe Board already in office to Class I, Class II or Class III upon the Filing Time. (C) Subject to the rights of the holders of any one or more series of Preferred Stock then outstanding, newly created directorships resulting from any increase in the authorized number of directors or any vacancies in the Board resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled solely by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board. Any director so chosen shall hold office until the next annual meeting of stockholders and until his successor shall be elected and qualified. In such event, the director elected by the stockholders at such next annual meeting shall hold office for a term that shall coincide with the remaining term of the class of directors to which such person has been elected. No decrease in the number of directors shall shorten the term of any incumbent director. (D) During any period when the holders of any series of Preferred Stock have the right to elect additional directors, then upon commencement and for the duration of the period during which such right continues: (i) the then otherwise total authorized number of directors of the Company’s Board Corporation shall automatically be increased by such specified number of Directors directors, and the holders of such Preferred Stock shall be set at nine members. For entitled to elect the additional directors so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination provided for or other similar recapitalization with respect to such Series A Preferred Stock) issued fixed pursuant to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation, the Company thereafter shall not increase the size of the Board of Directors without the consent of the Investor. (b) Following the increase in the authorized size of the Company’s Board of Directors in 1(a) herein (the “Board Increase”), (i) the Board of Directors shall comprise of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xx and four (4) vacant seats, subject to the filling of such vacant seats at or immediately following the Board Increase as provided belowsaid provisions, and (ii) Xxxxxx Xxxxxxxxxxxeach such additional director shall serve until such director’s successor shall have been duly elected and qualified, Xxxxx Xxxxxxx or until such director’s right to hold such office terminates pursuant to said provisions, whichever occurs earlier, subject to his earlier death, resignation, retirement, disqualification or removal. Except as otherwise provided by the Board in the resolution or resolutions establishing such series, whenever the holders of any series of Preferred Stock having such right to elect additional directors are divested of such right pursuant to the provisions of such stock, the terms of office of all such additional directors elected by the holders of such stock, or elected to fill any vacancies resulting from the death, resignation, disqualification or removal of such additional directors, shall forthwith terminate and Xxxx Xxxxxx the total authorized number of directors of the Corporation shall initially be among the “independent directors” as defined under Nasdaq Listing Rule 5602(a)(2)reduced accordingly. (cE) For so long as A director shall hold office until the Investor annual meeting for the year in which his or her term expires and its affiliates in the aggregate beneficially own until his or her successor shall be elected and shall qualify, subject, however, to prior death, resignation, retirement, disqualification or removal from office. A director may resign at least either 2,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant time upon notice to the Purchase Agreement or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion Shares), the Investor shall have the right to designate (i) two (2) directors to the Board of Directors, who can be non-independent directors, and (ii) one (1) additional director to the Board of Directors, who shall qualify as an “independent director” as defined under Nasdaq Listing Rule 5605(a)(2)Corporation. (dF) If, at any time on or after Directors need not be elected by written ballot unless the date of this Agreement, Investor and its affiliates in the aggregate cease to beneficially own at least 2,666 by-laws of the Series A Preferred Stock issued pursuant to the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) or 2,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion), the rights conferred under this section Corporation shall no longer apply and, if requested by the Company, the Investor shall request its director designees mentioned in clauses (i) and (ii) herein to resign from the Board of Directors; provided that once the Investor ceases to beneficially own its threshold amount of Series A Preferred Stock or Conversion Shares, the Company will have no obligation to include these director designees as nominees in the Company’s annual meeting of stockholders for the applicable year(s) when such director designees’ term is completedso provide. (e) For the avoidance of doubt, all director candidates to the Board of Directors, including the designees set forth above, shall be subject to (i) evaluation and approval by the Board of Directors and the Nominating and Corporate Governance Committee of the Board of Directors (the “NCGC”) in accordance with the Company’s Corporate Governance Guidelines, (ii) appointment by the Board of Directors in accordance with the Company’s Amended and Restated Bylaws, as amended and/or restated from time to time, (iii) following any initial appointment, election by the Company’s stockholders in accordance with the Company’s Second Amended and Restated Certificate of Incorporation, as amended and/or restated from time to time, (iv) satisfaction of eligibility, independence and other criteria applicable generally to all other members of the Company’s Board of Directors and (v) compliance with applicable law or regulation or the rules of the principal market on which the Common Stock is traded. For the avoidance of doubt, the Investor will endeavor to ensure that directors meet reasonable requirements of expertise set by the NCGC, and furthermore, will remain open to director nominations suggested by the rest of the Board of Directors. (f) Subject to the right of the Investor to substitute or replace designees, the Investor’s initial designees pursuant to Section 1(c)(i) shall initially consist of one vacancy and Xxxxxx Xxxx and the Investor’s initial designee pursuant to Section 1(c)(ii) shall initially consist of one vacancy. The Company agrees that such persons satisfy all criteria for appointment to and membership on the Board of Directors, including as provided in Section 1(e).

Board of Directors Composition. (a) Following the Initial Closing, upon the approval by the Company’s Board of Directors, the authorized number of directors of the Company’s Board of Directors shall be set at nine members. For so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 1,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 1,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation, the Company thereafter shall not increase the size of the Board of Directors without the consent of the Investor. (b) Following the increase in the authorized size of the Company’s Board of Directors in 1(a) herein (the “Board Increase”), (i) the Board of Directors shall comprise of Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxx Xx and four (4) vacant seats, subject to the filling of such vacant seats at or immediately following the Board Increase as provided below, and (ii) Xxxxxx Xxxxxxxxxxx, Xxxxx Xxxxxxx and Xxxx Xxxxxx shall initially be among the “independent directors” as defined under Nasdaq Listing Rule 5602(a)(2). (c) For so long as the Investor and its affiliates in the aggregate beneficially own at least either 2,666 1,666 shares of the Series A Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) issued pursuant to the Purchase Agreement or 2,666,500 1,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion Shares), the Investor shall have the right to designate (i) two one (21) directors director to the Board of Directors, who can shall initially be non-independent directorsXxxxxx Xxxxxxx, and (ii) one (1) additional director to the Board of Directors, who shall qualify as an “independent director” as defined under Nasdaq Listing Rule 5605(a)(2). (d) If, at any time on or after the date of this Agreement, Investor and its affiliates in the aggregate cease to beneficially own at least 2,666 1,666 of the Series A Preferred Stock issued pursuant to the Purchase Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Series A Preferred Stock) or 2,666,500 1,666,500 of the Conversion Shares issuable upon conversion of the Series A Preferred Stock pursuant to the Certificate of Designation (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to such Conversion), the rights conferred under this section shall no longer apply and, if requested by the Company, the Investor shall request its director designees mentioned in clauses (i) and (ii) herein to resign from the Board of Directors; provided that once the Investor ceases to beneficially own its threshold amount of Series A Preferred Stock or Conversion Shares, the Company will have no obligation to include these director designees as nominees in the Company’s annual meeting of stockholders for the applicable year(s) when such director designees’ term is completed. (e) For the avoidance of doubt, all director candidates to the Board of Directors, including the designees set forth above, shall be subject to (i) evaluation and approval by the Board of Directors and the Nominating and Corporate Governance Committee of the Board of Directors (the “NCGC”) in accordance with the Company’s Corporate Governance Guidelines, (ii) appointment by the Board of Directors in accordance with the Company’s Amended and Restated Bylaws, as amended and/or restated from time to time, (iii) following any initial appointment, election by the Company’s stockholders in accordance with the Company’s Second Amended and Restated Certificate of Incorporation, as amended and/or restated from time to time, (iv) satisfaction of eligibility, independence and other criteria applicable generally to all other members of the Company’s Board of Directors and (v) compliance with applicable law or regulation or the rules of the principal market on which the Common Stock is traded. For the avoidance of doubt, the Investor will endeavor to ensure that directors meet reasonable requirements of independence (including as required by Nasdaq corporate governance standards) or expertise (as the case may be) set by the NCGC, and furthermore, will remain open to director nominations suggested by the rest of the Board of Directors. (f) Subject to the right of the Investor to substitute or replace designees, the Investor’s Investor shall designate Xxxxxx Xxxxxxx as its initial designees designee pursuant to Section 1(c)(i) shall initially consist of one vacancy and Xxxxxx Xxxx and the Investor’s initial designee pursuant to Section 1(c)(ii) shall initially consist of one vacancybe vacant. The Company agrees that such persons satisfy all criteria for appointment to and membership on the Board of Directors, including as provided in Section 1(e).