Board of Directors Matters. (a) The Investors and the Company hereby acknowledge and agree that:
(i) Effective November 1, 2010, (A) the Company shall expand the size of the Board to nine directors, (B) Xxxxxxx X. Xxxxxx (the “Investor Director”) shall be appointed to serve as a director on the Board in Class III and (C) Xxxxxx X. X’Xxxxxxx shall be appointed to serve as a director on the Board in Class II.
(ii) The Nominating and Corporate Governance Committee (or a duly constituted subcommittee thereof) (the “Nominating Committee”) of the Board will recommend for nomination and the Board will nominate Xxxxxx X. X’Xxxxxxx and two of the directors currently serving in Class II (the “2010 Nominees”) for election at the 2010 Annual Meeting to serve in Class II and will recommend a vote for the 2010 Nominees and solicit proxies from the Company’s stockholders for the election of the 2010 Nominees at the 2010 Annual Meeting.
(iii) The Company agrees that if the Investor Director resigns for any reason other than pursuant to Section 4 or is otherwise unable to serve as a director or is removed as a director by the stockholders of the Company, the Investors shall be entitled to designate, for consideration by the Nominating Committee as a replacement for the Investor Director, an individual who (A) qualifies as “independent” under the Nasdaq corporate governance standards, (B) has relevant business and financial experience, and (C) has not been previously nominated (or noticed as a director to be nominated) as a director by the Investors. The Nominating Committee, consistent with its fiduciary duties, shall consider such candidate within ten (10) business days after a completed customary director and officer questionnaire has been received by the Nominating Committee, and the Board shall appoint such candidate approved by the Nominating Committee (whose approval and appointment shall not be unreasonably withheld) within five (5) business days (any such replacement director appointed in accordance with the provisions of this Section 1(a)(iii) shall be referred to as the “Investor Director” for the purposes of this Agreement). In the event the Nominating Committee shall decline to recommend any candidate designated by the Investors, the Investors may propose a replacement designee, subject to the above criteria.
(b) Upon execution of this Agreement, the Investors hereby irrevocably withdraw the Nomination Letter.
Board of Directors Matters. For so long as MPM Capital continues to own the Threshold Securities:
(a) the Company shall: (i) use its reasonable best efforts to cause one person designated by MPM Capital to be nominated and elected to the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election directors (the “MPM Designee”), which designee shall initially be initially Xxxx Xxxxx; and (ii) use its reasonable best efforts to cause one person designated by mutual agreement of MPM Capital and Bay City Capital to be nominated and elected to the Company’s Board of Directors at each meeting or pursuant to each consent of the Company’s shareholders for the election of directors (the “Investor Designee”); and (iii) if any MPM Designee or Investor Designee elected to the Company’s Board of Directors ceases to be a member of the Company’s Board of Directors during such person’s term as a director due to such person’s resignation, death or removal, the Company shall use its reasonable best efforts, subject to applicable laws and regulations, to cause such vacancy to be filled by a replacement designated by MPM Capital or by mutual agreement of MPM Capital and Bay City Capital, as the case may be, and such designee shall be an MPM Designee and the Investor Designee, as applicable, for purposes of this Agreement; and
(b) as long as an MPM Designee remains on the Company’s Board of Directors pursuant to this Section 7.2, the Company shall use its commercially reasonable efforts to appoint one of the MPM Designees to the compensation committee of the Company’s Board of Directors; provided, however, that the Company shall not be required to make any appointment to a committee of the Company’s Board of Directors if such appointment could reasonably be expected to conflict with federal securities laws or any other rules or regulations then in effect of Nasdaq or any exchange on which the Company’s securities are listed for trading.
Board of Directors Matters. (a) In accordance with Article VII, Section 4 of the charter of the Company, the Company shall nominate persons designated by the Advisor as candidates for election as directors at any stockholders meeting at which directors are to be elected such that the Advisor designees constitute as nearly as possible 29% of the Board of Directors, in all cases rounding to the next larger whole number, for so long as this Amended Agreement is in effect.
(b) The Company shall not amend Article VII, Section 4 of the charter of the Company as in effect as of the date of this Amended Agreement or make any other amendments to the charter or bylaws of the Company that would in any way impair the ability of the Company to comply in full with its obligations under this Amended Agreement.
(c) The Parties stipulate that a breach of this Section 2.4 would cause irreparable harm and that the obligations of the Company under this Section 2.4 shall, in addition to any other remedies available at applicable law, be enforceable by a decree of specific performance issued by any court of competent jurisdiction, and appropriate injunctive relief may be applied for and granted in connection therewith.
Board of Directors Matters. Upon the Investor and its Affiliates in the aggregate ceasing to hold at least 3% of (i) the outstanding shares of Common Stock and (ii) any equity securities of the Company issued or issuable directly or indirectly with respect to the foregoing securities referred to in clause (i) immediately above by way of stock dividend or stock split or in connection with a combination or exchange of shares, recapitalization, merger, consolidation or other reorganization, any individual nominated to the Board by the Investor shall promptly tender his or her resignation to the Board and, unless a majority of the Board affirmatively votes not to accept such director’s resignation, such director shall no longer remain a director of the Company.
Board of Directors Matters. Unless otherwise agreed by a majority of the members of the Board of Directors, including a majority of the Series A Directors, meetings of the Board of Directors shall be held at least bimonthly. The Company shall reimburse all members of the Board of Directors for all reasonable travel expenses incurred by them in connection with the attendance of meetings of the Board of Directors.
Board of Directors Matters. The Company shall reimburse the nonemployee Directors for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board of Directors or any committee thereof.
Board of Directors Matters. (a) The Board agrees to nominate Xxxxxx X. Xxxxxxxxxx as part of the management’s slate of nominees for election to the Board at the Special Meeting and at any subsequent meeting of stockholders at which directors are to be elected prior to the 2009 Annual Meeting (each such meeting, a “Subsequent Meeting”).
(b) Each of the Holders agrees to vote all of the Shares for which he or it has voting power, in favor of each person nominated by the Board or any committee thereof, and not to subsequently change or revoke such vote or vote for any other nominees besides each person nominated by the Board or any committee thereof at the Special Meeting or any Subsequent Meeting.
Board of Directors Matters. (a) Unless otherwise decided by the Board of Directors, including the Series Preferred Director Majority, the Board of Directors shall hold at least five (5) meetings during each fiscal year with a minimum of one (1) meeting to be held during each fiscal quarter.
(b) The Company shall reimburse all non-employee directors for all direct out-of-pocket expenses reasonably and customarily incurred by directors in attending such meetings and attending events on behalf of and at the request of the Company.
(c) So long as the holders of Preferred Stock are entitled to elect a Series Preferred Director, the Company hereby covenants and agrees with each of the Investors that it shall not, without approval of the Board of Directors, which approval must include the affirmative vote of the Series Preferred Director Majority:
(i) make, or permit any subsidiary to make, any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership, or other entity unless it is wholly owned by the Company;
(ii) make, or permit any subsidiary to make, any loan or advance to any person or entity, including, without limitation, any employee or director of the Company or any subsidiary, except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board of Directors (including the Series Preferred Director Majority);
(iii) guarantee, directly or indirectly, or permit any subsidiary to guarantee, directly or indirectly, any indebtedness except for trade accounts of the Company or any subsidiary arising in the ordinary course of business;
(iv) make any investment inconsistent with any investment policy approved by the Board of Directors;
(v) incur any aggregate indebtedness in excess of $100,000 that is not already included in a budget approved by the Board of Directors, other than trade credit incurred in the ordinary course of business;
(vi) otherwise enter into or be a party to any transaction with any director, officer, or employee of the Company (or any immediate family member), any stockholder of the Company, or any company or entity directly or indirectly controlled by an officer, director or stockholder of the Company, including without limitation any “management bonus” or similar plan providing payments to employees in connection with a Liquidation Event, as such term is defined in the Restated Charter, except for (1) transactions contemplated by thi...
Board of Directors Matters. (a) During such time after the Initial Closing as the Investors (or their affiliates) shall continue to own in the aggregate not less than the Threshold Number (as defined below) of shares of Preferred Stock (or such number of common shares of the Company into which such shares have been converted, or a combination thereof), the Company will support the nomination of, and the Company's nominating committee (or other board committee exercising a similar function) shall recommend to the Board of Directors, and the Board of Directors will ensure, that (A) four designees of the Investors (if the Investors and their affiliates together beneficially own more than 25% of the Total Outstanding Common Shares
Board of Directors Matters. (a) Unless otherwise approved by a majority of the Preferred Directors, the Board of Directors shall meet four times in person per year,in accordance with an agreed-upon schedule.
(b) Each Preferred Director shall have the right, but not the obligation, to be a member of the audit and compensation committee of the Board of Directors.
(c) The Company shall reimburse the directors for all reasonable out-of-pocket expenses incurred (consistent with the Company’s policies) in connection with their attendance of meetings and activities requested by the Company as a result of their role as a director of the Company; provided, however, that the Company shall not be obligated to reimburse such expenses incurred by the Series B Director that are in excess of $20,000 per year.
