Common use of Board of Directors; Officers Clause in Contracts

Board of Directors; Officers. (a) At or prior to the Effective Time, each of MCS and NetIQ agrees to take such action as is necessary to cause the number of directors comprising the full Board of Directors of NetIQ to be nine (9) persons, including (i) four of the current members of NetIQ's Board of Directors (or, if fewer than four of the current members of NetIQ's Board of Directors are available or willing to serve as a director of NetIQ after the Effective Time, such replacement directors as may be nominated by the remaining members of NetIQ's Board of Directors in accordance with the Bylaws of NetIQ) (the "NetIQ Designees"), (ii) four of MCS's current directors nominated by MCS (or, if fewer than four of the current members of MCS's Board of Directors are available or willing to serve as a director of NetIQ after the Effective Time, such replacement directors as may be nominated by the remaining directors of MCS) (the "MCS Designees") and (iii) one additional independent director either (A) mutually selected by the Chairman of MCS and the Chief Executive Officer of NetIQ at or prior to the Effective Time or (B) selected by the Committee (as defined in Section 1.5(b)) after the Effective Time (the "Joint Designee"). (b) At the Effective Time, NetIQ's Board of Directors shall constitute a Compensation and Nominating committee (the "Committee"), which shall include four members, of whom two shall be MCS Designees (who shall be designated by Mr. Xxxxxxx Xxxxxxx as Chairman of NetIQ after the Effective Time) and two shall be NetIQ Designees (who shall be designated by Xx. Xxxxx-Xx Xxxxx as Chief Executive Officer of NetIQ after the Effective Time). The Committee shall have the customary responsibilities of the compensation committee of a publicly owned company, and shall in addition have the responsibility for recommending to the NetIQ Board of Directors the renomination of incumbent directors and the nomination of new candidates. (c) At or prior to the Effective Time, NetIQ shall take all necessary action to assure that the MCS Designees and the Joint Designee, if then designated, shall be appointed to the Board of Directors of NetIQ, and shall be directors of NetIQ as of the Effective Time. (d) The NetIQ Board of Directors shall be classified so that each of the three classes contains at least one MCS Designee and at least one NetIQ Designee, and so that the Joint Designee is in the class to be elected at the next annual meeting of NetIQ. (e) From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (i) the directors of the Surviving Corporation shall be the same as those of NetIQ, and (ii) the directors of subsidiaries of NetIQ and MCS shall be such persons who were serving in such capacities immediately prior to the Effective Time. (f) From and after the Effective Time, and until successors are duly elected or appointed and qualified in accordance with applicable law, the following persons shall hold the titles indicated at NetIQ and shall serve at the pleasure of the Board of Directors of NetIQ: Executive Chairman Xxxxxxx Xxxxxxx Chief Executive Officer Ching-Xx Xxxxx Chief Operating Officer Xxxxx Xxxx Chief Financial Officer Xxxxx Xxxxx Chief Technical Officer Xxx Xxxxxxxxx These persons shall also hold the same offices in the Surviving Corporation. Other management positions of NetIQ shall be determined by agreement between Xx. Xxxxxxx and Xx. Xxxxx in consultation with their respective boards of directors. In the absence of such agreement, the positions will be filled by the Board of Directors of NetIQ after the Effective Time. (g) At or prior to the Effective Time, NetIQ will amend its Bylaws to delineate the responsibilities associated with the positions described in the prior paragraph in accordance with the joint recommendation of Xx. Xxxxxxx and Xx. Xxxxx. In particular, the description of the role of Executive Chairman shall reflect the parties' agreement that it shall be a full-time position with active operational responsibilities determined from time to time by the Board of Directors in consultation with the Chief Executive Officer. (h) From and after the Effective Time, the existing officers of the subsidiaries of NetIQ and MCS shall continue to serve in such capacities at the pleasure of their respective boards of directors. (i) The Board of Directors of NetIQ after the Effective Time shall use its best efforts to preserve the proportion and classification of NetIQ and MCS Designees on the Board of Directors of NetIQ and the Committee as described in this Section 1.5 for a period of three years from the Effective Time.

Board of Directors; Officers. (a) At or prior to the Effective Time, each of MCS the Company and NetIQ Parent agrees to take such action as is necessary to cause the number of directors comprising the full Board of Directors of NetIQ Parent to be nine (9) persons, including (i) four of the six (6) current members of NetIQParent's Board of Directors (or, if fewer than four six (6) of the current members of NetIQParent's Board of Directors are available or willing to serve as a director of NetIQ Parent after the Effective Time, such replacement directors as may be nominated by the remaining members of NetIQParent's Board of Directors in accordance with the Bylaws of NetIQParent) (the "NetIQ DesigneesPARENT DESIGNEES"), ) and (ii) four three (3) of MCSthe Company's current directors nominated by MCS the Company and reasonably acceptable to Parent (or, if fewer than four three (3) of the current members of MCSthe Company's Board of Directors are available or willing to serve as a director of NetIQ Parent after the Effective Time, such replacement directors as may be nominated by the remaining directors of MCSthe Company) (the "MCS COMPANY Designees"). Parent shall cause each Company Designee to be elected to a different class of the Board of Directors, such that the Company Designees are proportionately spread among the classes of Parent's Board of Directors. If any of the Company Designees shall cease to serve as a member of the Parent's Board of Directors during his or her initial term by reason of resignation, removal, death or disability, the remaining Company Designees (or their replacements, as applicable) and (iii) one additional independent director either (A) mutually selected shall be entitled to designate the person to be nominated in such person's stead, subject to reasonable approval by the Chairman Parent's Board of MCS and the Chief Executive Officer of NetIQ at or prior to the Effective Time or (B) selected by the Committee (as defined in Section 1.5(b)) after the Effective Time (the "Joint Designee")Directors. (b) At the Effective Time, NetIQ's Board of Directors shall constitute a Compensation and Nominating committee (the "Committee"), which shall include four members, of whom two shall be MCS Designees (who shall be designated by Mr. Xxxxxxx Xxxxxxx as Chairman of NetIQ after the Effective Time) and two shall be NetIQ Designees (who shall be designated by Xx. Xxxxx-Xx Xxxxx as Chief Executive Officer of NetIQ after the Effective Time). The Committee shall have the customary responsibilities of the compensation committee of a publicly owned company, and shall in addition have the responsibility for recommending to the NetIQ Board of Directors the renomination of incumbent directors and the nomination of new candidates. (c) At or prior to the Effective Time, NetIQ shall take all necessary action to assure that the MCS Designees and the Joint Designee, if then designated, shall be appointed to the Board of Directors of NetIQ, and shall be directors of NetIQ as of the Effective Time. (d) The NetIQ Board of Directors shall be classified so that each of the three classes contains at least one MCS Designee and at least one NetIQ Designee, and so that the Joint Designee is in the class to be elected at the next annual meeting of NetIQ. (e) From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (i) the directors of the Surviving Corporation shall be the same as those of NetIQ, and (ii) the directors of subsidiaries of NetIQ and MCS shall be such persons who were serving in such capacities immediately prior to the Effective Time. (f) From and after the Effective Time, and until successors are duly elected or appointed and qualified in accordance with applicable law, the following persons shall hold the titles indicated at NetIQ Parent and shall serve at the pleasure of the Board of Directors of NetIQParent: Lorixx X. Xxxxxxx, Xxief Executive Chairman Xxxxxxx Xxxxxxx Chief Executive Officer Ching-Xx Xxxxx Officer; Robexx Xxxxxx, Xxesident and Chief Operating Officer Xxxxx Xxxx Chief Officer; Gary Xxxxxxxxx, Xxief Financial Officer Xxxxx Xxxxx Chief Technical Officer Xxx Xxxxxxxxx These persons shall also hold the same offices in the Surviving Corporation. Other management positions of NetIQ shall be determined by agreement between Xx. Xxxxxxx and Xx. Xxxxx in consultation with their respective boards of directors. In the absence of such agreementOfficer; Ann Xxxx, the positions will be filled by the Board of Directors of NetIQ after the Effective Time. (g) At or prior to the Effective Time, NetIQ will amend its Bylaws to delineate the responsibilities associated with the positions described in the prior paragraph in accordance with the joint recommendation of Xx. Xxxxxxx and Xx. Xxxxx. In particular, the description of the role of Executive Chairman shall reflect the parties' agreement that it shall be a full-time position with active operational responsibilities determined from time to time by the Board of Directors in consultation with the Chief Executive Xxief Technology Officer. (h) From and after the Effective Time, the existing officers of the subsidiaries of NetIQ and MCS shall continue to serve in such capacities at the pleasure of their respective boards of directors. (i) The Board of Directors of NetIQ after the Effective Time shall use its best efforts to preserve the proportion and classification of NetIQ and MCS Designees on the Board of Directors of NetIQ and the Committee as described in this Section 1.5 for a period of three years from the Effective Time.

Board of Directors; Officers. (a) At Beginning the date hereof and ending on the earlier of (x) the date that the AV Stockholders no longer hold of record in the aggregate at least one-half (1/2) of the Shares of the Company that they own collectively as of the date hereof (giving effect to any stock dividend or prior distribution, or a subdivision, combination, reclassification or other purely capital restructuring change in the Shares, the "Minimum Ownership"), (y) the date that the Company is required to file reports pursuant to Sections 13 or 15(d) of the Effective TimeSecurities and Exchange Act of 1934, each as amended, and (z) thirty months from the date hereof (the "Board Rights Termination Date"), all of MCS the Stockholders, and NetIQ agrees to any other persons who may become parties hereto, agree, and such Stockholders shall vote all of their Shares and take all such other action as is necessary to cause and ensure, that the number of directors comprising the full Board of Directors of NetIQ to the Company shall contain a minimum of: two (2) individuals designed exclusively by the SCI Stockholders, which the parties agree shall initially be nine Kennxxx Xxxx xxx Kevix Xxxxxx (9xxe "SCI Board Members"), two (2) personsindividuals exclusively designed by the AV Stockholders, including which the parties agree shall initially be Alexxxxxx Xxxx xxx Michxxx Xxxxxx (i) four xxe "AV Board members"); provided, however, that notwith standing the occurrence of the current members Board Rights Termination Date due to the expiration of NetIQ's the thirty-month period described in clause (z) above, so long as the AV Stockholders retain the Minimum Ownership of Shares in the Company, all of the Stockholders, and any other persons who may become parties hereto, agree, and such Stockholders shall vote all of their Shares and take all such other action to cause and ensure, that the Board of Directors (or, if fewer than four of the current members Company shall contain a minimum of NetIQ's Board of Directors are available or willing to serve as a director of NetIQ after the Effective Time, such replacement directors as may be nominated one (1) individual designated exclusively by the remaining members of NetIQ's Board of Directors in accordance with the Bylaws of NetIQ) (the "NetIQ Designees"), (ii) four of MCS's current directors nominated by MCS (or, if fewer than four of the current members of MCS's Board of Directors are available or willing to serve as a director of NetIQ after the Effective Time, such replacement directors as may be nominated by the remaining directors of MCS) (the "MCS Designees") and (iii) one additional independent director either (A) mutually selected by the Chairman of MCS and the Chief Executive Officer of NetIQ at or prior to the Effective Time or (B) selected by the Committee (as defined in Section 1.5(b)) after the Effective Time (the "Joint Designee")AV Stockholders. (b) At Beginning upon the Effective Time, NetIQ's Board of Directors shall constitute a Compensation and Nominating committee date thirty (the "Committee"), which shall include four members, of whom two shall be MCS Designees (who shall be designated by Mr. Xxxxxxx Xxxxxxx as Chairman of NetIQ 30) days after the Effective Time) and two shall be NetIQ Designees (who shall be designated by Xx. Xxxxx-Xx Xxxxx as Chief Executive Officer of NetIQ after date hereof, or earlier upon the Effective Time). The Committee shall have the customary responsibilities approval of the compensation committee majority of the SCI Board Members and the AV Board Members voting as a publicly owned companygroup, and ending on the Board Rights Termination Date, all of the Stockholders, and any other persons who may become parties hereto, agree, and such Stockholders shall in addition have the responsibility for recommending to the NetIQ Board vote all of Directors the renomination of incumbent directors their Shares and the nomination of new candidates. (c) At or prior to the Effective Time, NetIQ shall take all necessary such other action to assure cause and ensure, that the MCS Designees and the Joint Designee, if then designated, shall be appointed to the Board of Directors of NetIQthe Company shall contain, and shall be directors of NetIQ as of the Effective Time. (d) The NetIQ Board of Directors shall be classified so that each of the three classes contains at least one MCS Designee and at least one NetIQ Designee, and so that the Joint Designee is in the class to be elected at the next annual meeting of NetIQ. (e) From and after the Effective Time, until successors are duly elected or appointed and qualified in accordance with applicable law, (i) the directors of the Surviving Corporation shall be the same as those of NetIQ, and (ii) the directors of subsidiaries of NetIQ and MCS shall be such persons who were serving in such capacities immediately prior addition to the Effective Time. (f) From SCI Board members and after the Effective Time, and until successors are duly elected or appointed and qualified in accordance with applicable law, the following persons shall hold the titles indicated at NetIQ and shall serve at the pleasure of the AV Board of Directors of NetIQ: Executive Chairman Xxxxxxx Xxxxxxx Chief Executive Officer Ching-Xx Xxxxx Chief Operating Officer Xxxxx Xxxx Chief Financial Officer Xxxxx Xxxxx Chief Technical Officer Xxx Xxxxxxxxx These persons shall also hold the same offices in the Surviving Corporation. Other management positions of NetIQ shall be determined by agreement between Xx. Xxxxxxx and Xx. Xxxxx in consultation with their respective boards of directors. In the absence of such agreement, the positions will be filled by the Board of Directors of NetIQ after the Effective Time. (g) At or prior to the Effective Time, NetIQ will amend its Bylaws to delineate the responsibilities associated with the positions members described in the prior paragraph in accordance with the joint recommendation of Xx. Xxxxxxx and Xx. Xxxxx. In particularSection 9(a) above, the description of the role of Executive Chairman shall reflect the parties' agreement that it shall be a full-time position with active operational responsibilities determined from time to time by the Board of Directors in consultation with the Chief Executive Officer. three (h3) From and after the Effective Time, the existing officers of the subsidiaries of NetIQ and MCS shall continue to serve in such capacities at the pleasure of their respective boards of directors. (i) The Board of Directors of NetIQ after the Effective Time shall use its best efforts to preserve the proportion and classification of NetIQ and MCS Designees on the Board of Directors of NetIQ and the Committee outside directors selected as described in this Section 1.5 for a period of three years from the Effective Time.follows: