Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows: (a) The Board shall increase the size of the Company’s board of directors (the “Board”) to appoint the Villere Designee to the Board to serve as a director until the Annual Meeting of the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015. (b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”). (c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith. (d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives. (e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations). (f) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions. (g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”). (h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement. (i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter. (j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 3 contracts
Samples: Director Appointment Agreement, Director Appointment Agreement (Epiq Systems Inc), Director Appointment Agreement (Villere St Denis J & Co LLC)
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows:
(a) The Board shall increase Concurrently with the execution of this Agreement, the Company has (i) increased the size of the Company’s board of Board by one (1) director to ten (10) directors and (ii) appointed the “Board”) to appoint the Villere IVA Designee to the Board to serve as a director until of the Annual Meeting Company. Prior to the date hereof, the IVA Designee has delivered and the Company has accepted (x) a completed standard director and officer questionnaire of the Company shareholders (the “Annual MeetingD&O Questionnaire”), (y) held an executed letter in the year 2015 form attached hereto as Exhibit A (the “2015 IVA Designee Letter”) and (z) the executed irrevocable resignation in the form attached hereto as Exhibit B (the “IVA Designee Resignation,” and together with the D&O Questionnaire and the 2016 Nominee Letter, the “IVA Designee Nomination Documents”).
(b) Unless the IVA Designee has resigned from the Board, the Company’s slate of nominees for election as directors of the Company at the 2016 Annual Meeting shall include the IVA Designee.
(c) For any annual meeting at which the IVA Designee is nominated by the Company and agrees to serve (including if the Company’s slate of nominees for election as directors of the Company at the 2016 Annual Meeting includes the IVA Designee pursuant to Section 1(b) above), the Company will use reasonable best efforts to cause the election of the IVA Designee to the Board at such annual meeting (including recommending that the Company’s stockholders vote in favor of the election of the IVA Designee (along with all of the Company’s nominees) and otherwise supporting the IVA Designee for election in the same manner in which the Company supports its other nominees in the aggregate).
(d) For so long as the IVA Designee serves on the Board, but subject to (x) compliance with New York Stock Exchange listing requirements regarding independence of directors and committee members, including applicable enhanced requirements with respect to certain committees and (y) compliance with changes in applicable law after the date of this Agreement (collectively, the “Independence Requirements”), the IVA Designee shall be, and concurrently with the execution of this Agreement has been, appointed to (i) the Compensation Committee of the Board, (ii) the Nominating Committee and (iii) the External Relations Committee; provided that such IVA Designee, in his sole discretion, may decline to serve on any such committee at any time. The Board, based on information provided by the IVA Designee has determined that, as of the date hereof, the IVA Designee satisfies the Independence Requirements.
(e) Should the IVA Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or for any other reason fail to serve or is not serving on, the Board (other than (i) as a result of not being nominated by the Company at an annual meeting at which such IVA Designee would be required to stand for re-election pursuant to the Company’s certificate of incorporation to remain on the Board (such meeting, the “Re-election Meeting”), except if the Company was required to so nominate such IVA Designee pursuant to this Agreement, or (ii) as a result of the application of Section 1(f) below), IVA shall be entitled to designate a replacement board member for such IVA Designee that is reasonably satisfactory to the Board, consistent with the standards and processes followed in connection with the initial appointment of the IVA Designee, including with respect to Independence Requirements (a “Replacement”), and the Company shall take all necessary action to implement the foregoing as promptly as practicable (but practicable, and in no event later than 10 daystwenty (20) calendar days after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director designation of the replacement by IVA. Any such Replacement who becomes a Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, member in replacement of an “Independent Director”).
(c) The Villere IVA Designee shall be offered the opportunity deemed to become a member be an IVA Designee for all purposes under this Agreement and, prior to one or more standing committees of the Board for which such Villere Designee’s skills qualify him his or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member shall be required to (1) execute and deliver to the Company the IVA Designee Nomination Documents and (2) otherwise satisfy the evaluation procedures of the Board, and any subsequent nomination for election as a director Nominating Committee in accordance with the practices of the Company at any Annual Meeting, each of Villere Nominating Committee and the Villere Designee shall provideBoard. If IVA designates a Replacement as contemplated by this Section 1(e), fully IVA acknowledges and completely, information agrees that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria all provisions of this Agreement applicable to directors or satisfying compliance IVA shall remain in full force and legal obligations)effect.
(f) The Villere DesigneeNotwithstanding the foregoing Sections 1(a) through 1(e), if at all times while serving any time after the date of this Agreement (A) IVA, together with the IVA Affiliates (as a member defined below), ceases collectively to beneficially own or have other ownership interest in aggregate Net Long Positions of at least ten percent (10%) of the Boardoutstanding shares of Common Stock, or (B) IVA or the IVA Designee materially breaches any obligation under this Agreement and fails to cure such breach (to the extent it is curable) within ten (10) business days after receipt by IVA of written notice from the Company specifying any such breach then, in the case of (A) or (B), (x) the IVA Designee Resignation shall become immediately effective, and (iy) meet all director independence the Company shall have no further obligations under this Section 1 or Section 2(b). In furtherance of this Section 1(f), the IVA Designee shall have, prior to the date of this Agreement, executed and other standards delivered the IVA Designee Resignation to the Company. IVA shall keep the Company regularly apprised of its (and the IVA Affiliates’) ownership position in respect of the CompanyCommon Stock (including Net Long Positions) to the extent such positions differ materially from the ownership positions publicly reported on IVA’s Schedule 13D (including amendments thereto). For purposes of this Agreement, NASDAQ and the term “Affiliate” shall have the meaning set forth in Rule 12b-2 promulgated by the Securities and Exchange Commission (the “SEC”) and applicable provisions of under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director ; provided that “Affiliate” shall not include any entity whose equity securities are registered under the General and Business Corporations Law of Missouri Exchange Act (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations are publicly traded in a foreign jurisdiction), solely by reason of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as fact that a director principal of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added IVA serves as a member of its board of directors or similar governing body, unless IVA otherwise controls such entity (as the Board (it being understood that, term “control” is defined in Rule 12b-2 promulgated by the event that SEC under the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the BoardExchange Act), and (B) in the event of an Appointment Refusalterm “Persons” or “Person” shall mean any individual, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request corporation (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Directornot-for-profit), general or that could be material to a reasonable shareholder’s understanding limited partnership, limited liability or unlimited liability company, joint venture, estate, trust, association, organization or other entity of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letterany kind or nature.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 2 contracts
Samples: Support Agreement (Devry Education Group Inc.), Support Agreement (International Value Advisers, LLC)
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as followsEach Party agrees that:
(a) The As promptly as practicable after the execution and delivery of this Agreement, the Board shall increase the size of Directors of the Company’s board of directors Company (the “Board”) to will appoint the Villere Designee Xx. Xxxxxx Xxxxxx to the Board to serve as a director until the Annual Meeting of the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the class of directors whose terms expire in 2017 (the “2017 Class”) and include Xx. Xxxxxx as a nominee to the 2017 Class on the slate of directors to be elected at the annual meeting of stockholders of the Company at any to be held in 2016 (the “2016 Annual Meeting”). Xx. Xxxxxx shall be referred to herein as the “New Nominee”. The Investor acknowledges that within ten calendar days of the date of execution of this Agreement, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that a Form 3 is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection filed with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the U.S. Securities and Exchange Commission (the “SEC”) via XXXXX for the New Nominee in connection with the appointment of the New Nominee to the Board. With respect to Form 4 filings, the Company will make such filings for the New Nominee consistent with its practice with respect to the other directors.
(b) Xx. Xxxxxx will be offered the opportunity to become a member of the Board’s Nominating and Governance Committee; provided, that the New Nominee, subject to satisfying the Company’s governance policies in effect as of the date hereof and as in effect from time to time (to the extent any changes in the Company’s governance policies are not, and could not reasonably be construed to have been, implemented for the purpose of removing the New Nominee from a committee) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), law and the rules and regulations promulgated thereunderof the New York Stock Exchange (or any other securities exchange on which the Company’s securities are then traded) as in effect from time to time, including Rule 10A-3shall continue to have the right to serve on such committee for so long as he serves on the Board. The Investor acknowledges that if the Board determines in its good faith judgment that the New Nominee no longer satisfies the Company’s governance policies, applicable law or the rules and regulations of the New York Stock Exchange (or any other securities exchange on which the Company’s securities are then traded), as in effect from time to time, the Board shall have the discretion to remove the New Nominee from any committee of the Board on which the New Nominee is then serving, so long as (i) the treatment of the New Nominee is not inconsistent with the treatment of the other directors and (ii) any changes in the Company’s governance policies are not, and could not reasonably be qualified construed to serve as have been, implemented for the purpose of removing the New Nominee from a director under committee.
(c) The Investor shall, and shall cause its Affiliates to, immediately cease all communication efforts, direct or indirect, in furtherance of any potential efforts to influence the General management and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations policies of the Villere Designee Company.
(d) Prior to the Companyexecution of this Agreement, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action Ms. Xxxxxxxx Xxxxx shall have delivered her unconditional resignation from her current position as a director of the Company to the Company, and (y) those that otherwise compete which resignation shall be effective immediately upon the execution of this Agreement. Prior to or concurrently with the interests execution of this Agreement, the Company (including serving has accepted the resignation of Xx. Xxxxx from such position as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of director on the businesses carried on by Board. During the Company) (the preceding clauses (i) through (iii)Standstill Period, the “Conditions”). The Villere Designee Board will promptly advise both not increase the size of the Board and will not permit Section IV.E of the Nominating and Company’s Corporate Governance Committee of the Board in writing if he or she ceases Guidelines to satisfy any of the Conditionsbe amended.
(ge) The Villere Designee Board will exercise its reasonable best efforts, including the solicitation of proxies, to elect Xx. Xxxxxx at the 2016 Annual Meeting (it being understood that such efforts shall provide to not be less than the efforts used by the Company an executed irrevocable resignation to obtain the election of any other director nominee nominated to serve as director in on the form attached hereto as Exhibit “A” (Board of the “Director Resignation Letter”2016 Annual Meeting).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere If the New Nominee resigns or is otherwise terminates or ceases unable to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long serve as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election director (other than as a result of not being nominated removal, or the failure to be elected at the 2016 Annual Meeting by the Company for an annual meeting stockholders of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”Company), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, Company and the Company Investor shall cause such nominee to be added as select a member of the Board (it being understood thatreplacement director, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably mutually acceptable to the Board); providedCompany and the Investor, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) which acceptance shall not entitle Villere be unreasonably withheld.
(g) If the Investor materially breaches its commitments or obligations under this Agreement, upon written notice from the Company (specifying the relevant facts), the Investor agrees to an additional designee on cause Xx. Xxxxxx (or his replacement director selected pursuant to Section 1(f)) to resign promptly from the Board and the provisions of Sections 1(a), 1(b) and 1(e) – 1(f) shall only apply (1) when terminate with respect to Xx. Xxxxxx, except that if such material breach can be cured and if is cured within the previous Viller Designee has resigned, been removed or provided irrevocable time period set forth in the immediately following sentence. The Investor shall have fifteen business days after the date of such written notice of his or her intent not within which to stand for election or appointment, as applicable, (2) the replacement contemplated by cure its material breach and this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i1(g) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Lettersuch cure.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 2 contracts
Samples: Director Nomination Agreement (Cove Street Capital, LLC), Director Nomination Agreement (Forestar Group Inc.)
Board Representation and Board Matters. (a) The Company, Villere Company and the Villere Designee AB Value agree as follows:
(ai) The Board upon the execution of this Agreement, AB Value shall increase (A) irrevocably withdraw its nominations and proposal referred to above with respect to the size 2019 Annual Meeting, and any and all related materials and notices submitted to the Company in connection therewith, and (B) withdraw its demand for books and records and other materials pursuant to Section 220 of the Company’s board General Corporation Law of directors the State of Delaware (the “BoardDGCL”) or otherwise and agrees, during the Standstill Period (as defined herein), to appoint the Villere Designee to the Board to serve as a director until the Annual Meeting abstain from making any such demands of the Company shareholders or pursue any litigation related thereto against the Company, or to encourage, assist or cooperate with any person with respect to any such demands or litigation;
(the “Annual Meeting”ii) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 three (3) business days) after following the date hereof. The Company agrees execution of this Agreement, the Board shall (A) subject to hold the 2015 Annual Meeting no later than July 31provision of Section 1(a)(viii), 2015.
take such action to increase the size of the Board to nominate and accommodate the successful election of Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxxxx, each a director candidate identified by AB Value (b) The Company has determined that each, an “AB Value Director” and together, the Villere Designee would constitute an independent “AB Value Directors”), for election as a director of the Board under Company at the applicable The NASDAQ Stock Market 2019 Annual Meeting, each with a term expiring at the Company’s 2020 annual meeting of stockholders (the “NASDAQ”) independence rules (any such director, an “Independent Director2020 Annual Meeting”)., provided, that the Company will use its best efforts to cause the election of the AB Value Directors at the 2019 Annual Meeting (including, but not limited to, soliciting on behalf of the AB Value Directors and recommending that the Company’s stockholders vote in favor of the election of the AB Value Directors) and otherwise support such AB Value Directors for election in a manner no less rigorous and favorable than the manner in which the Company supports, and has historically supported, its other nominees in the aggregate, and (B) take any other action necessary to nominate and elect the AB Value Directors to the Board;
(ciii) The Villere Designee shall be offered if during the opportunity to become a member to one Standstill Period (as defined below), (A) Xx. Xxxxxxxx resigns, or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, (B) either AB Value Director is unable to serve on the committee Board for any reason, AB Value shall be entitled to identify a replacement AB Value Director who qualifies as an independent director under Rule 5605 of the Nasdaq Listing Rules (the “Applicable Criteria”) (any such director appointed to the Board establishes pursuant in connection with such replacement right, a “Replacement Director”) who is reasonably acceptable to Section 1(d) below to oversee the review Nominating Committee of the Company’s business strategies Board and strategic alternativesthe full Board (acting in good faith in accordance with their customary and generally applicable procedures for evaluating director candidates, and subject to providing the items and information set forth in Section 1(b) of this Agreement), and such Replacement Director shall be appointed to the Board; provided(it being understood, that, notwithstanding the foregoing and for the avoidance of doubt, that such Replacement Director shall thereafter be deemed an “AB Value Director” for the Villere Designee shall not purposes of this Agreement and be entitled to the same rights and subject to the same requirements under this Agreement applicable to the replaced director prior to his or her ceasing to be a director, and such person shall be appointed to the Board to serve on a committee the unexpired term, if he or she any, of such replaced director);
(iv) from the Effective Date until the 2019 Annual Meeting, the AB Value Directors shall have (A) does not meet the independence or other requirements right to (1) attend, but in no way participate in, all Board meetings, (2) receive the same materials distributed to members of applicable law the Board at the same time and in the rules same manner such materials are distributed to members of the Board in connection with such Board meetings, and regulations (3) receive notice of NASDAQ (or other securities exchange on which all Board meetings at the Company’s securities may then be traded) for service on same time and in the same manner such committee or notice is provided to members of the Board, and (B) is subject one (1) session attended by the Chief Executive Officer of the Company (the “CEO”), in which the CEO shall inform the AB Value Directors of the then-present material circumstances of the Company and answer all reasonable questions posed by the AB Value Directors to conflicts the CEO related thereto; provided, however, that no AB Value Director shall have any additional formal access to the Board, management or information of interest relevant the Company until after the 2019 Annual Meeting;
(v) immediately following the election of each AB Value Director to such committee’s activitiesthe Board at the 2019 Annual Meeting, the Board shall take the necessary steps to appoint (A) each AB Value Director to the Audit Committee of the Board, and (B) Xx. Xxxxxxxx to the Nominating Committee of the Board, in each case, subject to their qualifications to serve on such committees under the Nasdaq Listing Rules and the applicable SEC rules and regulations, and the AB Value Directors shall serve on such respective Board committees, and any related or created sub-committees, for so long as determined the AB Value Directors serve as directors of the Board; provided, that during the Standstill Period each of the AB Value Directors shall be considered by the Board for Board committee appointment to any Board committee established as of the Effective Date on which such respective AB Value Director will not be appointed pursuant to the terms of this Agreement;
(vi) if during the Standstill Period, the Board establishes any new committee that was not established as of the date immediately prior to the Effective Date to the knowledge of AB Value (such newly formed committee, including any sub-committee of such newly formed committee, a “New Committee”), then each of the AB Value Directors shall be appointed to any such New Committee immediately upon the formation of any such New Committee and serve on any such New Committee so long as the AB Value Directors serve as directors on the Board;
(vii) immediately following the election of each AB Value Director at the 2019 Annual Meeting, each AB Value Director shall serve as an observer on any and all such committees on which such respective AB Value Director is not appointed (each, a “Committee Observer”) and shall each serve as such until the one (1) year anniversary of such Committee Observer’s appointment as such. No Committee Observer shall have the right to vote on any matter presented to the applicable committee but shall have the right to (A) receive the same materials distributed to members of the committee at the same time and in good faiththe same manner such materials are distributed to members of the committee, (B) receive notice of all meetings of the committee at the same time and in the same manner such notice is provided to members of the committee, (C) otherwise fully participate in meetings and discussions of the committee (whether in person or by telephone), except for the right to vote, and (D) receive from the Company reimbursement of reasonable out-of-pocket expenses, costs and fees in connection with the Committee Observer’s attendance at meetings of such committee;
(viii) the Company agrees that, from the Effective Date until the end of the Standstill Period, it shall not increase the size of the Board to more than seven (7) directors; and
(ix) provided that Xx. Xxxxxx has not previously resigned from the Board, the Company agrees to nominate each of the AB Value Directors for election at the 2020 Annual Meeting and will use its reasonable best efforts to cause the election of each of the AB Value Directors at the 2020 Annual Meeting (including soliciting on his or her behalf and recommending that the Company’s stockholders vote in favor of the election of the AB Value Directors) and otherwise support him or her for election in a manner no less rigorous and favorable than the manner in which the Company supports, and has historically supported, its other nominees in the aggregate.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(eb) As a condition to the Villere Designeeeach AB Value Director’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any the 2019 Annual Meeting and 2020 Annual Meeting, each of Villere and AB Value Director shall (i) meet the Villere Designee shall provideApplicable Criteria, fully and completely, information that (ii) have provided to the Company reasonably requests a completed and executed reasonable D&O questionnaire (including information substantially in the form completed by the Company’s incumbent, non-management directors and in the form previously provided to AB Value by the Company), and (iii) an executed consent from each of the AB Value Directors to be named as a nominee in the Company’s proxy statement and to serve as a director if so elected; provided, however, that is no such consent shall be required to be delivered prior to the Effective Date. As a further condition to the AB Value Directors’ nomination for election as directors of the Company at the 2019 Annual Meeting and 2020 Annual Meeting, each AB Value Director shall, as promptly as practicable upon request of the Company, provide (i) any information required to be or customarily disclosed for all applicable directors and candidates for directors in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and (ii) information in connection with assessing eligibility, independence and other criteria applicable to all directors or satisfying compliance and legal obligationsobligations applicable to all directors, and (iii) such other information as reasonably requested by the Company from time to time with respect to AB Value or the AB Value Directors as required to be provided under the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws (together, the “Company Bylaws”).
(fc) The Villere DesigneeEach party acknowledges that the AB Value Directors will, at all times while serving as a member of the Board, shall (i) meet comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members, including the Company’s Code of Conduct, securities trading policies, anti-hedging policies, Regulation FD-related policies, director independence confidentiality policies and other standards of the Companycorporate governance policies (each, NASDAQ and the Securities and Exchange Commission (the a “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “ConditionsPolicy”). The Villere Designee Company agrees that it will promptly advise both not amend any Policy or the Company Bylaws for the purpose of disqualifying an AB Value Director from service on the Board, or any committee thereof or take any other similar action to frustrate the purpose of this Agreement; provided, however, that the Company may amend the Company Bylaws to provide stockholders proxy access and such an amendment shall not, for the purposes of this Agreement, constitute an amendment made for the purpose of disqualifying any AB Value Director or frustrating the purpose of this Agreement. The Company agrees to indemnify, compensate and reimburse the AB Value Directors in the same manner as other directors are indemnified, compensated and reimbursed in connection with their service on the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditionscommittee thereof.
(gd) The Villere Designee shall provide AB Value acknowledges that the U.S. securities laws generally prohibit any person who has received from an issuer material, non-public information concerning such issuer from purchasing or selling securities of such issuer or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell such securities. Notwithstanding anything to the contrary contained in this Agreement, the AB Value Directors may inquire of the Chief Financial Officer of the Company from time to time from the Effective Date until the 2019 Annual Meeting as to whether the Company believes that the AB Value Directors possess at such time any material, non-public information concerning the Company that has been provided to the AB Value Directors hereunder and/or whether the Company is at such time in an executed irrevocable resignation as director in open trading window for Company insiders with access to no more material, non-public information than that which has been provided to the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediatelyAB Value Directors hereunder, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept Chief Financial Officer or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director officer of the Company designated by such person shall respond to any such inquiry reasonably promptly (including as as an Independent Director), or that could be material and in any event no later than prior to a reasonable shareholder’s understanding the end of the qualifications and/or independence of such proposed nomineenext business day in Durango, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation LetterColorado).
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 2 contracts
Samples: Cooperation Agreement (AB Value Management LLC), Cooperation Agreement (Rocky Mountain Chocolate Factory, Inc.)
Board Representation and Board Matters. (a) The Company, Villere Company and the Villere Designee Icahn Group agree as follows:
(ai) The Board shall increase the size As of the Company’s board date of directors this Agreement, the Board of Directors of the Company (the “Board”) to appoint the Villere Designee to the Board to serve as a director until the Annual Meeting consists of the Company shareholders eleven (the “Annual Meeting”11) held in the year 2015 directors, including Xxxxxx X. Xxxxx, Xxxxx Xxxxxxxxxxxx, Xxxx Xxxxxx and Xxxxxx Xxxx (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such directoreach, an “Independent DirectorIcahn Designee” and, collectively, the “Icahn Designees”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(eii) As a condition to the Villere Designee’s Icahn Designees’ (and any Replacement Designees’) appointment to the Board, continuing service as a member of the Board, Board and any subsequent nomination for election as a director of election, the Company at any Annual Meeting, Icahn Designees each of Villere agree (and the Villere Designee shall provideIcahn Group agrees to cause the Icahn Designees and any Replacement Designees) to provide to the Company, fully prior to any such nomination and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, appointment and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at all times on an on-going basis while serving as a member of the Board, shall (i) meet all director independence such information and materials as the Company routinely receives from other standards members of the Board or as is required to be disclosed in proxy statements under applicable law or as is otherwise reasonably requested by the Company from time-to-time from all members of the Board in connection with the Company’s legal, NASDAQ and regulatory, auditor or stock exchange requirements, including, but not limited to, a completed D&O Questionnaire in the Securities and Exchange Commission form separately provided by the Company to the Icahn Group (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange ActNomination Documents”), and . The Icahn Designees are expected to deliver the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under Nomination Documents for the General and Business Corporations Law 2024 annual meeting of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests stockholders of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions2024 Annual Meeting”). The Villere Designee will promptly advise both ) in the Board and ordinary course at the Nominating and Corporate Governance Committee of same time as the Board in writing if he or she ceases to satisfy any of other nominees for election at the Conditions2024 Annual Meeting.
(giii) The Villere Subject to Section 1(c), should any Icahn Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board andor be rendered unable to, if requested or refuse to, be appointed to, or for any other reason fail to serve or is not serving, on the Board (other than as a result of not being nominated by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) Company for election at least 8.1% an annual meeting of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior stockholders subsequent to the termination of 2024 Annual Meeting in circumstances where no such obligation to nominate under this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so exists), as long as Villere the Icahn Group has not materially breached this Agreement (and, to the extent curable, and failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board or as a nominee for election at an annual meeting of stockholders of the Company, as applicable, a replacement designated by the Icahn Group that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (it being understood thatan “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere Icahn Group shall be entitled to designate another new continue designating a recommended replacement until such proposed designee is an Acceptable Person) (a “Replacement Designee”); provided, however, that it is understood and agreed that any employee of any member of the Icahn Group may be a Replacement Designee for Xx. Xxxx. Any such Replacement Designee who becomes a Board member until in replacement of any Icahn Designee shall be deemed to be an Icahn Designee for all purposes under this Agreement and, in the case of a new Villere Replacement Designee is for a member of the Icahn Group, as a condition to being appointed to the Board), shall be required to sign a customary joinder to this Agreement. All references to Icahn Designees shall be deemed to include any Replacement Designees to the extent applicable.
(iv) For the avoidance of doubt, the Board’s approval of a Replacement Designee pursuant to Section 1(a)(iii) shall not be considered unreasonably withheld if such replacement does not: (A) qualify as “independent” pursuant to the requirements under the New York Stock Exchange, (B) have the relevant financial and business experience to be a director of the Company, and (BC) satisfy the requirements set forth in the event Company Policies (as defined below), in each case as in effect as of an Appointment Refusalthe date of this Agreement or such additional or amended guidelines and policies approved by the Board that are applicable to all directors of the Company (collectively clauses (A) through (C), Villere shall the “Director Criteria”); provided that (i) no new Director Criteria will be entitled to designate a new candidate adopted that would qualify have prevented the Icahn Designees from becoming directors had such criteria been in effect today, and (ii) the Company acknowledges that Messrs. Xxxxx, Xxxxxxxxxxxx, Xxxxxx and Teno each satisfy the requirements of Section 1(a)(iv)(B) and Section 1(a)(iv)(C).
(v) Notwithstanding anything to the contrary herein, so long as an Independent Director for appointment the Icahn Group retains the right to nominate the Icahn Designees or electionany Replacement Designee, as applicable, in each case that is reasonably consented subject to by Section 1(c), without the Boardapproval of a majority of the Icahn Designees, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on increase the size of the Board and shall only apply above eleven (111) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letterdirectors.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 2 contracts
Samples: Cooperation Agreement (Centuri Holdings, Inc.), Cooperation Agreement (Southwest Gas Holdings, Inc.)
Board Representation and Board Matters. (a) The Company, Villere Company and the Villere Designee Icahn Group agree as follows:
(ai) The Board On or prior to the date of this Agreement, the Company shall take or shall have taken all necessary action to increase the size of the Company’s board Board of directors Directors of the Company (the “Board”) by one (1) seat to fourteen (14), and to appoint Xxxxx Xxxxx (the Villere Designee “Independent Director”) to fill the Board to serve resulting vacancy, effective as soon as practicable after the date of this Agreement, with a director until term expiring at the Annual Meeting 2022 annual meeting of stockholders of the Company shareholders (the “2022 Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(eii) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere the Icahn Group has not materially breached this Agreement (and, to the extent curable, and failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach, the Company agrees that the Company’s slate of nominees for election to the Board at the 2022 Annual Meeting will consist of no more than fourteen (14) individuals (collectively, the “2022 IFF Slate”) and will include, subject to his willingness and consent to serve, the Independent Director.
(iii) The Company shall use reasonable best efforts to cause the election of the Independent Director at the 2022 Annual Meeting (including by (x) recommending that the Company’s stockholders vote in favor of the election of the Independent Director, (y) including the Independent Director in the Company’s proxy statement and proxy card for the 2022 Annual Meeting, and (z) otherwise supporting the Independent Director for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate). The Icahn Group agrees not to conduct a proxy contest or engage in any solicitation of proxies regarding any matter, including the election of directors, with respect to the 2022 Annual Meeting.
(iv) That as a condition to the Independent Director’s (and any replacement Independent Director’s) appointment to the Board and subsequent nomination for election, the Independent Director will provide to the Company, prior to nomination and appointment and on an on-going basis while serving as a member of the Board, such information and materials as the Company routinely receives from other members of the Board or as is required to be disclosed in proxy statements under applicable law or as is otherwise reasonably requested by the Company from time-to-time from all members of the Board in connection with the Company’s legal, regulatory, auditor or stock exchange requirements, including, but not limited to, a completed D&O Questionnaire in the form separately provided by the Company to the Icahn Group (the “Nomination Documents”).
(v) That, subject to Section 1(c) below, should the Villere Designee (x) Independent Director resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand be appointed to, or for appointment any other reason fail to serve or election is not serving, on the Board (other than as a result of not being nominated by the Company for election at an annual meeting of shareholders stockholders subsequent to the 2015 2022 Annual Meeting, following which the Icahn Group’s replacement rights pursuant to this Section 1(a)(v) shall terminate), as long as the Icahn Group has not materially breached this Agreement and failed to cure such breach within five (5) business days of written notice from the Company specifying any such eventbreach, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in or as a nominee on the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election2022 IFF Slate, as applicable, in each case a replacement independent director that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably mutually acceptable to the Board); providedBoard and the Icahn Group, that, for who will then be deemed to be the Independent Director hereunder.
(vi) For the avoidance of doubt and notwithstanding anything herein doubt, the Board’s approval of a replacement director pursuant to Section 1(a)(v) shall require that such replacement does: (A) qualify as “independent” pursuant to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on independence requirements of the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicableNew York Stock Exchange, (2B) have the replacement contemplated by this Section 1(i) has delivered relevant financial and business experience to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company, (C) satisfy the requirements set forth in the Company Policies (including as as an Independent Directordefined below), or that could be material to a reasonable shareholder’s understanding in each case as in effect as of the qualifications and/or independence date of this Agreement or such proposed nominee, additional or amended guidelines and (y) an executed Director Resignation Letter; provided, further, policies approved by the Board that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant are applicable to clause (iii) all directors of the Company, (collectively clauses (A) through (C), the “Director Resignation Letter.
(j) The Company hereby agrees Criteria”); provided that (i) no new Director Criteria will be adopted that would have prevented the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely Independent Director from becoming a director had such criteria been in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”)effect today, which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company acknowledges that the Independent Director satisfies the requirements of Section 1(a)(vi)(B).
(vii) That (1) for any annual meeting of stockholders subsequent to the 2022 Annual Meeting during the term of this Agreement, the Company shall notify the Icahn Group in writing no less than thirty-five (35) calendar days before the advance notice deadline set forth in the Company’s Bylaws whether the Independent Director will execute be nominated by the Company for election as a director at such annual meeting and, (2) if the Independent Director is to be so nominated, shall use reasonable best efforts to cause the election of the Independent Director so nominated by the Company (including by (x) recommending that the Company’s stockholders vote in favor of the election of the Independent Director, (y) including the Independent Director in the Company’s proxy statement and deliver proxy card for such annual meeting and (z) otherwise supporting the Independent Director for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate), and the Icahn Group agrees not to conduct a proxy contest or engage in any solicitation of proxies regarding any matter, including the election of directors, with respect to any such annual meeting at which the Company has nominated the Independent Director and the Independent Director has consented to being named, and is named, in the proxy statement relating to such annual meeting.
(viii) That as of the date of this Agreement, the Company represents and warrants that, (y) prior to the Board appointing the Independent Director as a director, the Board is composed of thirteen (13) directors and that there are no vacancies on the Board, and (z) immediately after the Board appoints the Independent Director as a director, the Board will be composed of fourteen (14) directors and that there will be no vacancies on the Board.
(ix) That from and after the date of this Agreement, so long as the Independent Director is a member of the Board, any Board consideration of appointment and employment of the Company’s chief executive officer and chief financial officer, mergers and acquisitions of material assets, or dispositions of material assets, or similar extraordinary transactions, such consideration, and voting with respect thereto shall take place only at the full Board level or in committees of which the Independent Director is a member.
(x) Concurrently with the appointment to the Board pursuant to Section 1(a)(i) and subject to compliance with all stock exchange rules, the Board will consider appropriate appointments for the Independent Director to applicable Board committees as they would consider such appointments for other Board candidates. Notwithstanding the foregoing, the Company acknowledges that for so long as the Independent Director is a member of the Board, the Independent Director shall have the same rights as any other director with respect to being permitted to attend (as an observer and without voting rights) any committee meeting regardless of whether the Independent Director is a member of such committee, except in cases where privileged matters will be discussed or reviewed (unless the Independent Director commits, in writing, on terms reasonably satisfactory to the Company, not to share information relating to such matters with the Icahn Group, including its Affiliates, Associates and representatives), where the matters under consideration involve an actual conflict of interest between the Company and the Icahn Group or its Affiliates or Associates, or where, upon advice of outside counsel to the Company, the Independent Director’s attendance would jeopardize any legal privilege.
(b) At all times from the date of this Agreement through the termination of his service as a member of the Board, the Independent Director will need to comply with all written policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee Board members, including the Corporate Governance Guidelines, Code of Conduct, Code of Conduct for Directors, Xxxxxxx Xxxxxxx Policy, Window Period Policy for the Purchase and Sale of Company Securities, Section 16 and Rule 144 Reporting Obligations Policy, Regulation FD Policy, Rule 10(b)(5) Guidelines, Share Retention Policy, and Related Person Transactions Policy (collectively, the “Company Policies”), and shall preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees (except to the extent permitted in the Confidentiality Agreement (as defined below) to Villere as promptly as be entered into pursuant to Section 5 of this Agreement). For the avoidance of doubt, the Parties agree that notwithstanding the terms of any Company Policies, in no event shall any Company Policy apply to the Icahn Group. The Icahn Group confirms that the Independent Director is reasonably practicable following execution not employed by or a consultant of, and delivery thereof is not otherwise an Affiliate or Associate of, any member of the Icahn Group. The Icahn Group confirms that the Company may require the replacement of the Independent Director pursuant to Section 1(a)(v) if he or she becomes an employee, consultant, Affiliate or Associate of any member of the Icahn Group.
(c) The Icahn Group, upon request, shall keep the Company regularly apprised of the Net Long Position of the Icahn Group and the Icahn Affiliates to the extent that such position differs from the ownership positions publicly reported by the other signatories theretoIcahn Group in any public filing with the Securities and Exchange Commission (the “SEC”).
Appears in 1 contract
Samples: Cooperation Agreement (International Flavors & Fragrances Inc)
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows:
(a) The Board Shah Capital shall increase immediately cease all solicitation efforts in connection with the size of 2018 Annual Meeting. Shah Capital shall not file with the SEC, or mail or otherwise deliver to the Company’s board of directors (the “Board”) to appoint the Villere Designee to the Board to serve as a director until the Annual Meeting stockholders, any proxy statement or proxy card in respect of the Company shareholders (the “2018 Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that will, as promptly as practicable, take all action necessary to increase the Villere Designee would constitute an independent director size of the Board under by up to five directors to up to 15 directors such that there would be up to five vacancies on the applicable The NASDAQ Stock Market Board and appoint (i) pursuant to and in accordance with the Vintage Cooperation Agreement, Xxxxxx X. Xxxxxxx (the “NASDAQVintage Designee”) independence rules (any such director, an “Independent Director”).
(c) The Villere it being understood that the Vintage Designee shall will be offered appointed to the opportunity to become a member to one or more standing committees Board within five days of the Board for which such Villere Designee’s skills qualify him or her and, in addition, date of this Agreement); (ii) Xxxxxxxx Xxxx and Sing Wang (the “Shah Designees”) (it being understood that the Shah Designees will be appointed to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review within five days of the Company’s business strategies and strategic alternativesdate of this Agreement); provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee (iii) one independent director (who shall not be entitled a current employee of, and shall not have been an employee (within one year prior to serve on a committee if he the date of being designated hereunder) of, Vintage Capital or she Shah Capital or any of their Affiliates (Acollectively, the “Applicable Criteria”)) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then to be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined proposed by the Board in good faith.
Company and reasonably acceptable to Shah Capital and Vintage Capital (dthe “Company Designee”) At its next Board meeting, (it being understood that the Board Company Designee will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations be appointed to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member within five business days of the Board, and any subsequent nomination for election as a director later of the Company at any Annual Meeting, each agreement of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified such person to serve as a director under and such person being determined to be acceptable); and (iv) one independent director who shall satisfy the General Applicable Criteria and Business Corporations Law of Missouri shall be mutually acceptable to Vintage Capital, Shah Capital and the Company (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict Independent Designee” and, together with the responsibilities Vintage Designee, the Shah Designees and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii)Designee, the “ConditionsNew Directors”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
) (g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall the Independent Designee will be in appointed to the Board’s sole discretion whether Board within five business days of the later of the agreement of such person to accept serve as a director and such person being determined to be acceptable) to fill the five newly created vacancies. If, despite the parties’ good faith efforts to identify the Company Designee or reject the Independent Designee, either such resignation if: (i) Villere ceases director has not been identified and approved prior to beneficially own (as defined below) at least 8.1% the filing of the Company’s outstanding Common Stock; (ii) definitive proxy statement for the Villere Designee ceases to satisfy any of 2018 Annual Meeting, such director shall be appointed immediately following the conditions set forth 2018 Annual Meeting or as promptly as practicable thereafter once such director is identified and approved in clause (e) and any of the Conditions good faith in clause (f) above; (iii) Villere otherwise terminates or ceases to comply accordance with or breaches any of the terms of this Agreement.
(c) Notwithstanding Section 1(b), the Board, following the appointment of the Vintage Designee and the Shah Designees, will consider not appointing the Company Designee and/or the Independent Designee. If the Board makes such a determination, the term New Directors shall include only the Vintage Designee and the Shah Designees and all references to the size of the Board and the number of directors in this Agreement shall be reduced by up to two directors, as applicable.
(d) Subject to the exception in the last sentence of Section 1(b) regarding the Company Designee and the Independent Designee, the Company’s slate of nominees for election as directors of the Company at the 2018 Annual Meeting and the Company’s 2019 annual meeting of stockholders (the “2019 Annual Meeting”) shall include the New Directors (or any respective Replacements thereof). The Company will use reasonable best efforts to cause the election of the New Directors (or any respective Replacements thereof) to the Board at the 2018 Annual Meeting and 2019 Annual Meeting (including, in each case, recommending that the Company’s stockholders vote in favor of the election of the New Directors (or any respective Replacements thereof) (along with all of the Company’s other nominees) and otherwise supporting the New Directors (and any respective Replacements thereof) for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees). At the 2018 Annual Meeting, the only matters to appear on the agenda of the meeting will be: (1) the election of directors; (2) an advisory and non-binding vote to approve named executive officer compensation; (3) the approval of the Company’s 2018 Long-Term Incentive Plan; (4) the amendment and restatement of the Company’s 2010 Employee Stock Purchase Plan; and (5) the ratification of the appointment of Deloitte & Touche LLP as independent registered public accounting firm of the Company.
(e) Upon the resignation of Xxxxx Xxxxx, the current Chief Executive Officer of the Company, the Company shall cause Xx. Xxxxx to resign from the Board and all committees thereof, and the Company shall immediately reduce the size of the Board by one director. Upon the appointment of a successor Chief Executive Officer, the Company will increase the size of the Board by one director, and will appoint the successor Chief Executive Officer to the Board.
(f) The Company shall hold the 2018 Annual Meeting not later than June 30, 2018. At the 2018 Annual Meeting, four of the directors serving on the Board on the date hereof (other than the Chief Executive Officer or the New Directors) shall not be nominated for re-election as directors by the Company. After the 2018 Annual Meeting and prior to the completion of the 2019 Annual Meeting, the Board shall not increase the size of the Board to more than 11 directors.
(g) Should any Shah Designee resign from the Board or become unable to serve on the Board for any reason before the completion of the 2019 Annual Meeting, Shah Capital will have the right to appoint to the Board a replacement director (a “Replacement”) who shall meet the Applicable Criteria and be reasonably acceptable to the Board.
(h) Should either the Company Designee or the Independent Designee resign from the Board or become unable to serve on the Board for any reason before the completion of the 2019 Annual Meeting, Vintage Capital, Shah Capital and the Company shall mutually agree on a Replacement who shall meet the Applicable Criteria.
(i) Villere agrees The appointment of a Replacement will be subject to a customary due diligence process by the Board (including the review of a completed D&O questionnaire (in the Company’s standard form), interviews with members of the Board (if requested) and a customary background check). The Company will use its reasonable best efforts to cause complete its approval process as promptly as practicable and in any event within 10 business days following receipt of all necessary information and conclusion of interviews. Except as otherwise specified in this Agreement, upon the Villere Designee appointment to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to of a Replacement for any Shah Designee, all references in this clause (i). Prior Agreement to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(aterm “Shah Designee” will include such Replacement.
(j) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, Each New Director will be entitled to designate the same director benefits as other members of the Board, including (i) compensation for his or her service as a new Board member that would qualify director and reimbursement for his or her expenses on the same basis as an Independent Director all other non-employee directors of Company; (ii) equity-based compensation grants and is reasonably consented other benefits, if any, on the same basis as all other non-employee directors of Company; and (iii) the same rights of indemnification and directors’ and officers’ liability insurance coverage as the other non-employee directors of Company as such rights may exist from time to time.
(k) Notwithstanding anything to the contrary in this Agreement, no New Director, during his or her service as a director of Company, will be prohibited from acting in his or her capacity as a director or from complying with his or her fiduciary duties as a director of Company (including voting on any matter submitted for consideration by the Board, participating in deliberations or discussions of the Board, and making suggestions or raising any issues or recommendations to the Company shall cause such nominee Board).
(l) Prior to the appointment of the New Directors, the Board will take all action necessary to determine that each New Director is deemed to be added as (i) a member of the “incumbent board” (or similar term) for purposes of the Company’s contracts and agreements; and (ii) a member of the Board as of the beginning of any applicable two-year measurement period for the purposes of any applicable “change of control” (it being understood that, or similar term) concept in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt contracts and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letteragreements.
(jm) The Company Effective immediately upon the execution of this Agreement, Vintage Capital and Shah Capital hereby agrees dissolve the 13D Group and shall promptly file an amendment to the Schedule 13D that (i) dissolves the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” 13D Group (the “Confidentiality AgreementDissolution 13D”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows:
(a) The Concurrently with the execution of this Agreement, the Company and the Board shall increase have (i) increased the size of the Company’s board of directors Board by one director and (ii) elected Xxxxx Xxxxxxxx (the “BoardShareholder Designee”) to appoint fill the Villere newly created vacancy. The Shareholder Designee to the Board to serve as shall become a director until the Annual Meeting of the Company shareholders effective immediately upon execution of this Agreement. The Shareholder Designee has previously executed and delivered to the Company (x) a completed director and officer questionnaire (the “Annual MeetingD&O Questionnaire”) held ), in the year 2015 form provided, (y) an executed letter in the form attached hereto as Exhibit A (the “2015 Annual MeetingNominee Letter”) and (z) an executed irrevocable resignation in the form attached hereto as Exhibit B (the “Resignation Letter” and together with the D&O Questionnaire and the Nominee Letter, the “Nomination Documents”). Based on the Nomination Documents delivered by the Shareholder Designee, the Company and the Board have determined that Xx. Xxxxxxxx qualifies as promptly as practicable (but in no event later than 10 days) after “independent” pursuant to the date hereof. The Company agrees to hold independence standards of the 2015 Annual Meeting no later than July 31, 2015New York Stock Exchange and SEC rules.
(b) The Subject to Shareholder’s and Shareholder Affiliates’ (as defined below) compliance with Section 2, the Company has determined that will include the Villere Shareholder Designee would constitute an independent director in its slate of nominees for election as directors of the Board under Company at the applicable The NASDAQ Stock Market Company’s 2018 annual meeting of shareholders (the “NASDAQ2018 Annual Meeting”) independence rules and, if the Shareholder Designee agrees to serve, at the 2019 annual meeting of shareholders of the Company (any such director, an the “Independent Director2019 Annual Meeting”).
(c) The Villere Designee shall be offered Subject to Shareholder’s and Shareholder Affiliates’ compliance with Section 2, the opportunity Company will use reasonable best efforts to become a member to one or more standing committees cause the election of the Shareholder Designee to the Board for which such Villere Designee’s skills qualify him or her at the 2018 Annual Meeting, and, if the Shareholder Designee agrees to serve, at the 2019 Annual Meeting (including, for each of the 2018 Annual Meeting and the 2019 Annual Meeting, recommending that the Company’s shareholders vote in addition, to serve on favor of the committee election of the Board establishes pursuant to Section 1(d) below to oversee the review Shareholder Designee (along with all of the Company’s business strategies nominees) and strategic alternatives; provided, that, notwithstanding otherwise supporting the foregoing Shareholder Designee for election in a manner no less rigorous and for favorable than the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on manner in which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faithCompany supports any other independent director nominee).
(d) At its next Board meetingImmediately following the execution of this Agreement, the Board and all applicable committees of the Board will form take all action necessary to appoint the Shareholder Designee as a committee member of not more than five directors to review the Nominating and evaluate Governance Committee of the Company’s business strategies Board. Following such appointment and strategic alternatives and make recommendations subject to the Board’s determination that the Shareholder Designee continues to qualify as “independent” pursuant to the applicable independence standards of the New York Stock Exchange and SEC rules, the Board with respect and the Company shall cause the Shareholder Designee to potential changes in strategy remain a member of the Nominating and strategic alternativesGovernance Committee at all times the Shareholder Designee serves as a member of the Board as contemplated by this Agreement.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at At all times while serving as a member of the Board, the Shareholder Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to non-management Board members, including the Code of Business Conduct and Ethics, securities trading policies, anti-hedging policies, Regulation FD-related policies, director confidentiality policies and corporate governance guidelines (i) meet all director independence and other standards of the Companycollectively, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange ActCompany Policies”), and preserve the rules confidentiality of Company business and regulations promulgated thereunderinformation, including Rule 10A-3discussions or matters considered in meetings of the Board or Board committees. Except as may otherwise be required by the SEC, stock exchange listing rules or applicable law, the Company agrees that (i) it will not amend any of the Company Policies in any manner for the purpose of disqualifying the Shareholder Designee and (ii) any changes to the Company Policies, or new Company Policies, will be qualified to serve as a director under adopted in good faith and not for the General and Business Corporations Law purpose of Missouri (the “GBCLM”) and (iii) not have any personal undermining or business interests or relationships that conflict with or may potentially conflict conflicting with the responsibilities and obligations arrangements contemplated by this Agreement. The Company has made available to the Shareholder Designee copies of the Villere Company Policies as in effect on the date of this Agreement.
(f) The Company agrees that the Shareholder Designee shall receive the same benefits of director and officer insurance and any indemnity and exculpation arrangements available generally to the Company’s directors. The Company will execute a director indemnification agreement in favor of the Shareholder Designee upon his or her appointment to the Board, including (x) in a form substantially the same as that executed in favor of the Board’s current members. The Shareholder Designee has waived any agreement, arrangement or understanding with any person other than the Company with respect right to any direct or indirect compensation, reimbursement or indemnification in connection with receive compensation for service or action as a director of the Company pursuant to the Company’s director compensation policy, including any stock or cash compensation.
(g) Should the Shareholder Designee be unable or unwilling to serve on the Board at any time, the Company shall, at the request of Shareholder, add as a member of the Board a qualified replacement that is selected by Shareholder and approved by the Board (by vote of the Disinterested Directors) (a “Replacement”), such approval not to be unreasonably withheld, delayed or conditioned. Any such Replacement who becomes a Board member in replacement of the Shareholder Designee shall be deemed to be the Shareholder Designee for all purposes under this Agreement, and (y) those that otherwise compete the Replacement, prior to his or her appointment to the Board, shall be required to provide to the Company equivalent Nomination Documents and meet with representatives of the Nominating and Governance Committee of the Board in accordance with the interests customary practices of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee. Subject to the Board’s determination that the Replacement qualifies as “independent” pursuant to the applicable independence standards of the New York Stock Exchange and SEC rules, the Company and the Board shall promptly take all necessary action to cause the election of any Replacement to the Board and the Nominating and Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”)Board.
(h) The Company’s obligations hereunder If at any time after the date hereof, Shareholder, together with all controlled Affiliates of the members of Shareholder (such controlled Affiliates, collectively and individually, the “Shareholder Affiliates”), ceases collectively to Beneficially Own the lesser of (x) an aggregate of at least 8% of the shares of Common Stock then outstanding and (y) an aggregate of 3,719,850 shares of Common Stock (the “Ownership Condition”), the Resignation Letter previously provided by the Shareholder Designee in the form of Exhibit B shall terminate immediatelybecome effective and the Board (by vote of the Disinterested Directors) shall have the option to accept such resignation in its sole discretion, and the Villere Designee Company shall promptly offer to resign from have no further obligations under this Section 1. During the Board andStandstill Period, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it Shareholder shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere notify the Company within five business days if it ceases to beneficially own (as defined below) at least 8.1% of satisfy the Company’s outstanding Common Stock; Ownership Condition, and (ii) prior to a Public Listing, promptly notify the Villere Designee ceases Company in writing if the Beneficial Ownership of Shareholder and the Shareholder Affiliates changes by 1% or more from the ownership positions previously reported to satisfy the Company in writing.
(i) If at any time after the date hereof, Shareholder or any of the conditions set forth Shareholder Affiliates breaches in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches material respect any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause , the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement Company in accordance with Section 16 below good faith notifies Shareholders or the Standstill Period in accordance with Section 2(a) applicable Shareholder Affiliates of such breach, and Shareholder or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed such Shareholder Affiliate fails to cure such breach within five (5) twenty business days following the receipt of written notice thereof from the Company specifying any such breach (it being understood that unintentional breaches of this Agreement that by their nature cannot be reversed or undone shall be deemed to have been cured for purposes hereof if Shareholder or a Shareholder Affiliate has taken commercially reasonable actions to reduce the adverse impact of such breach), should the Villere Resignation Letter previously provided by the Shareholder Designee (x) resign from the Board or for any other reason fail to continue serving on shall become effective and the Board (any by vote of the Disinterested Directors) shall have the option to accept such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) resignation in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Boardits sole discretion, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, have no further obligations under this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees promptly after the date hereof (and promptly following the appointment of any Replacement) shall take all necessary action to cause the obligations of its insurers providing directors’ and officers’ insurance to be primary to any (1) directors’ and officers’ insurance policy issued to Shareholder or a Shareholder Affiliate, and (2) advancement or indemnification rights provided by Shareholder or a Shareholder Affiliate. The Company promptly after the date hereof shall use its commercially reasonable efforts to amend such policies to clarify that such insurance is primary.
(ik) Shareholder acknowledges, on behalf of itself and the Villere Shareholder Affiliates, that the Shareholder Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms (or Replacement, as applicable) shall have all of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”)rights and obligations, which Villere and the Villere Designee agree to execute and deliver including fiduciary duties to the Company at and its shareholders, of a director under applicable law and the Company’s organizational documents while such time Villere decides to receive confidential information from Shareholder Designee (or Replacement, as applicable) is serving on the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories theretoBoard.
Appears in 1 contract
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as followsEach Party agrees that:
(a) The Board On or prior to the date hereof, the Company shall take all necessary action to (i) increase the size of the Company’s board Board by one director to ten directors and (ii) appoint the Designee to serve as a member of directors the Board in Class III for a term expiring at the annual meeting of stockholders of the Company to be held in 2020 (the “Board2020 Annual Meeting”). Subject to (1) the satisfactory completion of the Company’s standard director questionnaire and background check, (2) receipt of any other information required under the Company’s Corporate Governance Guidelines (which Corporate Governance Guidelines will not be unreasonably amended by the Company prior to appoint the Villere Designee 2020 Annual Meeting), otherwise reasonably required by the Company from all members of the Board or candidates for nomination to the Board or required to be disclosed in the Company’s proxy statement with respect to the 2020 Annual Meeting, (3) the Designee in good faith reaffirming his compliance with the Code of Conduct and Corporate Governance Guidelines, and (4) no Qualifying Disposition having occurred, the Company shall nominate the Designee for election as a director to the stockholders of the Company at the 2020 Annual Meeting for a term expiring at the annual meeting of the Company’s stockholders to be held in 2021 (the “2021 Annual Meeting”) and recommend, support and solicit stockholders accordingly in the same manner as for other independent director candidates nominated by the Company at the 2020 Annual Meeting. Board committee assignments are determined by the Nominating and Governance Committee of the Board in consultation with the Chairman of the Board and Chief Executive Officer, and the Designee will be considered for committee assignment in accordance with the usual practice of the Board; provided, that upon appointment to the Board, the Designee will be appointed to serve on the Nominating and Governance Committee and shall continue such appointment through the Lockup Period.
(b) If the Designee resigns or is otherwise unable to serve as a director until for any reason during the Annual Meeting Lockup Period, including failure to satisfy any of the Company shareholders (the “Annual Meeting”) held criteria set forth in the year 2015 (the “2015 Annual Meeting”second sentence of Section 1(a), the Investor shall select a replacement Designee, reasonably acceptable to the Company, acting in good faith. Any replacement Designee shall be expeditiously appointed following the Investor’s selection, subject to the Nominating and Governance Committee’s reasonable satisfaction, acting in good faith, with the results of its review of such candidate, including a background check and interview, as promptly well as practicable such candidate (but in no event later than 10 daysi) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director if a principal of the Board under Investor, agreeing to be bound by the terms of this Agreement applicable The NASDAQ Stock Market to the Designee, and if not a principal of the Investor, completing, to the reasonable satisfaction of the Company, all onboarding materials required to be completed by independent directors, (“NASDAQ”ii) independence rules (any such director, qualifying as an “Independent Director”)” within the meaning of Rule 5605(a)(2) of the Nasdaq Listing Rules, (iii) satisfying the Director Qualification Standards set forth in the Company’s Corporate Governance Guidelines and (iv) providing to the Company upon reasonable request such information as is required to be disclosed by SEC and/or Nasdaq rules and regulations in proxy statements for annual meetings of stockholders of the Company, under the Company’s Corporate Governance Guidelines or as is otherwise reasonably required by the Company from all members of the Board or candidates for nomination to the Board. Upon appointment to the Board, any replacement Designee shall be considered the “Designee” for all applicable purposes hereunder. In the event the Nominating and Governance Committee determines in good faith not to appoint any replacement proposed by the Investor, the Investor shall have the right to propose additional replacements for consideration, and the provisions of this Section 1(b) shall continue to apply.
(c) The Villere Investor agrees that neither it nor any of its Affiliates (i) will pay any compensation to the Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes (including any replacement director Designee selected pursuant to Section 1(d1(b)) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubtDesignee’s service as a director on the Board or any committee thereof or (ii) will have any agreement, arrangement or understanding, written or oral, with the Villere Designee shall not be entitled (including any replacement director Designee selected pursuant to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be tradedSection 1(b)) for the Designee’s service as a director on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faithor any committee thereof.
(d) At its next Board meetingIf a Qualifying Disposition occurs and the Designee is a principal of Investor, the Board will form a committee of not more than five directors to review and evaluate then, upon or immediately following the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member notice of the Boardoccurrence of such Qualifying Disposition, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that any replacement thereof who is required to be disclosed in also a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(fprincipal of Investor) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable tender his resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member relieved of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event all of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, its obligations under this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation LetterAgreement.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Board Representation and Board Matters. a) The Company, Villere Company and each member of the Villere Designee Shareholder Group agree as follows:
i. immediately after execution of this Agreement, the Board and all applicable committees thereof shall take all action necessary to (aA) The Board shall accept the resignation tendered by Xxxx X. Xxxxxxxxx as director, (B) increase the size of the Board such that there will be eleven (11) directors on the Board, (C) appoint Xxxxxx X. Xxxxx as a Class I director of the Company and member of the Compensation Committee of the Board and (D) appoint the TCS Designee as a Class III director of the Company and member of the Nominating and Corporate Governance Committee of the Board;
ii. the Board, based on information provided by the Shareholder Group and each Shareholder Designee, has determined that each Shareholder Designee would constitute an “independent” director and would be qualified to serve on the committee(s) of the Board to which he or she shall be appointed hereunder, under applicable NASDAQ listing standards, SEC rules, tax regulations or other applicable standards;
iii. the Board or any committee thereof, in the exercise of its fiduciary duties, may limit the participation of the Shareholder Designees in any Board or committee meeting or portion thereof in which the Board or such committee is evaluating and/or taking action with respect to (A) the exercise of any of the Company’s board rights or enforcement of directors any of the obligations under this Agreement, (B) any action taken in response to actions taken or proposed by the “Board”Shareholder Group or its Affiliates with respect to the Company, including actions relating to this Agreement, (C) any proposed transaction between the Company and the Shareholder Group or its Affiliates or (D) any consideration of any potential Replacement; provided, however, that nothing herein shall limit the participation of the TCS Designee in any Board or committee meeting or portion thereof in which the Board or such committee is evaluating and/or taking action with respect to appoint any strategic alternatives or proposed transactions to which no member of the Villere Shareholder Group is a party;
iv. no later than the date of this Agreement, the Shareholder Group will provide to the Company (A) a confidentiality agreement in the form attached hereto as Exhibit A, duly executed by each member of the Shareholder Group, (B) an executed consent from each Shareholder Designee to be named as a director in the Board Company’s proxy statement for the 2016 Annual Meeting and to serve as a director until in the Annual Meeting of form attached hereto as Exhibit B, (C) a director and officer questionnaire in the Company shareholders Company’s standard form previously provided to the Shareholder Group completed by each Shareholder Designee and (D) the Resignation (collectively, the “Annual Meeting”) held in the year 2015 (the “2015 Annual MeetingNomination Documents”), as promptly as practicable (but in no event later than 10 days) ;
v. after the date hereof, each Shareholder Designee shall provide to the Company, as requested by the Company from time to time, such information as the Company reasonably requests from other members of the Board;
vi. no member of the Shareholder Group shall compensate or agree to compensate, directly or indirectly, any individual in connection with his or her services as a director (including any Shareholder Designee or any mutually agreed upon independent director) or officer of the Company or otherwise in connection with the transactions contemplated by this Agreement; and
vii. during the Standstill Period, should any Shareholder Designee resign from the Board or be rendered unable to, or refuse to, be appointed to, or for any other reason fail to serve or is not serving on, or is removed from, the Board (other than as set forth in Section 2(b) hereof), the Shareholder Group shall be entitled to designate a replacement for such Shareholder Designee that (A) will qualify as “independent” and meet all other applicable Exchange Act, SEC and NASDAQ listing standards, tax regulations or other applicable standards, (B) has relevant business and financial experience to be a director of the Company and (C) is reasonably consented to by the Nominating and Corporate Governance Committee of the Board after exercising its fiduciary duty in good faith (such consent not to be unreasonably withheld) (a “Replacement”) and the Company shall take all necessary action to implement the foregoing. The Nominating and Corporate Governance Committee of the Board shall make its determination and recommendation regarding whether such person meets the foregoing criteria within ten (10) business days after (x) such nominee as a Replacement has submitted to the Company the Nomination Documents and (y) the representatives of the Board have conducted customary interviews of such nominee. The Company agrees shall use its reasonable best efforts to hold conduct any interviews contemplated by this Section 2(a)(vii) as promptly as practicable, but in any case, assuming reasonable availability of the 2015 Annual Meeting nominee, within ten (10) business days after the Shareholder Group’s submission of such nominee. In the event the Nominating and Corporate Governance Committee does not accept a person recommended by the Shareholder Group as a Replacement, the Shareholder Group shall have the right to recommend an additional substitute person whose appointment shall be subject to the Nominating and Corporate Governance Committee recommending such person in accordance with the procedures described above. Upon the recommendation of a Replacement nominee by the Nominating and Corporate Governance Committee, the Board shall vote on the appointment of such Replacement to the Board no later than July 31, 2015.
ten (b10) The Company has determined that business days after the Villere Designee would constitute an independent director Nominating and Corporate Governance Committee’s recommendation of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternativesReplacement; provided, thathowever, notwithstanding that if the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) Board does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on appoint such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations Replacement to the Board with respect pursuant to potential changes in strategy and strategic alternatives.
(ethis Section 2(a)(vii), the parties shall continue to follow the procedures of this Section 2(a)(vii) As until a condition Replacement is appointed to the Villere DesigneeBoard. Upon a Replacement’s appointment to the Board, continuing service the Board and all applicable committees thereof shall take all necessary actions to appoint such Replacement to any applicable committee of the Board of which the replaced Shareholder Designee was a member, subject only to such Replacement’s qualifications to serve on any such committee(s). Any such Replacement who becomes a Board member in replacement of any Shareholder Designee shall be deemed to be such Shareholder Designee for all purposes under this Agreement.
b) The TCS Designee (including, if applicable, any Replacement) shall, prior to his or her appointment to the Board, and each member of the Shareholder Group shall cause such TCS Designee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit C (the “Resignation”) and deliver it to the Company. If at any time after the date hereof, the Shareholder Group ceases collectively to be the beneficial owner of an aggregate Net Long Position in at least 2,930,000 shares (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) of Common Stock (the “Minimum Ownership Threshold”), (i) automatically without further action of the Shareholder Group or any Shareholder Designee, the Resignations shall be deemed to be tendered to and accepted by the Board, and the TCS Designee shall cease to be a member of the Board, and any subsequent nomination for election as a director of (ii) the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that have no further obligations under this Section 2. The Shareholder Group shall notify the Company reasonably requests in writing within five (including information that is required 5) business days after the Shareholder Group ceases collectively to be disclosed the beneficial owner of an aggregate Net Long Position in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations)the number of shares constituting the Minimum Ownership Threshold.
(fc) The Villere Designee, at At all times while serving as a member of the Board, each Shareholder Designee shall comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to Board members, including the Company’s code of business conduct and ethics, securities trading policies, anti-hedging policies, Regulation FD-related policies, director confidentiality policies and corporate governance guidelines and preserve the confidentiality of Company business and information, including discussions or matters considered in meetings of the Board or Board committees.
d) From and after the date of appointment of any Shareholder Designee until the earlier of (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal 2018 Annual Meeting or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere tenth (10th) day following the day on which no Shareholder Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue is serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by director on the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller form any new committee unless one Shareholder Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either who is serving as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides (to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof be determined by the other signatories theretoTCS Designee) is offered membership on such committee.
Appears in 1 contract
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows:
(a) The Nominating and Governance Committee of the Board shall increase (the size “Nominating Committee”) will recommend to the full Board, and the Board will include in the Company’s slate of nominees for election as a director of the Company at each of the Company’s board 2016 Annual Meeting of directors Stockholders (the “Board”) to appoint the Villere Designee to the Board to serve as a director until the Annual Meeting of the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 2016 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 2017 Annual Meeting no later than July 31of Stockholders (the “2017 Annual Meeting”) and 2018 Annual Meeting of Stockholders (the “2018 Annual Meeting” and, 2015collectively with the 2016 Annual Meeting and 2017 Annual Meeting, the “Designated Annual Meetings” and, each, a “Designated Annual Meeting”), the person identified on Schedule II hereto (the “BD Designee”).
(b) The Company has determined Board will (i) recommend that the Villere Designee would constitute an independent director stockholders of the Board under Company vote in favor of the applicable The NASDAQ Stock Market election of the BD Designee (“NASDAQ”along with all other Company nominees) independence rules at each Designated Annual Meeting, (any ii) solicit votes for the BD Designee’s election at each Designated Annual Meeting and (iii) otherwise support the BD Designee for election at each Designated Annual Meeting in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees for such director, an “Independent Director”)Designated Annual Meeting.
(c) The Villere Designee shall be offered the opportunity to become If a member to one or more standing committees of vacancy in the Board for which such Villere Designee’s skills qualify him or her and, in addition, shall occur prior to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt2016 Annual Meeting, the Villere Company will use commercially reasonable efforts to cause the BD Designee shall not to be entitled appointed to serve on a committee if he or she (A) does not meet fill such vacancy until the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith2016 Annual Meeting.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere BD Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any each Designated Annual Meeting (and, if applicable, appointment to the Board to fill a vacancy occurring prior to the 2016 Annual Meeting), each Black Diamond, including the BD Designee, will promptly upon the request of Villere the Nominating Committee from time to time and on or prior to date specified by the Villere Designee shall provideNominating Committee in such request, fully and completely, information that provide to the Company reasonably requests (including i) such information that as is required to be disclosed in proxy statements under applicable law, (ii) an executed consent from the BD Designee to be named as a nominee in the Company’s proxy statement or for the applicable Designated Annual Meeting and to serve as a director if so elected, (iii) a completed and executed D&O Questionnaire in the form separately provided to Black Diamond, which D&O Questionnaire shall be in the same form provided to the Company’s other filings under applicable law or stock exchange rules or listing standardsnominees, and information (iv) an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A (clauses (i) and (ii) collectively, the “Nomination Documents”). The BD Designee must be reasonably acceptable to the Nominating Committee and has met, prior to the date hereof, and will meet, prior to each subsequent Designated Annual Meeting, with representatives of the Nominating Committee in accordance with the then practices of the Board and the Nominating Committee.
(e) Except as set forth in Section 2(g) of this Agreement, during the Term the Board shall not take any action to remove, or cause to be removed, the BD Designee. If, during the Term, the BD Designee resigns from the Board or is rendered unable to, or refuses to, be appointed to, or for any other reason fails to serve or is not serving on, the Board (other than by reason of Black Diamond’s failure to satisfy the Ownership Minimum), Black Diamond shall be entitled, in its discretion, to designate a replacement Board member for such BD Designee; provided, in each case such replacement satisfies each of the requirements of the BD Designee under this Agreement and is reasonably acceptable to the Nominating Committee (the “Replacement BD Designee”); and provided further, such right to designate a Replacement BD Designee following the BD Designee’s resignation or removal from the Board by reason of clause (ii) of Section 2(g) of this Agreement shall be available on the first such occasion only. The Company shall take all reasonable actions to implement the foregoing as promptly as practicable, consistent with the standards and processes followed in connection with assessing eligibilitythe initial appointment or election of the BD Designee. Any Replacement BD Designee who becomes a Board member in replacement of the BD Designee shall thereafter be deemed to be the BD Designee for all purposes under this Agreement, independence and other criteria applicable prior to directors his or satisfying compliance her appointment to the Board, shall be required to provide to the Company the Nomination Documents and legal obligations)meet with representatives of the Nominating Committee in accordance with the then practices of the Board and the Nominating Committee.
(f) The Villere Subject to applicable laws and regulations and provided Black Diamond has no financial or other interest in the subject transaction (other than (i) as a stockholder of the Company participating on a pro rata basis or (ii) if BD then holds an interest in any indebtedness issued by the Company and the Board determines, in consultation with Black Diamond and in good faith that no conflict of interest exists as a result of such interest, as a debtholder of the Company), the Board and all applicable committees and subcommittees of the Board shall take all actions necessary to ensure that, at all times during the Term while the BD Designee is serving on the Board, the BD Designee will be a member of any special committee of the Board created by the Board to oversee or consider any transaction or other strategic event that might lead to a Change of Control or other material change to the Company’s capital structure. In the event that a good faith determination is made under clause (ii) of this paragraph (f) that a conflict of interest exists as a result of such indebtedness, then Black Diamond shall have 30 days to cure such conflict by disposing of its interest in the portion of such indebtedness that gives rise to such conflict, in a manner that is orderly and market-oriented and would not reasonably be expected to disrupt the market for the Company’s debt securities, following which it shall be appointed to the applicable special committee so long as it meets all of the requirements applicable to other committee members.
(g) Notwithstanding the foregoing Sections 2(a) through 2(f), if at any time after the date hereof, (i) Black Diamond, together with all Affiliates of the members of Black Diamond (such Affiliates, collectively and individually, the “BD Affiliates”), ceases collectively to Beneficially Own, an aggregate Net Long Position of at least 1,719,969 shares of Common Stock
(i. e., 15% of the total number of shares of Common Stock issued and outstanding on the date hereof) (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like) (the “Ownership Minimum”) or (ii) Black Diamond or the BD Designee materially breaches any of the terms of this Agreement and fails to cure such breach within 15 days following the receipt of written notice thereof from the Company specifying such breach (a “BD Material Breach”), then (1) Black Diamond shall cause the BD Designee to promptly tender his or her resignation from the Board and any committee of the Board on which he or she then sits and (2) (x) in the case of the first BD Material Breach only, Black Diamond shall have the right on such one occasion only to designate a Replacement BD Designee in accordance with Section 2(e) of this Agreement and (y) in the event of Black Diamond’s failure to satisfy the Ownership Minimum or any BD Material Breach other than the first BD Material Breach, the Company shall have no further obligations under this Section 2. In furtherance of clause (i) of this Section 2(g) only, the BD Designee shall, prior to his or her appointment or nomination to the Board, and Black Diamond shall cause the BD Designee to, execute an irrevocable resignation as director in the form attached hereto as Exhibit A and deliver it to the Company. During the Term, Black Diamond shall, upon the Company’s request (which request shall be no more than once per calendar month), provide the Company with the number of shares of Common Stock owned by Black Diamond and the BD Affiliates to the extent that Black Diamond is no longer subject to Section 16 of the Exchange Act and such position differs from the ownership positions publicly reported on Black Diamond’s Schedule 13D and amendments thereto. For the avoidance of doubt, nothing in this Section 2(g) shall release Black Diamond or the BD Designee from its respective obligations hereunder and nothing in this Agreement shall require the Company or the Board to nominate the BD Designee, at or take any of the other actions described in Section 2(b) above, with respect to any Annual Meeting of Stockholders of the Company occurring after the 2018 Annual Meeting.
(h) At all times while serving as a member of the Board, the BD Designee shall (i) meet comply with all director independence current and other future laws, policies, procedures, processes, codes, rules, standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and guidelines applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunderto Board members, including Rule 10A-3, (ii) be qualified to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) but not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee limited to the Company’s Code of Conduct for the Board of Directors, securities trading policies, anti-hedging policies, Regulation FD-related policies, director confidentiality policies and corporate governance guidelines, and shall preserve the confidentiality of Company business and information, including (x) any agreement, arrangement discussions or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification matters considered in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee meetings of the Board in writing if he or she ceases Board committees (subject to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”Section 6 hereof).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Samples: Nomination, Standstill and Support Agreement (Hawaiian Telcom Holdco, Inc.)
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as follows:
(a) The Board shall increase Concurrently with the Company’s execution of this Agreement, the Company has (i) increased the size of the Company’s board of directors Board such that there would be a vacancy on the Board and (ii) appointed Xx. Xxxx Xxxxxx (the “BoardAppointee”) to appoint fill the Villere Designee to newly created vacancy, with a term expiring at the Board to serve as a director until the Annual Meeting Company’s 2025 annual meeting of the Company shareholders stockholders (the “Annual Meeting”) held in the year 2015 (the “2015 2025 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director Board, and all applicable committees of the Board, shall take all necessary actions to nominate and recommend the Appointee as a candidate for election to the Board under at the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director2025 Annual Meeting, an “Independent Director”)and the Company agrees to recommend, support and solicit proxies for the election of the Appointee at the 2025 Annual Meeting in a manner no less rigorous and favorable than the manner in which the Company supports the Board’s other nominees.
(c) The Villere Designee Company agrees that, during the Standstill Period (as defined herein), the Appointee shall be offered considered along with all other Board members for Board committee assignments in connection with the opportunity to become a member to one or more standing committees of the Board for which such Villere DesigneeBoard’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the annual review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faithcomposition.
(d) At its next Board meetingThe Company agrees that if, during the Standstill Period, the Board will form a committee of not more than five directors Appointee (or his replacement appointed pursuant to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(ethis Section 1(d)) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(f) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified unable to serve as a director under for any reason, and at such time Stockholder has a Beneficial Ownership (as defined herein) of at least the General and Business Corporations Law lesser of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director 1.2% of the Company, ’s then outstanding Common Stock and (y) those that otherwise compete with 321,776 shares of Common Stock (subject to adjustment for stock splits, reclassifications, combinations, and similar adjustments), then Stockholder shall have the interests of the Company (including serving as ability to identify and recommend a replacement director, employee or consultant (or in a similar capacity) of provided that any business such candidate so recommended shall qualify as “independent” under NYSE’s listing standards. In the event that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation LetterNominating Committee”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer does not recommend to resign from the Board andor, if requested by the Companyas provided below, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent thereafter elect the replacement director so recommended (it being acknowledged that the Nominating Committee and Board cannot unreasonably withhold, condition, or delay their respective recommendation or election), then Stockholder shall have the right to Xxxxxxx’x designated new recommend an additional replacement director for consideration by the Nominating Committee and/or Board. Upon recommendation of a replacement director candidate by the Nominating Committee, the Board memberwill take such actions as are necessary to elect such replacement director to the Board no later than ten (10) business days after the Nominating Committee’s recommendation. Subject to NYSE rules and applicable law, Villere shall be entitled to designate another new Board member until upon a new Villere Designee is appointed replacement director’s election to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director all applicable committees of the Company (including as as an Independent Director), or that could be material Board shall take all necessary actions to a reasonable shareholder’s understanding appoint such replacement director to any applicable committee of the qualifications and/or independence Board of which the replaced director was a member immediately prior to such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in director’s resignation or removal. Following the event the Villere Designee has resigned pursuant to clause (iii) appointment of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely any replacement director in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”this Section 1(d), which Villere and the Villere Designee agree to execute and deliver any reference to the Company at Appointee in this Agreement shall be deemed to refer to such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories theretoreplacement director.
Appears in 1 contract
Samples: Support Agreement (Tejon Ranch Co)
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as followsEach Party agrees that:
(a) The As promptly as practicable after the execution and delivery of this Agreement, the Board shall increase the size of Directors of the Company’s board of directors Company (the “Board”) to will appoint the Villere Designee Xx. Xxxxxxx X. Squires to the Board to serve as a director until the Annual Meeting of the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment to the Board, continuing service as a member of the Board, and any subsequent nomination for election as a director of the class of directors whose terms expire in 2018 (the “2018 Class”) and include Xx. Xxxxxxx as a nominee to the 2018 Class on the slate of directors to be elected at the annual meeting of stockholders of the Company at any to be held in 2016 (the “2016 Annual Meeting, each of Villere and ”). Xx. Xxxxxxx shall be referred to herein as the Villere Designee shall provide, fully and completely, information that the Company reasonably requests (including information that is “New Nominee”. With respect to filings required to be disclosed in a proxy statement or other filings made by the New Nominee under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations).
(fSection 16(a) The Villere Designee, at all times while serving as a member of the Board, shall (i) meet all director independence and other standards of the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”)) in connection with his election to and service on the Board, the Company agrees that it will make such filings for the New Nominee consistent with its practice with respect to the other directors.
(b) Xx. Xxxxxxx will be offered the opportunity to become a member of the Board’s Nominating and Governance Committee; provided, that the New Nominee, subject to satisfying the Company’s governance policies in effect as of the date of this Agreement and as in effect from time to time (to the extent any changes in the Company’s governance policies are not, and could not reasonably be construed to have been, implemented for the purpose of removing the New Nominee from a committee) and applicable law and the rules and regulations promulgated thereunderof the New York Stock Exchange (or any other securities exchange on which the Company’s securities are then traded) as in effect from time to time, including Rule 10A-3shall continue to have the right to serve on such committee for so long as he serves on the Board. The Investor acknowledges that if the Board determines in its good faith judgment that the New Nominee no longer satisfies the Company’s governance policies, applicable law or the rules and regulations of the New York Stock Exchange (or any other securities exchange on which the Company’s securities are then traded), as in effect from time to time, the Board shall have the discretion to remove the New Nominee from any committee of the Board on which the New Nominee is then serving, so long as (i) the treatment of the New Nominee is not inconsistent with the treatment of the other directors and (ii) any changes in the Company’s governance policies are not, and could not reasonably be qualified construed to serve as have been, implemented for the purpose of removing the New Nominee from a director under committee. No later than May 10, 2016, the General Nominating and Business Corporations Law Governance Committee will evaluate the membership of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations all of the Villere Designee Company’s Board committees and make a recommendation to the CompanyBoard as to the membership thereof.
(c) Prior to the execution of this Agreement, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action Xx. Xxxxxxx X. Matthews shall have delivered his unconditional resignation from his current position as a director of the Company to the Company, and (y) those that otherwise compete which resignation shall be effective immediately upon the execution of this Agreement. Prior to or concurrently with the interests execution of this Agreement, the Company has accepted the resignation of Xx. Xxxxxxxx from such position as director on the Board. During the Standstill Period, the Board will not increase the size of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the ConditionsBoard.
(gd) The Villere Designee Board will exercise its reasonable best efforts, including the solicitation of proxies, to cause the election of Xx. Xxxxxxx at the 2016 Annual Meeting (it being understood that such efforts shall provide to not be less than the efforts used by the Company an executed irrevocable resignation to obtain the election of any other director nominee nominated to serve as director in on the form attached hereto as Exhibit “A” (Board of the “Director Resignation Letter”2016 Annual Meeting).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of If the Conditions in clause (f) above; (iii) Villere New Nominee resigns or is otherwise terminates or ceases unable to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long serve as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election director (other than as a result of not being nominated removal, or the failure to be elected at the 2016 Annual Meeting by the stockholders of the Company), the Company for an annual meeting of shareholders subsequent and the Investor shall select a replacement director, mutually acceptable to the 2015 Annual Meeting) (any such eventCompany and the Investor, an “Appointment Refusal”)which acceptance shall not be unreasonably withheld, Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added add as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Samples: Director Nomination Agreement (Forestar Group Inc.)
Board Representation and Board Matters. (a) The Company, Villere Company and the Villere Designee Icahn Group agree as follows:
(ai) The Board On or prior to March 18, 2021, the Company shall take or shall have taken all necessary action to increase the size of the Company’s board Board of directors Directors of the Company (the “Board”) by two seats, and to appoint Xxxxxx Xxxx and Xxxxx Xxxx (Messrs. Teno and Xxxx, collectively, the Villere Designee “Icahn Designees” and each an “Icahn Designee”) to fill the Board to serve as resulting vacancies, each with a director until term expiring at the Annual Meeting 2021 annual meeting of shareholders of the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 2021 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant Prior to such committee’s activities, in each case, date as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment Icahn Designees are appointed to the Board, continuing service the Icahn Group shall not request and the Company shall not provide any material non-public information relating to or involving the Company to the Icahn Group.
(ii) From and after the date of this Agreement until such time as a member of the Icahn Group no longer has an Icahn Designee (or any Replacement Designee (as defined below)) on the Board, the Icahn Group, the Icahn Designees and any subsequent nomination for election Replacement Designees agree that none of them or any of their Affiliates or Associates (each as a director defined below) will exercise, or take any action that would constitute exercising, substantial influence or control over the Company or any of its subsidiaries; it being understood and agreed that the good faith discharge by the Icahn Designees of their fiduciary duties solely in their role as directors of the Company (including, without limitation, by voting at any Annual Meeting, each Board and Committee meetings following such time that all Regulatory Approvals have been obtained) shall in no event be deemed to constitute the exercise of Villere and the Villere Designee shall provide, fully and completely, information that substantial influence or control over the Company reasonably requests (including information that is required to be disclosed in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations)any of its subsidiaries.
(fiii) The Villere Until such time as all Regulatory Approvals (as defined below) are obtained, no Icahn Designee (or Replacement Designee, at all times while ) serving as a member of the Board, Board shall (i) meet all director independence and other standards of have the Company, NASDAQ and the Securities and Exchange Commission (the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified right to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have vote at any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”). The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee meeting of the Board in writing if he or she ceases to satisfy any of the ConditionsBoard Committees.
(giv) The Villere Designee As soon as practicable following the time of occurrence of any Regulatory Denial, the Icahn Designees (including any Replacement Designees) shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board (and the Icahn Group shall cause the Icahn Designees and any Replacement Designees to promptly take such action). The term “Regulatory Denial” shall mean that any regulatory authority which regulates the Company and/or any of its subsidiaries and/or operations (a “Regulatory Authority” and, if requested by collectively, “Regulatory Authorities”) has, following the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: earlier of (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any of the terms of this Agreement.
(i) Villere agrees to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.exhaustion
Appears in 1 contract
Samples: Director Appointment and Nomination Agreement (Firstenergy Corp)
Board Representation and Board Matters. The Company, Villere Company and the Villere Designee Stockholder agree as follows:
(a) The effective as of the date hereof, the Board shall take all action to (1) increase the size of the Company’s board of directors Board by one director to nine (9) directors, (2) appoint Xxxxxx Xxxxx (the “BoardStockholder Designee”) to appoint fill the Villere Designee to resulting vacancy on the Board to serve as a director until an initial term expiring at the Annual Meeting annual meeting of stockholders of the Company shareholders to be held in 2017 (the “2017 Annual Meeting”) held in and (3) concurrent with his appointment to the year 2015 (Board, appoint Xx. Xxxxx to the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.Nominating Committee;
(b) The Company has determined that the Villere Designee would constitute an independent director Company’s slate of nominees for election as directors of the Board under Company at the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).2017 Annual Meeting shall include the Stockholder Designee;
(c) The Villere the Company will use its reasonable best efforts to cause the election of the Stockholder Designee to the Company’s Board at the 2017 Annual Meeting (including recommending that the Company’s stockholders vote in favor of the election of the Stockholder Designee (along with all other Company nominees) and otherwise supporting the Stockholder Designee for election in a manner no less favorable than the manner in which the Company supports any other independent director nominee);
(d) for so long as Xx. Xxxxx serves on the Board and satisfies all applicable independence standards, Xx. Xxxxx shall be offered the opportunity to become be a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.Nominating Committee;
(e) prior to the execution of this Agreement, (1) the Stockholder Designee has completed and submitted to the Company a director and officer questionnaire (in the same form as completed by other members of the Board); and (2) each of the Board and the Nominating Committee has reviewed and approved the qualifications of the Stockholder Designee to serve as a member of the Board and has determined that the Stockholder Designee currently satisfies the conditions set forth in clause (f) below. As a condition to the Villere Stockholder Designee’s appointment (i) nomination to the Board, Board and (ii) continuing service as a member of the Board, and any subsequent nomination for election as a director of the Company at any Annual Meeting, each of Villere and the Villere Stockholder Designee shall will provide, fully and completely, any information that the Company reasonably requests (requires, including information that is required the Company requires to be disclosed in a proxy statement or other filings filing under applicable law or law, stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations)., to the extent, in each case, consistent with the information required by the Company in accordance with past practice with respect to other members of the Board;
(f) The Villere Designeethe Stockholder Designee will, at all times while serving as a member of the Board, shall :
(i) meet all director independence and other standards of the Company, NASDAQ NASDAQ, any other stock exchange on which the Company’s shares are listed and the U.S. Securities and Exchange Commission (the “SEC”) and ), applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the all rules and regulations promulgated thereunder, including Rule 10A-3, ; and
(ii) be qualified to serve as a director under the Delaware General and Business Corporations Corporation Law of Missouri (the “GBCLMDGCL”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations of the Villere Designee to the Company, including (x) any agreement, arrangement or understanding with any person other than the Company with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through and (iiiii), collectively, the “Conditions”). The Villere Stockholder Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the ConditionsCondition.
(g) The Villere Designee shall provide notwithstanding anything to the Company an executed irrevocable resignation as director contrary contained herein, if at any time after the date of this Agreement, the Stockholder, together with its Affiliates, ceases to Beneficially Own in the form attached hereto as Exhibit aggregate at least 10% of the Voting Securities (a “A” (the “Director Resignation LetterStockholder Designee Termination Event”).
, then (h1) The Company’s obligations hereunder the Stockholder shall terminate immediately, and cause the Villere Stockholder Designee shall to promptly offer to resign tender his or her resignation from the Board and any committee of the Board on which he or she may be a member (and, if requested by the Company, in accordance with promptly deliver his or her written resignations to the Irrevocable Resignation, Board (which shall provide for his or her immediate resignations) it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation), and (2) the Company shall have no further obligations under this Agreement. In furtherance of the foregoing, the Stockholder Designee shall, prior to his or her appointment to the Board, and the Stockholder shall cause the Stockholder Designee to, execute an irrevocable resignation if: in the form attached hereto as Exhibit A;
(h) at all times while serving as a member of the Board, the Stockholder Designee shall, and the Stockholder shall use reasonable best efforts to cause the Stockholder Designee to, comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members, including, without limitation, Code of Conduct and Corporate Governance Guidelines, securities trading policies, anti-hedging and anti-pledging policies, Regulation FD-related policies, director confidentiality policies and other corporate governance and compliance policies, in each case to the extent applicable to all non-employee Board members (provided that no provision of any such document shall be deemed to be violated by any communication permitted by this Agreement or the NDA), and (except as permitted by the NDA) preserve the confidentiality of the Company’s confidential information, including discussions or matters considered in meetings of the Board or Board committees to the extent not disclosed publicly by the Company; and
(i) Villere ceases to beneficially own if, during the Restricted Period (as defined below) at least 8.1% ), the Stockholder Designee is no longer able to serve, solely as a result of the CompanyStockholder Designee’s outstanding Common Stock; (ii) death or incapacitation, or due to the Villere fact that the Stockholder Designee ceases to satisfy any be affiliated with the Stockholder and its Affiliates, in each case provided that a Stockholder Designee is otherwise then entitled to be appointed or serve, as applicable, as a director of the conditions Company pursuant to this Agreement, then the Stockholder shall be entitled to designate a replacement director who shall (1) meet the requirements set forth in clause (e) and any of the Conditions in clause (f) above; , (iii2) Villere otherwise terminates or ceases be reasonably acceptable to comply with or breaches any the Board after the Nominating Committee has conducted its ordinary course review process for directors of the terms of this Agreement.
Company, (i3) Villere agrees provide the items required to use its reasonable best efforts be provided by the Stockholder Designee pursuant to cause clauses (e) and (g) above and (4) agree to be bound in writing by all obligations that are applicable to the Villere Stockholder Designee to hereunder. The Board shall promptly resign from the Board if such Villere Designee fails to resign if and when requested appoint any replacement pursuant to this clause (i). Prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company such replacement shall cause such nominee be considered to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or election, as applicable, in each case that is reasonably consented to by the Board, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable to the Board); provided, that, for the avoidance of doubt and notwithstanding anything herein to the contrary, this Section 1(i) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter.
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Stockholder Designee” under this Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Samples: Nomination Agreement (Houghton Mifflin Harcourt Co)
Board Representation and Board Matters. The Company, Villere Company and the Villere Designee Xx. Xxxxx agree as follows:
(ai) The Company agrees that, immediately upon the execution of the Agreement, the Company will announce and accept the irrevocable retirement of a current member of the Board, as determined by the Board, with such retirement effective on or before July 31, 2022 (the “Retirement”).
(ii) Promptly following the execution of the Agreement, the Company shall form a hiring committee consisting of two current members of the Board shall increase the size and one independent stockholder who has owned shares of the Company’s board of directors common stock for more than two years (the “Independent Stockholder,” and, together with the two current members of the Board, the “Hiring Committee”). The Independent Stockholder’s service on the Hiring Committee is conditioned upon the execution of a confidential agreement in form and substance reasonably acceptable to the Company (an “NDA”).
(iii) The Hiring Committee shall use good faith and commercially reasonable efforts to appoint the Villere Designee recommend, by unanimous approval, to the Board a qualified candidate to serve as a fill the vacancy created by the Retirement (such director until upon appointment to the Annual Meeting of Board, the Company shareholders (the “Annual Meeting”) held in the year 2015 (the “2015 Annual Meeting”), as promptly as practicable (but in no event later than 10 days) after the date hereof. The Company agrees to hold the 2015 Annual Meeting no later than July 31, 2015.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a . Each member to one or more standing committees of the Board Hiring Committee shall identify qualified candidates for which such Villere Designee’s skills qualify him or her and, consideration by the Hiring Committee. The Hiring Committee shall engage in addition, good faith discussions to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies identify and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve unanimously agree on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) qualified candidate from such list for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s recommended appointment to the Board, continuing and, following such recommendation, the Board shall promptly cause such candidate, subject to the satisfaction of the qualifications and requirements set forth in this Section 1(iii), to be appointed to the Board for a term expiring at the 2024 Annual Meeting of Stockholders (the “2024 Annual Meeting”). The minimum qualifications of a qualified candidate shall be an individual who meets the applicable independence standards and criteria for service on the Board and:
a) is willing and able to serve at least a three-year term on the Board;
b) commits to cooperate with the Company to undergo any suitability review or licensing required for service as a member of the Board, and any subsequent nomination for election as meet all applicable gaming suitability requirements (including regulatory requirements and licensure); and
c) has a director background and extensive experience in a field relevant to the Company (including but not limited to, long term shareholder orientation, public company operations, executive management, gaming and/or intellectual property licensing); In no event shall a qualified candidate be (a) Xx. Xxxxx, (b) a member of the Hiring Committee, or (b) an Affiliate (as defined below), family member or representative of a member of the Hiring Committee, the Company or Xx. Xxxxx.
(iv) The Company shall use commercially reasonable efforts to cause the election of the Independent Director (or any Replacement, as applicable) at the 2023 Annual Meeting for a term expiring at the 2024 Annual Meeting (including by (x) recommending that the Company’s stockholders vote in favor of the election of the Independent Director (or any Replacement, as applicable), (y) including the Independent Director (or any Replacement, as applicable) in the Company’s proxy statement and proxy card for the 2023 Annual Meeting, each of Villere and (z) otherwise supporting the Villere Designee shall provideIndependent Director (or any Replacement, fully as applicable) for election in a manner no less rigorous and completely, information that favorable than the manner in which the Company reasonably requests (including information that is required to be disclosed supports its other nominees in a proxy statement or other filings under applicable law or stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligationsthe aggregate).
(fv) Immediately following the appointment of the Independent Director (or any Replacement, as applicable) to the Board, the Board shall, in accordance with the discretion of its Chairman and with its customary governance processes, in the Board’s sole and absolute discretion, determine any appropriate Board committee assignments for the Independent Director (or any Replacement, as applicable), taking into account the composition of the Board, the time commitments made by the other members of the Board, committee assignments and the needs and independence and eligibility requirements of the committees and, subject to the foregoing, appoint the Independent Director (or any Replacement, as applicable) if he meets such requirements to such committees of the Board. The Villere DesigneeCompany further agrees that, at all times while serving as a member of the Board, the Independent Director (or any Replacement, as applicable) shall be subject to the same rules, policies and restrictions as any other director, and shall have the right to the same rights as any other director with respect to (i) the right of members of the Board to indemnification, (ii) the right of members of the Board to liability insurance, and (iii) compensation for service on the Board.
(vi) Xx. Xxxxx agrees not to conduct a proxy contest or engage in any solicitation of proxies regarding any matter, including the election of directors, with respect to the 2022 Annual Meeting.
(vii) The parties agree to use commercially reasonable efforts to negotiate in good faith and execute an NDA between the Company and Xx. Xxxxx regarding the information Xx. Xxxxx would receive in his capacity as a Board observer as contemplated by this Section 1(vii). Upon the execution of the NDA, Xx. Xxxxx will have the right to attend all meetings of the Board solely in a non-voting, observer capacity (in such capacity, the “Observer”). The Company shall (i) meet give the Observer notice of all director independence and other standards meetings of the Company, NASDAQ and Board at the Securities and Exchange Commission (same time as furnished to the “SEC”) and applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)Board Members, and the rules and regulations promulgated thereunder, including Rule 10A-3, (ii) be qualified permit the Observer to serve as a director under the General and Business Corporations Law of Missouri (the “GBCLM”) and (iii) not have any personal or business interests or relationships that conflict with or may potentially conflict with the responsibilities and obligations participate by telephone in all meetings of the Villere Designee Board. Notwithstanding anything to the Companycontrary in this Section 1(vii), including (x) Xx. Xxxxx shall not receive any agreement, arrangement written materials distributed to the Board. The Company reserves the right to exclude the Observer from any meeting or understanding with any person other than portion thereof if attendance at such meeting could adversely affect the attorney-client privilege between the Company with respect to any direct and its counsel or indirect compensation, reimbursement result in the disclosure of trade secrets or indemnification in connection with service or action as a director conflict of the Company, and (y) those that otherwise compete with the interests of the Company (including serving as a director, employee or consultant (or in a similar capacity) of any business that competes, in any material respect, with any of the businesses carried on by the Company) (the preceding clauses (i) through (iii), the “Conditions”)interests. The Villere Designee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the Conditions.
(g) The Villere Designee shall provide to the Company an executed irrevocable resignation as director in the form attached hereto as Exhibit “A” (the “Director Resignation Letter”).
(h) The Company’s obligations hereunder shall terminate immediately, and the Villere Designee shall promptly offer to resign from the Board and, if requested by the Company, in accordance with the Irrevocable Resignation, it being understood that it shall be in the Board’s sole discretion whether to accept or reject such resignation if: (i) Villere ceases to beneficially own (as defined below) at least 8.1% of the Company’s outstanding Common Stock; (ii) the Villere Designee ceases to satisfy any of the conditions observer rights set forth in clause this Section 1(vii) shall expire upon the earliest to occur of (ea) and any the appointment of the Conditions in clause Independent Director to the Board, (fb) above; (iii) Villere otherwise terminates or ceases to comply with or breaches any the expiration of the terms Standstill Period or (c) the termination of this Agreement.
(iviii) Villere agrees If, at any time following the appointment of the Independent Director (or any Replacement, as applicable) to use its reasonable best efforts to cause the Villere Designee to promptly resign from the Board if such Villere Designee fails to resign if and when requested pursuant to this clause (i). Prior prior to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below and for so long as Villere has not breached this Agreement (and, to the extent curable, failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for an annual meeting of shareholders subsequent to the 2015 2024 Annual Meeting) (any such event, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented unable to by the Board, and the Company shall cause such nominee to be added serve as a member of the Board (it being understood that, in the event that for any reason or otherwise continue service on the Board does not consent (other than on account of failure to Xxxxxxx’x designated new Board memberbe elected at the 2024 Annual Meeting), Villere the Hiring Committee shall be entitled use good faith and commercially reasonable efforts to designate another new Board member until a new Villere Designee is appointed recommend, by unanimous approval, to the Board), and (B) in Board a qualified candidate to replace the event of an Appointment Refusal, Villere shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment (or electionany Replacement, as applicable) as a replacement qualified director candidate (each a “Replacement”) to serve, and the Board shall appoint such Replacement to serve on the Board, for a term expiring at the 2024 Annual Meeting, in each case that is reasonably consented to by the Boardcase, and the Company shall, as applicable, cause such nominee to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent to appoint or include on the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate, Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee is reasonably acceptable subject to the Board); provided, that, for the avoidance of doubt terms and notwithstanding anything herein to the contrary, this requirements set forth in Section 1(i1(iii) shall not entitle Villere to an additional designee on the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request above (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility of such proposed nominee to serve either as a director of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding satisfaction of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Lettercandidate set forth therein).
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
Board Representation and Board Matters. The Company, Villere and the Villere Designee agree as followsEach Party agrees that:
(a) The (i) As promptly as practicable after the date hereof, the Board shall increase the size of Directors of the Company’s board of directors Company (the “Board”) to appoint will, effective as of the Villere Designee to the Board to serve as a director until date of the Annual Meeting of Stockholders of the Company shareholders to be held in 2014 or held shortly thereafter (the “Annual Meeting”) held in the year 2015 (the “2015 2014 Annual Meeting”), as promptly as practicable (but in increase the size of the Board by two directorships and nominate Messrs. Xxxxxxxxxxx and Xxxxxx for election to the Board, to be included on the slate of directors to be elected at the 2014 Annual Meeting. The 2014 Annual Meeting shall be held no event later than 10 days) 45 days after the date hereof. of this Agreement.
(i) The Company agrees to hold shall support the 2015 New Nominees for election by the Company’s stockholders at the 2014 Annual Meeting in no later less rigorously and favorably a manner than July 31it supports all of its other nominees including, 2015without limitation, recommending that the Company’s stockholders vote in favor of the election of the New Nominees at the 2014 Annual Meeting. None of the Company, the Board or the Nominating and Corporate Governance Committee of the Board (the “Nominating Committee”) shall take any position, make any statements or take any action inconsistent with such recommendation.
(ii) The New Nominees shall be considered by the Nominating Committee and the Board for inclusion on committees of the Board in good faith in a manner consistent with other members of the Board, in accordance with past practice, for which purpose their respective qualifications and experience shall be reasonably considered.
(iii) Prior to the execution of this Agreement, (A) each of the New Nominees has completed and submitted to the Company a director and officer questionnaire (in the same form as completed by other members of the Board); and (B) the Board has reviewed and approved the qualifications of the New Nominees to serve as members of the Board and has determined that each New Nominee currently satisfies the conditions set forth in (c) below.
(b) The Company has determined that the Villere Designee would constitute an independent director of the Board under the applicable The NASDAQ Stock Market (“NASDAQ”) independence rules (any such director, an “Independent Director”).
(c) The Villere Designee shall be offered the opportunity to become a member to one or more standing committees of the Board for which such Villere Designee’s skills qualify him or her and, in addition, to serve on the committee the Board establishes pursuant to Section 1(d) below to oversee the review of the Company’s business strategies and strategic alternatives; provided, that, notwithstanding the foregoing and for the avoidance of doubt, the Villere Designee shall not be entitled to serve on a committee if he or she (A) does not meet the independence or other requirements of applicable law and the rules and regulations of NASDAQ (or other securities exchange on which the Company’s securities may then be traded) for service on such committee or (B) is subject to conflicts of interest relevant to such committee’s activities, in each case, as determined by the Board in good faith.
(d) At its next Board meeting, the Board will form a committee of not more than five directors to review and evaluate the Company’s business strategies and strategic alternatives and make recommendations to the Board with respect to potential changes in strategy and strategic alternatives.
(e) As a condition to the Villere Designee’s appointment New Nominees’ (i) nominations to the Board, (ii) continuing service as a member members of the Board, Board and (iii) any subsequent nomination for election as a director of the Company at any Annual Meetingsubsequent annual meeting, each of Villere and the Villere Designee shall New Nominees will provide, fully and completely, any information that the Company reasonably requests (requires, including information that is required the Company requires to be disclosed in a proxy statement or other filings filing under applicable law or law, stock exchange rules or listing standards, and information in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal obligations), to the extent, in each case, consistent with the information required by the Company in accordance with past practice with respect to other members of the Board.
(fc) The Villere DesigneeNew Nominees, at all times while serving as a member members of the Board, shall will:
(i) meet all director independence and other standards of the Company, NASDAQ NASDAQ, any other stock exchange on which the Company’s shares are listed and the U.S. Securities and Exchange Commission (the “SEC”) and ), applicable provisions of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the all rules and regulations promulgated thereunder, including Rule 10A-3, ;
(ii) be qualified to serve as a director under the Delaware General and Business Corporations Corporation Law of Missouri (the “GBCLMDGCL”) and ); and
(iii) not have any personal or business interests interest or relationships relationship that materially conflicts with or would reasonably be expected to materially conflict with any responsibility or may potentially conflict with the responsibilities and obligations obligation of the Villere Designee each New Nominee to the Company, including (x1) any agreement, arrangement or understanding with any person person, other than the Company Company, with respect to any direct or indirect compensation, reimbursement or indemnification in connection with service or action as a director of the Company, and (y2) those that otherwise materially compete with the interests any interest of the Company (including serving as a director, employee or employee, consultant (or in a similar capacity) capacity of any business that competes, in any material respect, with any of the businesses business carried on by the Company), in each case to the same extent such conditions apply in accordance with past practice to other members of the Board (other than officers or employees of the Company) (the preceding clauses (i) through (iii), collectively, the “Conditions”). The Villere Designee Each New Nominee will promptly advise both the Board and the Nominating and Corporate Governance Committee of the Board in writing if he or she ceases to satisfy any of the ConditionsCondition.
(gd) The Villere Designee shall provide to Either the Company an executed irrevocable resignation as director New Nominee in question, in the form attached hereto as Exhibit “A” case of clause (i) below, or both New Nominees, in the “Director Resignation Letter”).
case of clause (hii) The Company’s obligations hereunder shall terminate immediatelybelow, and the Villere Designee shall will promptly offer to resign from the Board and, if requested by the Company, in accordance with promptly deliver their written resignations to the Irrevocable ResignationBoard (which will provide for their immediate resignations), it being understood that it shall be in the Board’s Board having sole discretion whether to accept or reject such resignation if: resignation, and the Company’s obligations hereunder shall thereupon terminate with respect to such New Nominee (in the case of clause (i) Villere ceases to beneficially own (as defined below) at least 8.1% or both New Nominees (in the case of the Company’s outstanding Common Stock; clause (ii) the Villere Designee below), if:
(i) either New Nominee ceases to satisfy in any material respect any condition in clauses (b) or (c), and fails to substantially cure such matter within 10 business days after notice thereof from the Company; or
(ii) any member of the conditions set forth in clause (e) and any of the Conditions in clause (f) above; (iii) Villere Barington Group otherwise terminates or ceases to comply with or breaches breaches, in any of the terms material respect, any term of this Agreement.
, and fails to substantially cure such matter within 10 business days after notice thereof from the Company. The members of the Barington Group agree to cause either the New Nominee in question (in the case of clause (i) Villere agrees above) or both New Nominees (in the case of this clause (ii)) to use its reasonable best efforts to cause the Villere Designee to resign promptly resign from the Board if such Villere Designee New Nominee fails to resign if and when requested pursuant to this clause (id). Prior .
(e) Barington irrevocably withdraws any deemed or purported nomination of directors contained in its letters to the termination of this Agreement in accordance with Section 16 below or the Standstill Period in accordance with Section 2(a) or 2(c) below Company, dated November 10 and for so long as Villere has not breached this Agreement (and11, 2014, and all nominations to the extent curable, failed Board made before the date hereof.
(f) If at any time either New Nominee is unable to cure such breach within five serve (5or to continue to serve) business days as a director of written notice from the Company specifying any such breach), should the Villere Designee (x) resign from the Board or for any other reason fail to continue serving on the Board (any such event, a “Board Departure”), or (y) be rendered unable to, or refuse to, stand for appointment or election (other than as a result of not being nominated by the Company for such person’s death, incapacity or an annual meeting impediment resulting from events or circumstances outside of shareholders subsequent to the 2015 Annual Meeting) (any such eventhis control, an “Appointment Refusal”), Villere shall (A) in the case of a Board Departure, be entitled to designate a new Board member that would qualify as an Independent Director and is reasonably consented to by the Board, and the Company shall cause such nominee to be added as a member of the Board (it being understood that, in the event that the Board does not consent to Xxxxxxx’x designated new Board member, Villere shall be entitled to designate another new Board member until a new Villere Designee is appointed to the Board), and (B) in the event of an Appointment Refusal, Villere then Barington shall be entitled to designate a new candidate that would qualify as an Independent Director for appointment or electionreplacement New Nominee (any replacement New Nominee selected in accordance with this Section 1(f), as applicable, in each case that is reasonably consented to by the Boarda “Replacement Nominee”), and the Company shall, as applicable, cause such nominee Replacement Nominee shall be deemed a New Nominee for all purposes of this Agreement and promptly appointed to be appointed or included on the Company’s slate of directors for the upcoming annual meeting (it being understood that, in the event that the Board does not consent (or nominated for election to appoint the Board if such death or include on incapacity occurs prior to the Company’s slate of directors for the upcoming annual meeting Xxxxxxx’x designated candidate2014 Annual Meeting), Villere shall be entitled to designate another new candidate for appointment or election until a new Villere Designee provided that such New Nominee is reasonably acceptable to the Board); provided, that, for Board and the avoidance of doubt and notwithstanding anything herein Nominating Committee. If such Replacement Nominee is not reasonably acceptable to the contraryBoard or the Nominating Committee, this Section 1(i) shall not entitle Villere to an additional designee on Barington will withdraw the Board and shall only apply (1) when and if the previous Viller Designee has resigned, been removed or provided irrevocable notice of his or her intent not to stand for election or appointment, as applicable, (2) the replacement contemplated by this Section 1(i) has delivered to the Company (x) such information as the Company may reasonably request (including that information contemplated by Sections 1(e) and 1(f) and such other information as may reasonably be required by the Company, including in order to determine the eligibility designation of such proposed nominee Replacement Nominee and be permitted to serve either as designate a director replacement therefor (which Replacement Nominee will also be subject to the requirements of the Company (including as as an Independent Director), or that could be material to a reasonable shareholder’s understanding of the qualifications and/or independence of such proposed nominee, and (y) an executed Director Resignation Letter; provided, further, that this Section 1(i) shall not apply in the event the Villere Designee has resigned pursuant to clause (iii) of the Director Resignation Letter1(f)).
(j) The Company hereby agrees that (i) the Villere Designee is permitted to and may provide confidential information to Villere subject to and solely in accordance with the terms of the confidentiality agreement substantially in the form attached hereto as Exhibit “B” (the “Confidentiality Agreement”), which Villere and the Villere Designee agree to execute and deliver to the Company at such time Villere decides to receive confidential information from the Villere Designee and (ii) the Company will execute and deliver the Confidentiality Agreement to Villere as promptly as is reasonably practicable following execution and delivery thereof by the other signatories thereto.
Appears in 1 contract
