Board Representation and Board Matters. (a) No later than two business days following the execution of this Agreement, the Company will take all action necessary to appoint Xx. Xxxx to the Company’s Board of Directors (the “Board”) and the Audit Committee of the Company’s Board (the “Audit Committee”). Xx. Xxxx’x continued membership on the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by the Company’s Board. (b) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having a term expiring on the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”). (c) Each of the Osmium Parties agree during the Standstill Period (defined below): (i) not to, and to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for the election of directors with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent annual meeting of stockholders of the Company during the Standstill Period (an “Applicable Meeting”); and (ii) to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board for election at the 2015 Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval. (d) As a condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx has provided, concurrently with the execution of this Agreement to the Company an executed consent from to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A (e) As a further condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx shall have agreed to, as promptly as practicable upon request of the Company after the date hereof, prior to and as a condition to his appointment to the Board, provide to the Company such additional information as the Company is entitled to receive from members of the Board and as is required to be disclosed in the Company’s proxy statement under applicable law. (f) Notwithstanding the foregoing, if at any time after the Effective Date, (A) the Osmium Parties, together with each of their respective Affiliates and Associates (not including any Non-Controlled Portfolio Company (defined below), (1) ceases collectively to Beneficially Own, an aggregate of at least 5% of the outstanding Common Stock of the Company as of such date, or (2) materially breaches this Agreement , or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director Agreement”), or any other agreement between him and the Company or any of the laws, New York Stock Exchange rules applicable to the Company’s directors or any other Company Board Requirement (as defined
Appears in 1 contract
Samples: Nomination and Support Agreement (Osmium Partners, LLC)
Board Representation and Board Matters. (a) No later than two business days The Company and the Icahn Group agree as follows:
(i) as soon as practicable following the execution of this Agreementdate hereof, the Company will shall take or shall have taken all necessary action necessary to appoint Xx. Xxxx to increase the Company’s size of the Board of Directors of the Company (the “Board”) by two, and following consultation with the Audit Committee of Icahn Group, to appoint two individuals identified by the Company’s Board Icahn Group and reasonably acceptable to the Company (such individuals, collectively, the “Audit CommitteeIcahn Designees” and each an “Icahn Designee”). Xx. Xxxx’x continued membership on ) to fill the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by the Company’s Board.
(b) Subject to the terms of this Agreementresulting vacancies, Xx. Xxxx will be appointed to the Board as a Class I Director having each with a term expiring on at the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”).
(c) Each of the Osmium Parties agree during the Standstill Period (defined below):
(i) not to, and to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for the election of directors with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent first annual general meeting of stockholders of the Company during following such written election (the Standstill Period (an “Applicable First Annual Meeting”); and. Prior to such date as the Icahn Designees are seated as members of the Board, the Icahn Group shall not request and the Company shall not provide any material non-public information relating to or involving the Company. For the avoidance of doubt, it shall not be deemed unreasonable for the Company to reject a designee in accordance with this Section 1(a)(i) if such designee does not satisfy the Director Criteria (as hereafter defined) or the criteria set forth on Annex 1 attached hereto (the “Tax Criteria”).
(ii) the Company shall use reasonable best efforts to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned election of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all each of the directors nominated by the Board for election Icahn Designees at the 2015 First Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported (including by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to (x) recommending that the Company’s articles stockholders vote in favor of incorporation or bylaws that diminish stockholder rightsthe election of each of the Icahn Designees, strategic transactions or new or amended incentive compensation plans submitted (y) including each of the Icahn Designees in the Company’s proxy statement and proxy card for stockholder approval.
the First Annual Meeting, and (dz) otherwise supporting each of the Icahn Designees 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 regarding any matter, including the election of directors, with respect to the First Annual Meeting. As a condition to Xx. Xxxx’x the Icahn Designees’ appointment to the Board, Xxthe Icahn Designees shall execute and deliver a customary joinder to this Agreement. Xxxx has providedPrior to the execution and delivery of such joinder to the Company, concurrently the Icahn Group shall cause the Icahn Designees to comply with the execution of this Agreement covenants, agreements and other provisions herein applicable to the Company an executed consent from to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit AIcahn Designees.
(eiii) As a further condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx shall have agreed to, as promptly as practicable upon request of the Company after the date hereof, prior to and that as a condition to his the Icahn Designees’ appointment to the BoardBoard and subsequent nomination for election, the Icahn Designees each agree to provide to the Company Company, prior to nomination and appointment and on an on-going basis while serving as a member of the Board, such additional information and materials as the Company is entitled to receive routinely receives from other members of the Board and 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”).
(iv) That, subject to Section 1(c) below, should any Icahn 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 as a result of not being nominated by the Company for election at an annual meeting of stockholders subsequent to the First Annual Meeting, following which the Icahn Group’s replacement rights pursuant to this Section 1(a)(iv) shall terminate with respect to such Icahn Designee), 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 breach, the Icahn Group shall be entitled to designate, and the Company shall cause to be added as a member of the Board, or as a nominee on the Company’s slate of nominees for election to the Board at the First Annual Meeting (collectively, the “First BLCO Slate”), as applicable, a replacement that is approved by the Board, such approval not to be unreasonably withheld, conditioned or delayed (an “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, the Icahn Group shall be entitled to continue designating a recommended replacement until such proposed designee is an Acceptable Person) (a “Replacement Designee”). Any Replacement Designee who becomes a Board member in replacement of any Icahn Designee pursuant to this Section 1(a)(iv) or Section 1(e) shall be deemed to be an Icahn Designee for all purposes under this Agreement and, as a condition to being appointed to the Board, shall be required to sign a customary joinder to this Agreement.
(v) For the avoidance of doubt, the Board’s approval of a Replacement Designee pursuant to Section 1(a)(iv) or Section 1(e) shall not be considered unreasonably withheld if: (1) such replacement does not (A) qualify as “independent” pursuant to the NYSE Rules (as defined below), (B) have the relevant financial and business experience to be a director of the Company, or (C) satisfy the requirements set forth in the Company Policies (as defined below), in each case as in effect as of the date hereof 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), the “Director Criteria”); provided that no Director Criteria will be adopted that would prevent any employee or affiliate of the Icahn Group from becoming directors by virtue of the fact that such person is an employee or affiliate of the Icahn Group had such criteria been in effect today; or (2) such Replacement Designee does not satisfy the Tax Criteria.
(vi) that (1) for any annual general meeting of stockholders subsequent to the First Annual Meeting, 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 Articles of Incorporation whether the Icahn Designees will be nominated by the Company for election as directors at such annual general meeting and, (2) if the Icahn Designees are to be so nominated, shall use reasonable best efforts to cause the election of the Icahn Designees so nominated by the Company (including by (x) recommending that the Company’s stockholders vote in favor of the election of the Icahn Designees, (y) including the Icahn Designees in the Company’s proxy statement under applicable lawand proxy card for such annual general meeting and (z) otherwise supporting the Icahn Designees 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 regarding any matter, including the election of directors, with respect to any such annual general meeting at which the Company has nominated Icahn Designees and such Icahn Designees have consented to being named, and are named, in the proxy statement relating to such annual general meeting.
(fvii) Notwithstanding that from and after the date of this Agreement, so long as an Icahn Designee is seated as a member of the Board, without the approval of the Icahn Designees then on the Board (such approval not to be unreasonably withheld, delayed or conditioned), (w) the Board shall not form an Executive Committee or any other committee with functions similar to those customarily granted to an Executive Committee; (x) the Board shall not form any other new committee (other than committees formed with respect to matters for which there are actual conflicts of interest between the Icahn Designees and the Company) without offering to at least one Icahn Designee the opportunity to be a member of such committee (provided, however that if such committee has more than five (5) members then both Icahn Designees shall be offered to be appointed to such committee (to the extent there are two Icahn Designees then on the Board)), (y) the Board shall not increase the size of any committee and (z) any Board consideration of appointment and employment of named executive officers, 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 one of the Icahn Designees is a member (for the avoidance of doubt, nothing in this Agreement changes, amends, or modifies the authority, duties and obligations of the Talent & Compensation Committee of the Board).
(viii) each of the Icahn Designees confirms that he or she will recuse himself or herself from such portions of Board or committee meetings, if any, involving actual conflicts between the Company and the Icahn Group. Promptly following the receipt of the Nomination Documents, the Board shall make a determination as to whether the Icahn Designees, based solely upon the representations provided by the Icahn Group in Section 7 of this Agreement (which representations shall be updated by the Icahn Group to be current as of the date of the written election made pursuant to Section 1(a)(i)) and the information provided to the Board by the Icahn Designees in the Nomination Documents, are independent under the Board’s independence guidelines, the independence requirements of the New York Stock Exchange (the “NYSE Rules”), and the independence standards applicable to the Company under paragraph (a)(1) of Item 407 of Regulation S-K under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
(ix) that, to the extent permitted by law and the Company’s then-existing insurance coverage, from and after the date that the Icahn Designees are seated as members of the Board, the Icahn Designees shall be covered by the same indemnification and insurance provisions and coverage as are applicable to the individuals that are directors of the Company as of such time, and at such time the Icahn Designees are no longer members of the Board, then the same indemnification and insurance provisions and coverage as are applicable to former directors of the Company as of such time.
(i) notwithstanding the foregoing, the Company acknowledges that for so long as the Icahn Designees are members of the Board, the Icahn Designees 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 such director is a member of such committee.
(b) At all times from the date that the Icahn Designees are seated as members of the Board through the termination of their service as a member of the Board, each of the Icahn Designees shall comply with all written policies, procedures, processes, codes, rules, standards and guidelines applicable to all non-employee Board members and of which the Icahn Designees have been provided written copies in advance (or which have been filed with the Securities and Exchange Commission (“SEC”) or posted on the Company’s website), including the Company’s code of business conduct, corporate policies on ethical business conduct, political contributions, lobbying and other political activities policy, conflicts of interest policy, xxxxxxx xxxxxxx policy, anti-hedging policy and governance policies (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 be entered into pursuant to Section 5 of this Agreement). In addition, each of the Icahn Designees is aware of and shall act in accordance with his or her fiduciary duties with respect to the Company and its stockholders. 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, other than the Icahn Designees in their capacity as members of the Board.
(c) Any provision in this Agreement to the contrary notwithstanding, if at any time after the Effective Datedate hereof, the Icahn Group, together with any Icahn Affiliates (as defined below), ceases collectively to beneficially own (for all purposes in this Agreement, the terms “beneficially own” and “beneficial ownership” shall have the meaning ascribed to such terms as defined in Rule 13d-3 (as in effect from time to time) promulgated by the SEC under the Exchange Act), an aggregate Net Long Position (x) in at least six percent (6%) of the total outstanding (A) common shares of Bausch Health Companies Inc. (“BHC” and such common shares, “BHC Common Shares”), for so long as BHC owns at least 80% of the Osmium Parties, together with each common shares of their respective Affiliates and Associates (not including any Non-Controlled Portfolio the Company (defined below“Common Shares”), or (B) Common Shares, at any other time, in each case as of the date hereof (as adjusted for any stock dividends, combinations, splits, recapitalizations and similar type events), (1) ceases collectively one of the Icahn Designees (or, if applicable, his or her Replacement Designee) shall, and the Icahn Group shall cause such Icahn 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) the Icahn Group shall not have the right to Beneficially Own, an aggregate of replace such Icahn Designee; or (y) in at least 5three percent (3%) of the total outstanding (A) BHC Common Shares, for so long as BHC owns at least 80% of the outstanding Common Stock of the Company as of such date, or (2) materially breaches this Agreement Shares, or (B) Xx. Xxxx materially breaches Common Shares, at any other time, in each case as of the Director Agreementdate hereof (as adjusted for any stock dividends, dated November 18combinations, 2014splits, between him recapitalizations and similar type events), (1) each of the Icahn Designees (or, if applicable, his or her Replacement Designee) shall, and the Icahn Group shall cause such Icahn 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) the Icahn Group shall not have the right to replace such Icahn Designee(s). For clarity, “Common Shares” will include the shares of the entity resulting from the amalgamation of the Company expected to be effected in connection with the consummation of the spin-off transaction by which BHC transfers any or all of its remaining indirect equity interest in the Company to BHC’s then-current shareholders (the “Director AgreementB+L Distribution”)) for which the Common Shares are exchanged pursuant to such amalgamation. The Icahn Group, or any other agreement between him upon request, shall keep the Company regularly apprised of the Net Long Position of the Icahn Group and the Company or any of the laws, New York Stock Exchange rules applicable Icahn Affiliates to the Company’s directors or any other Company Board Requirement (as definedextent that such position differs from the ownership positions publicly reported on the Icahn Schedule 13D and amendments thereto.
Appears in 1 contract
Samples: Director Appointment and Nomination Agreement (Bausch & Lomb Corp)
Board Representation and Board Matters. (a) No later than two business days following the execution of this Agreement, the Company will take all action necessary to appoint Xx. Xxxx to the Company’s Board of Directors (the “Board”) and the Audit Committee of the Company’s Board (the “Audit Committee”). Xx. Xxxx’x continued membership on the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by the Company’s Board.
(b) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having a term expiring on the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”).
(c) Each of the Osmium Parties agree during the Standstill Period (defined below):
(i) not to, and to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for the election of directors with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent annual meeting of stockholders of the Company during the Standstill Period (an “Applicable Meeting”); and
(ii) to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board for election at the 2015 Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval.
(d) As a condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx has provided, concurrently with the execution of this Agreement to the Company an executed consent from to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A
(e) As a further condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx shall have agreed to, as promptly as practicable upon request of the Company after the date hereof, prior to and as a condition to his appointment to the Board, provide to the Company such additional information as the Company is entitled to receive from members of the Board and as is required to be disclosed in the Company’s proxy statement under applicable law.
(f) Notwithstanding the foregoing, if at any time after the Effective Date, (A) the Osmium Parties, together with each of their respective Affiliates and Associates (not including any Non-Controlled Portfolio Company (defined below), (1) ceases collectively to Beneficially Own, an aggregate of at least 5% of the outstanding Common Stock of the Company as of such date, or (2) materially breaches this Agreement Agreement, or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director Agreement”), or any other agreement between him and the Company or any of the laws, New York Stock Exchange rules applicable to the Company’s directors or any other Company Board Requirement (as defineddefined - 2 -
Appears in 1 contract
Samples: Nomination and Support Agreement (Rosetta Stone Inc)
Board Representation and Board Matters. (a) No later than two business days following The Company and the execution Icahn Group agree as follows:
(i) As of the date of this Agreement, the Company will take all action necessary to appoint Xx. Xxxx to the Company’s Board of Directors of the Company (the “Board”) consists of eleven (11) directors, including Xxxxxx X. Xxxxx, Xxxxx Xxxxxxxxxxxx, Xxxx Xxxxxx and the Audit Committee of the Company’s Board Xxxxxx Xxxx (each, an “Icahn Designee” and, collectively, the “Audit Committee”). Xx. Xxxx’x continued membership on the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by the Company’s Board.
(b) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having a term expiring on the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual MeetingIcahn Designees”).
(cii) Each of As a condition to the Osmium Parties Icahn Designees’ (and any Replacement Designees’) appointment to the Board and subsequent nomination for election, the Icahn Designees each agree during (and the Standstill Period (defined below):
(i) not to, and Icahn Group agrees to cause each of their respective Affiliates the Icahn Designees and Associates (each as defined hereinany Replacement Designees) not to, conduct a proxy contest for the election of directors with respect to provide to the Company, prior to any such 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 2015 Annual Meeting of Stockholders 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 “2015 Annual MeetingNomination Documents”) or any other subsequent ). The Icahn Designees are expected to deliver the Nomination Documents for the 2025 annual meeting of stockholders of the Company during (the Standstill Period (an “Applicable 2025 Annual Meeting”); and
(ii) to cause all Voting Securities (in the ordinary course at the same time as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board other nominees for election at the 2015 2025 Annual Meeting.
(iii) Subject to Section 1(c), should any Icahn 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 as a result of not being nominated by the Company for election at an annual meeting of stockholders subsequent to the 2025 Annual Meeting in circumstances where no such obligation to nominate under this Agreement exists), as long as the Icahn Group has not materially breached this Agreement and each Applicable Meeting and all other “routine” matters failed to cure such breach within five (5) business days of written notice from the Company specifying any such breach, the Company shall cause to be added as a member of the Board or as a nominee for election at such meetings supported 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 (an “Acceptable Person”) (and if such proposed designee is not an Acceptable Person, the Icahn Group shall be entitled to continue designating a recommended replacement until such proposed designee is an Acceptable Person) (a “Replacement Designee”); provided, however, that it is understood and Nothing 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 in replacement of any Icahn Designee shall be deemed to be an Icahn Designee for all purposes under this Agreement shall limit and, in the right case of a Replacement Designee for a member of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters includingIcahn Group, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval.
(d) As as a condition to Xx. Xxxx’x appointment being appointed to the Board, Xxshall be required to sign a customary joinder to this Agreement. Xxxx has provided, concurrently with the execution of this Agreement All references to Icahn Designees shall be deemed to include any Replacement Designees to the Company an executed consent from extent applicable.
(iv) For the avoidance of doubt, the Board’s approval of a Replacement Designee pursuant to serve 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 if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company Company, and (C) satisfy the requirements set forth in the form attached hereto Company Policies (as Exhibit A
(e) As a further condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx shall have agreed to, as promptly as practicable upon request of the Company after the date hereof, prior to and as a condition to his appointment to the Board, provide to the Company such additional information as the Company is entitled to receive from members of the Board and as is required to be disclosed in the Company’s proxy statement under applicable law.
(f) Notwithstanding the foregoing, if at any time after the Effective Date, (A) the Osmium Parties, together with each of their respective Affiliates and Associates (not including any Non-Controlled Portfolio Company (defined below), (1) ceases collectively to Beneficially Own, an aggregate of at least 5% in each case as in effect as of the outstanding Common Stock 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 as of such date(collectively clauses (A) through (C), or (2) materially breaches this Agreement , or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director AgreementCriteria”); provided that (i) no new Director Criteria will be adopted that would 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 the Icahn Group retains the right to nominate the Icahn Designees or any other agreement between him and Replacement Designee, as applicable, in each case subject to Section 1(c), without the Company or any approval of a majority of the lawsIcahn Designees, New York Stock Exchange rules applicable to the Company’s directors or any other Company Board Requirement shall not increase the size of the Board above eleven (as defined11) directors.
Appears in 1 contract
Samples: Cooperation Agreement (Southwest Gas Holdings, Inc.)
Board Representation and Board Matters. (a) No later than two The Company and the Salem Group agree as follows:
(i) As long as the Salem Group has not materially breached this Agreement and failed to cure such breach within three (3) business days following of written notice from the execution of this AgreementCompany specifying any such breach, the Company will take all action necessary to appoint Xx. Xxxx to agrees that the Company’s slate of three nominees for election to the Board of Directors of the Company (the “Board”) and at the Audit Committee 2022 annual meeting of stockholders of the Company’s Board Company (the “Audit Committee2022 Annual Meeting”). Xx. Xxxx’x continued membership on the Company Audit Committee is ) will include, subject to his continuing willingness and consent to meet serve, Kxxxx Xxxxxxx (the independence requirements of the Audit Committee as determined from time to time by the Company’s Board.
(b“Independent Director”) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having nominee to the class of Directors being elected at the 2022 Annual Meeting (the “2022 Company Slate”, with a term expiring on at the date 2025 annual meeting of stockholders of the Company’s 2016 Annual Meeting of Stockholders Company (the “2016 2025 Annual Meeting”).
(cii) Each The Company shall use reasonable best efforts to cause the election of the Osmium Parties agree during Independent Director at the Standstill Period 2022 Annual Meeting (defined below):
including by (ix) not torecommending 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 Salem Group agrees not to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for or engage in any solicitation of proxies regarding any matter, including the election of directors directors, with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent 2022 and 2023 annual meeting meetings of stockholders (or special meetings of the Company during the Standstill Period (an “Applicable Meeting”stockholder in which director(s) are to be elected.); and
(iiiii) to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board for election at the 2015 Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval.
(d) As a condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx has provided, concurrently with the execution of this Agreement to the Company an executed consent from to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A
(e) As a further condition to Xx. Xxxx’x appointment to the Board, Xx. Xxxx shall have agreed to, as promptly as practicable upon request of the Company after the date hereof, prior to and That as a condition to the Independent Director’s (and any replacement Independent Director’s) nomination for election, the Independent Director will provide to the Company, in connection with his appointment to nomination and on an on-going basis while serving as a member of the Board, provide to the Company such additional information and materials as the Company is entitled to receive routinely receives from other members of the Board and 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 proxy statement under applicable lawlegal, 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 Salem Group and any biographical affidavits and other filings required by the National Association of Insurance Commissioners and information required in connection with the Company’s insurance business in existing states and future expansion into new states (the “Nomination Documents”).
(fiv) That, subject to Section 1(a)(v) below, should the Independent Director 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 as a result of not being nominated by the Company for election at an annual meeting of stockholders subsequent to the 2023 Annual Meeting, following which the Salem Group’s replacement rights pursuant to this Section 1(a)(iv) shall terminate), as long as the Salem Group has not materially breached this Agreement and failed to cure such breach within three (3) business days of written notice from the Company specifying any such breach, the Company shall cause to be added as a member of the Board or as a nominee on the 2022 Company Slate, as applicable, a replacement independent director that is mutually acceptable to the Board and the Salem Group, who will then be deemed to be the Independent Director hereunder.
(v) For the avoidance of 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 independence requirements of the Nasdaq Capital Market Stock Exchange, (B) have the relevant financial and business experience to be a director of the Company, (C) satisfy the requirements set forth in the Company Policies (as defined below), in each case as in effect as of the 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), the “Director Criteria”); provided that (i) no new Director Criteria will be adopted that would have prevented the Independent Director from becoming a director had such criteria been in effect as of the date of this Agreement, and (ii) the Company acknowledges that the Independent Director satisfies the requirements of Section 1(a)(v)(B).
(vi) Concurrently with the election to the Board of the Independent Director 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, if at 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 time after other director with respect to being permitted to attend (as an observer and without voting rights) any committee meeting regardless of whether the Effective DateIndependent Director is a member of such committee, except in cases where privileged matters will be discussed or reviewed (A) unless the Osmium PartiesIndependent Director commits, together in writing, on terms reasonably satisfactory to the Company, not to share information relating to such matters with each of their respective Affiliates the Salem Group, including its Affiliates, Associates and Associates (not including any Non-Controlled Portfolio Company (defined belowrepresentatives), where the matters under consideration involve an actual conflict of interest between the Company and the Salem 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.
(1b) ceases collectively to Beneficially Own, an aggregate At all times from the date of at least 5% this Agreement through the termination of his service as a member of the outstanding Common Stock 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 (including the stock ownership requirements set forth therein,) Conflict of the Company as Interest Policy, Code of such dateBusiness Conduct and Ethics, or Ixxxxxx Xxxxxxx Policy, and Section 16 and Rule 144 reporting obligations required by law (2) materially breaches this Agreement collectively, or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director AgreementCompany 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 be entered into pursuant to Section 5 of this Agreement). The Salem Group confirms that the Independent Director is not employed by or a consultant of, and is not otherwise an Affiliate or Associate of, any other agreement between him and member of the Salem Group. The Salem Group confirms that the Company or any may require the replacement of the lawsIndependent Director pursuant to Section 1(a)(v) if he or she becomes an employee, New York Stock Exchange rules applicable to consultant, Affiliate or Associate of any member of the Company’s directors or any other Company Board Requirement (as definedSalem Group.
Appears in 1 contract
Board Representation and Board Matters. (a) No later than two business days following The Company and each member of the ABV/Xxxxxx Group agree as follows:
i. upon the execution of this Agreement, each member of the ABV/Xxxxxx Group shall, and shall cause its Affiliates and Associates (as defined herein) (and its Representatives (as defined herein) acting on its behalf), to, (A) irrevocably withdraw its nomination pursuant to the Nomination Letter, and any and all related materials and notices submitted to the Company will in connection therewith, and (B) withdraw its demand for books and records and other materials pursuant to Section 220 of the General Corporation Law of the State of Delaware (“DGCL”), or otherwise, and either return or destroy all documents provided pursuant to such demand and, during the Standstill Period (as defined herein), abstain from making any such demands of the Company pursuant to Section 220 of the DGCL 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;
ii. immediately following the conclusion of the 2022 Annual Meeting, the Board shall take all such action necessary to appoint Xx. Xxxx Xxxxxxx, a director candidate identified by the ABV/Xxxxxx Group (the “Designated Director”), to serve as a member of the Board with a term expiring at the Company’s Board 2023 annual meeting of Directors stockholders (the “Board2023 Annual Meeting”);
iii. if during the Standstill Period (as defined below), the Designated Director is unable to serve on the Board for any reason or the Board determines, in the good faith exercise of the directors’ fiduciary duties, to not re-nominate her for election at the 2023 Annual Meeting, the ABV/Xxxxxx Group shall be entitled to identify a replacement Designated 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 in connection with such replacement right, a “Replacement Director”) who is reasonably acceptable to the Nominating Committee of the Board and the Audit Committee Board (such acceptance not to be unreasonably withheld, and subject to such Replacement Director providing the items and information set forth in Section 1(b) of this Agreement), and such Replacement Director shall be appointed to the Board. It being understood, for the avoidance of doubt, that such Replacement Director shall thereafter be deemed a “Designated Director” for the 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 such person ceasing to be a director, and such person shall be (i) appointed to the Board to serve the unexpired term, if any, of such replaced director, and (ii) appointed to serve on all applicable committees on which such replaced director was a member immediately prior to such director’s resignation or removal, subject to Nasdaq Listing Rules and applicable law. Any Replacement Director designated pursuant to this Section 1(a)(iii) replacing the Designated Director prior to the mailing of the Company’s Board (definitive proxy statement for the “Audit Committee”). Xx. Xxxx’x continued membership on 2023 Annual Meeting shall stand for election at the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by 2023 Annual Meeting together with the Company’s other director nominees;
iv. promptly following the appointment of the Designated Director to the Board, the Board shall take the necessary steps to appoint the Designated Director to at least one committee of the Board, subject to the Designated Director’s qualification to serve on such committee under the Nasdaq Listing Rules and the applicable SEC rules and regulations, and the Designated Director shall serve on at least one Board committee for so long as the Designated Director serves as a member of the Board;
v. following the appointment of the Designated Director, the Designated Director shall have the same rights and limitations with respect to those rights, as any other director with respect to attending meetings of, or receiving information provided to, any Board committees on which the Designated Director is not appointed;
vi. the parties agree that the Board’s power to determine the number of directors and increase or decrease the number of directors is not limited by this Agreement other than the Company must cause the number of directors to be sufficient to permit the appointment of the Designated Director immediately following the conclusion of the 2022 Annual Meeting and, subject to Section 1(b) below, the election of the Designated Director at the 2023 Annual Meeting; and
vii. the Company agrees to nominate the Designated Director for election at the 2023 Annual Meeting and use its reasonable efforts to cause the election of the Designated Director at the 2023 Annual Meeting (including, but not limited to, soliciting on behalf of the Designated Director and recommending that the Company’s stockholders vote in favor of the election of the Designated Director) and otherwise supporting the election of the Designated Director 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.
(b) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having a term expiring on the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”).
(c) Each of the Osmium Parties agree during the Standstill Period (defined below):
(i) not to, and to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for the election of directors with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent annual meeting of stockholders of the Company during the Standstill Period (an “Applicable Meeting”); and
(ii) to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board for election at the 2015 Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval.
(d) As a condition to Xx. Xxxx’x the Designated Director’s appointment as a director of the Company pursuant to Section 1(a)(ii), the Designated Director shall (i) meet the Applicable Criteria, (ii) have provided to the BoardCompany a completed and executed D&O questionnaire (substantially in the form completed by the Company’s incumbent, Xx. Xxxx has providednon-management directors and in the form previously provided to the ABV/Xxxxxx Group by the Company), concurrently with the execution of this Agreement and (iii) have provided to the Company an executed consent from the Designated Director to be named as a nominee in the Company’s proxy statement and to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A
(e) As a further condition to Xx. Xxxx’x the Designated Director’s appointment as a director of the Company pursuant to Section 1(a)(ii), the Board, Xx. Xxxx shall have agreed toDesignated 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, (ii) reasonable information in connection with assessing eligibility, independence and other criteria applicable to all directors or satisfying compliance and legal obligations applicable to all directors, and (iii) such other information as reasonably requested by the Company after from time to time with respect to the date hereofABV/Xxxxxx Group or the Designated Director as required to be provided under the Company’s Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws, prior as each may be amended from time to and time (together, the “Company Organizational Documents”).
(c) Each party acknowledges that the Designated Director must, at all times while serving as a condition to his appointment to member of the Board, provide comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to the Company such additional information as the Company is entitled to receive from members of the all Board and as is required to be disclosed in members, including, without limitation, the Company’s proxy statement under applicable law.
Code of Conduct, securities trading policies, anti-hedging policies, Regulation FD-related policies, director confidentiality policies and other corporate governance policies (feach, a “Policy”) Notwithstanding the foregoing, if at any time after the Effective Date, (A) the Osmium Parties, together with each of their respective Affiliates and Associates (not including any Non-Controlled Portfolio Company (defined below), (1) ceases collectively will be required to Beneficially Own, an aggregate of at least 5% of the outstanding Common Stock of the Company as of such date, or (2) materially breaches this Agreement , or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director Agreement”), or any other agreement between him and the Company or any of the laws, New York Stock Exchange rules applicable strictly adhere to the Company’s policies on confidentiality imposed on all members of the Board. The Company agrees that it will not amend any Policy or the Company Organizational Documents or take any other similar action for the express purpose of disqualifying the Designated Director from service on the Board. The Company agrees to indemnify, compensate and reimburse the Designated Director in the same manner as other directors are indemnified, compensated and reimbursed in connection with their service on the Board or any other Company Board Requirement (as definedcommittee thereof.
Appears in 1 contract
Board Representation and Board Matters. (a) No later than two business days following The Company and each member of the ABV/Xxxxxx Group agree as follows:
(i) upon the execution of this Agreement, each member of the ABV/Xxxxxx Group shall, and shall cause its Affiliates and Associates (as defined herein) (and its Representatives (as defined herein) acting on its behalf), to, (A) irrevocably withdraw its nomination pursuant to the Nomination Letter, and any and all related materials and notices submitted to the Company will in connection therewith, and (B) withdraw its demand for books and records and other materials pursuant to Section 220 of the General Corporation Law of the State of Delaware (“DGCL”), or otherwise, and either return or destroy all documents provided pursuant to such demand and, during the Standstill Period (as defined herein), abstain from making any such demands of the Company pursuant to Section 220 of the DGCL 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;
(ii) immediately following the conclusion of the 2022 Annual Meeting, the Board shall take all such action necessary to appoint Xx. Xxxx Xxxxxxx, a director candidate identified by the ABV/Xxxxxx Group (the “Designated Director”), to serve as a member of the Board with a term expiring at the Company’s Board 2023 annual meeting of Directors stockholders (the “Board2023 Annual Meeting”);
(iii) if during the Standstill Period (as defined below), the Designated Director is unable to serve on the Board for any reason or the Board determines, in the good faith exercise of the directors’ fiduciary duties, to not re-nominate her for election at the 2023 Annual Meeting, the ABV/Xxxxxx Group shall be entitled to identify a replacement Designated 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 in connection with such replacement right, a “Replacement Director”) who is reasonably acceptable to the Nominating Committee of the Board and the Audit Committee Board (such acceptance not to be unreasonably withheld, and subject to such Replacement Director providing the items and information set forth in Section 1(b) of this Agreement), and such Replacement Director shall be appointed to the Board. It being understood, for the avoidance of doubt, that such Replacement Director shall thereafter be deemed a “Designated Director” for the 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 such person ceasing to be a director, and such person shall be (A) appointed to the Board to serve the unexpired term, if any, of such replaced director, and (B) appointed to serve on all applicable committees on which such replaced director was a member immediately prior to such director’s resignation or removal, subject to Nasdaq Listing Rules and applicable law. Any Replacement Director designated pursuant to this Section 1(a)(iii) replacing the Designated Director prior to the mailing of the Company’s Board (definitive proxy statement for the “Audit Committee”). Xx. Xxxx’x continued membership on 2023 Annual Meeting shall stand for election at the Company Audit Committee is subject to his continuing to meet the independence requirements of the Audit Committee as determined from time to time by 2023 Annual Meeting together with the Company’s other director nominees;
(iv) promptly following the appointment of the Designated Director to the Board, the Board shall take the necessary steps to appoint the Designated Director to at least one committee of the Board, subject to the Designated Director’s qualification to serve on such committee under the Nasdaq Listing Rules and the applicable SEC rules and regulations, and the Designated Director shall serve on at least one Board committee for so long as the Designated Director serves as a member of the Board;
(v) following the appointment of the Designated Director, the Designated Director shall have the same rights and limitations with respect to those rights, as any other director with respect to attending meetings of, or receiving information provided to, any Board committees on which the Designated Director is not appointed;
(vi) the parties agree that the Board’s power to determine the number of directors and increase or decrease the number of directors is not limited by this Agreement other than the Company must cause the number of directors to be sufficient to permit the appointment of the Designated Director immediately following the conclusion of the 2022 Annual Meeting and, subject to Section 1(b) below, the election of the Designated Director at the 2023 Annual Meeting; and
(vii) the Company agrees to nominate the Designated Director for election at the 2023 Annual Meeting and use its reasonable efforts to cause the election of the Designated Director at the 2023 Annual Meeting (including, but not limited to, soliciting on behalf of the Designated Director and recommending that the Company’s stockholders vote in favor of the election of the Designated Director) and otherwise supporting the election of the Designated Director 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.
(b) Subject to the terms of this Agreement, Xx. Xxxx will be appointed to the Board as a Class I Director having a term expiring on the date of the Company’s 2016 Annual Meeting of Stockholders (the “2016 Annual Meeting”).
(c) Each of the Osmium Parties agree during the Standstill Period (defined below):
(i) not to, and to cause each of their respective Affiliates and Associates (each as defined herein) not to, conduct a proxy contest for the election of directors with respect to the Company’s 2015 Annual Meeting of Stockholders (the “2015 Annual Meeting”) or any other subsequent annual meeting of stockholders of the Company during the Standstill Period (an “Applicable Meeting”); and
(ii) to cause all Voting Securities (as defined herein) owned by the Osmium Parties and their Affiliates and Associates, directly or indirectly, whether owned of record or Beneficially Owned (as defined in herein) to be voted for, or to abstain from voting for, all of the directors nominated by the Board for election at the 2015 Annual Meeting and each Applicable Meeting and all other “routine” matters at such meetings supported by the Board; and Nothing in this Agreement shall limit the right of the Osmium Parties to vote all Voting Securities in the sole and absolute discretion of the Osmium Party for “non-routine” matters including, without limitation, matters related to the implementation of takeover defenses, amendments to the Company’s articles of incorporation or bylaws that diminish stockholder rights, strategic transactions or new or amended incentive compensation plans submitted for stockholder approval.
(d) As a condition to Xx. Xxxx’x the Designated Director’s appointment as a director of the Company pursuant to Section 1(a)(ii), the Designated Director shall (i) meet the Applicable Criteria, (ii) have provided to the BoardCompany a completed and executed D&O questionnaire (substantially in the form completed by the Company’s incumbent, Xx. Xxxx has providednon-management directors and in the form previously provided to the ABV/Xxxxxx Group by the Company), concurrently with the execution of this Agreement and (iii) have provided to the Company an executed consent from the Designated Director to be named as a nominee in the Company’s proxy statement and to serve as a director if so elected, completed D&O Questionnaire in the form provided to Xx. Xxxx, and an executed irrevocable resignation as director of the Company in the form attached hereto as Exhibit A
(e) As a further condition to Xx. Xxxx’x the Designated Director’s appointment as a director of the Company pursuant to Section 1(a)(ii), the Board, Xx. Xxxx shall have agreed toDesignated Director shall, as promptly as practicable upon request of the Company, provide (A) 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, (B) reasonable information in connection with assessing eligibility, independence and other criteria applicable to all directors or satisfying compliance and legal obligations applicable to all directors, and (C) such other information as reasonably requested by the Company after from time to time with respect to the date hereofABV/Xxxxxx Group or the Designated Director as required to be provided under the Company’s Amended and Restated Certificate of Incorporation and Second Amended and Restated Bylaws, prior as each may be amended from time to and time (together, the “Company Organizational Documents”).
(c) Each party acknowledges that the Designated Director must, at all times while serving as a condition to his appointment to member of the Board, provide comply with all policies, procedures, processes, codes, rules, standards and guidelines applicable to the Company such additional information as the Company is entitled to receive from members of the all Board and as is required to be disclosed in members, including, without limitation, the Company’s proxy statement under applicable law.
Code of Conduct, securities trading policies, anti-hedging policies, Regulation FD-related policies, director confidentiality policies and other corporate governance policies (feach, a “Policy”) Notwithstanding the foregoing, if at any time after the Effective Date, (A) the Osmium Parties, together with each of their respective Affiliates and Associates (not including any Non-Controlled Portfolio Company (defined below), (1) ceases collectively will be required to Beneficially Own, an aggregate of at least 5% of the outstanding Common Stock of the Company as of such date, or (2) materially breaches this Agreement , or (B) Xx. Xxxx materially breaches the Director Agreement, dated November 18, 2014, between him and the Company (the “Director Agreement”), or any other agreement between him and the Company or any of the laws, New York Stock Exchange rules applicable strictly adhere to the Company’s policies on confidentiality imposed on all members of the Board. The Company agrees that it will not amend any Policy or the Company Organizational Documents or take any other similar action for the express purpose of disqualifying the Designated Director from service on the Board. The Company agrees to indemnify, compensate and reimburse the Designated Director in the same manner as other directors are indemnified, compensated and reimbursed in connection with their service on the Board or any other Company Board Requirement (as definedcommittee thereof.
Appears in 1 contract
