Board Representation. (a) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors of the Company (the “Board of Directors”) to include in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management; (b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, three (3) persons designated at any time and from time to time by Apollo Management; (c) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by such number that will cause Apollo Designees to constitute a majority of the positions on the Board of Directors, and the Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with Apollo Designees and shall, at the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to the four (4) Apollo Designees referred to in clause (a)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (c), the Company shall not be required to take any action which it reasonably believes is unlawful, and the Company shall be allowed to take any action the omission of which it reasonably believes would be unlawful. (d) Until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, vacancies arising through the death, resignation or removal of an Apollo Designee may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal. (e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors pursuant to Section 2(c) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal. (f) Notwithstanding the provisions of this Section 2, Apollo Management shall not be entitled to designate any person as a nominee to the Board of Directors if the Company receives a written opinion of its outside legal counsel of national reputation that such person would not be qualified under any applicable law, rule or regulation, rule of the New York Stock Exchange or the Amended and Restated By-Laws of the Corporation (the “By-Laws”) to serve as a director of the Company. Other than with respect to the issue set forth in the preceding sentence, the Company shall not have the right to object to any Apollo Designee. The Company shall notify Apollo Management in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors (and such notice shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreement.
Appears in 3 contracts
Samples: Nominating Agreement, Nominating Agreement (Rexnord Corp), Nominating Agreement (Rexnord Corp)
Board Representation. (a) Until such time as Apollo no longer beneficially owns For so long Investor Holdco has beneficial ownership of less than 50% but at least 50.135% of the total aggregate number of shares of Common Stock outstanding at any timeCompany Shares then outstanding, Investor Holdco shall have the Company shall support the nomination of, and cause right to designate to the Board of Directors a number of individuals who satisfy the Company (the “Board of Directors”) Director Requirements equal to include in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management;
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3one director fewer than 50% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, three (3) persons designated at any time and from time to time by Apollo Management;
(c) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by such number that will cause Apollo Designees at any time (rounded up to constitute a majority the next whole number).
(b) For so long as any Holder has beneficial ownership of less than 35% but at least 20% of the positions on aggregate number of Company Shares then outstanding, such Holder shall have the Board of Directors, and the Company shall cause right to designate to the Board of Directors promptly a number of individuals who satisfy the Director Requirements equal to fill the vacancies created by such increase with Apollo Designees and shall, at greater of (A) three or (B) 25% of the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause size of the Board of Directors at any time (rounded up to include the next whole number).
(c) For so long as any Holder has beneficial ownership of less than 20% but at least 15% of the aggregate number of Company Shares then outstanding, such Holder shall have the right to designate to the Board of Directors a number of individuals who satisfy the Director Requirements equal to the greater of (A) two or (B) 15% of the size of the Board of Directors at any time (rounded up to the next whole number).
(d) For so long as any Holder has beneficial ownership of less than 15% but at least 10% of the aggregate number of Company Shares then outstanding, such Holder shall have the right to designate to the Board of Directors one individual who satisfies the Director Requirements.
(e) For so long as a Holder is entitled to designate any individuals to the Board of Directors pursuant to this Section 2.01, the Company shall take all action reasonably available to it to cause such individual(s) (or any replacement designated by such Holder) to be included in the slate of nominees recommended by the Board of Directors to the Company’s stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to directors at each annual meeting of the four (4) Apollo Designees referred to in clause (a)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (c), stockholders of the Company shall not be required to take (and/or in connection with any action which it reasonably believes is unlawful, election by written consent) and the Company shall use the same efforts to cause the election of such nominee(s) as it uses to cause other nominees recommended by the Board of Directors to be allowed to take any action the omission of which it reasonably believes would be unlawful.
(d) Until such time as Apollo no longer beneficially owns at least 33 1/3% elected, including soliciting proxies in favor of the total number election of shares of Common Stock outstanding at any time, vacancies arising through the death, resignation or removal of an Apollo Designee may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors pursuant to Section 2(c) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removalnominee(s).
(f) Notwithstanding Until immediately prior to the provisions time at which Investor Holdco ceases to collectively have beneficial ownership of this Section 2at least 50% of the aggregate number of Company Shares then outstanding, Apollo Management Investor Holdco shall not be entitled vote its Company Shares to designate any person set the size of the Board of Directors at 11 individuals. For so long as a nominee Investor Holdco has beneficial ownership of less than 50% but at least 35% of the aggregate number of Company Shares then outstanding, Investor Holdco shall, unless otherwise determined by the management board of Investor Holdco in accordance with the operating agreement of Investor Holdco, cause its individuals designated to the Board of Directors if to vote in favor of maintaining the Company receives a written opinion of its outside legal counsel of national reputation that such person would not be qualified under any applicable law, rule or regulation, rule size of the New York Stock Exchange Board of Directors at 11 individuals.
(g) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of a director nominated or designated pursuant to this Section 2.01, or in the Amended event of the failure of any such nominee to be elected, the Holder who nominated or designated such director shall have the right to designate a replacement who satisfies the Director Requirements to fill such vacancy. The Company shall take all action reasonably available to it to cause such vacancy to be filled by the replacement so designated, and, to the extent permitted under the Certificate of Incorporation and Restated By-Laws of the Corporation Company then in effect, the Board of Directors shall promptly elect such designee to the Board of Directors.
(h) As of and after the Effective Date, each of the Cerberus Representative, Trican and the Xxxxx Representative, acting on behalf of the Xxxxx Parties beneficially owning (directly or through Investor Holdco) in excess of 50% of the Company Shares then beneficially owned (directly or through Investor Holdco) by the Xxxxx Parties, respectively, shall be entitled to, at its option, designate up to two individuals in the capacity of non-voting observers (the “By-LawsObservers”) to serve the Board of Directors. The appointment and removal of any Observer shall be by written notice to the Board of Directors.
(i) Notwithstanding anything to the contrary, following the Effective Date: (A) if the Xxxxx Parties as a director group, directly or indirectly though Investor Holdco, cease to beneficially own at least 50% of the Company. Other than with respect to Company Shares beneficially owned by the issue set forth in Xxxxx Parties as of the preceding sentenceEffective Date, the Xxxxx Parties shall no longer have any right to appoint Observers under Section 2.01(h) and shall cause such individuals designated by them to immediately resign; and (B) if Trican, directly or indirectly though Investor Holdco, ceases to beneficially own at least 25% of the Company Shares beneficially owned by Trican as of the Effective Date, Trican shall not no longer have any right to appoint Observers under Section 2.01(h) and shall cause such individuals designated by them to immediately resign.
(j) An Observer may attend any meeting of the Board of Directors, provided, that no Observer shall have the right to object vote or otherwise participate in the Board of Directors meeting in any way other than to observe any Apollo Designeeapplicable meeting of the Board of Directors. Observers shall be provided advance notice of each meeting of the Board of Directors in the same manner and at the same time as the other members of the Board of Directors and shall be given copies of all documents, materials and other information as and when given to other members of the Board of Directors, provided that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board of Directors. Notwithstanding the foregoing, the Observer shall be excluded from attending any meeting of the Board of Directors or receiving any materials to the extent necessary to preserve attorney-client privilege, to safeguard highly proprietary or classified information, in the case of any conflict of interest involving such Observer or as otherwise deemed necessary or advisable by the Board of Directors. The Company Board of Directors or any committee thereof shall notify Apollo Management have the right to exclude an Observer from any meeting or portion thereof in writing the sole discretion of a majority of the date on which proxy materials are expected to be mailed by the Company members in connection with an election of directors (and attendance at such notice meeting. Each Observer shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreementnatural person.
Appears in 2 contracts
Samples: Shareholder Agreements (Keane Group, Inc.), Stockholders' Agreement (Keane Group, Inc.)
Board Representation. (a) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, :
(i) the Company shall support the nomination of, and cause the Board of Directors of the Company (the “Board of Directors”) to include in the slate of nominees recommended to the Company’s stockholders for election as directorsdirectors of the Company, four five (45) persons designated at any time and from time to time by Apollo Management;; and
(ii) upon written request from Apollo Management, the Company shall take promptly all action as shall be necessary to, and shall cause the Board of Directors to, increase the size of the Board of Directors by such number that, when taken together with the five (5) Apollo Designees designated pursuant to clause (a)(i) above, constitutes a majority of the positions on the Board of Directors. The Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with persons designated by Apollo Management and, at the annual stockholder meeting following such written request from Apollo Management, shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for election as directors of the Company, persons designated by Apollo Management to fill such vacancies.
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3% %, of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for election as directorsdirectors of the Company, three four (34) persons designated at any time and from time to time by Apollo Management;
(c) Until such time as Apollo no longer beneficially owns (i) in the case of an Apollo Designee designated in connection with an increase in the number of directors pursuant to clause (a)(ii) above, at least 50.1% of the total number of shares of Common Stock outstanding at any time%, upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by such number that will cause Apollo Designees to constitute a majority of the positions on the Board of Directors, and the Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with Apollo Designees and shall, at the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause the Board of Directors to include or (ii) in the slate case of nominees recommended to stockholders for election as directorsany other Apollo Designee, Apollo Designees to fill such vacancies (in addition to the four (4) Apollo Designees referred to in clause (a)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (c), the Company shall not be required to take any action which it reasonably believes is unlawful, and the Company shall be allowed to take any action the omission of which it reasonably believes would be unlawful.
(d) Until such time as Apollo no longer beneficially owns at least 33 1/3% %, of the total number of shares of Common Stock outstanding at any time, vacancies arising through the death, resignation or removal of an such Apollo Designee may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors pursuant to Section 2(c) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(fd) Notwithstanding the provisions of this Section 2, Apollo Management shall not be entitled to designate any person as a nominee to the Board of Directors if the Company receives a written opinion of its outside legal counsel, which shall be a counsel of national reputation reputation, that such person would not be qualified under any applicable law, rule or regulation, rule of the New York Stock Exchange or the Amended and Restated By-Laws of the Corporation (the “By-Laws”) to serve as a director of the Company. Other than with respect to for the issue reasons set forth in the preceding sentence, the Company shall not have the right to object to any Apollo Designee. The Company shall notify Apollo Management in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors (and such notice shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee pursuant to this Section 2(d) sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreement. Notwithstanding the provisions of this Section 2, the Company shall not be required to take any action which it reasonably believes is unlawful, and the Company shall be allowed to take any action the omission of which it reasonably believes would be unlawful.
Appears in 2 contracts
Samples: Nominating Agreement, Nominating Agreement (CKE Inc.)
Board Representation. (a) Until such time as Apollo no longer beneficially owns For so long Investor Holdco has beneficial ownership of less than 50% but at least 50.135% of the total aggregate number of shares of Common Stock outstanding at any timeCompany Shares then outstanding, Investor Holdco shall have the Company shall support the nomination of, and cause right to designate to the Board of Directors a number of individuals who satisfy the Company (the “Board of Directors”) Director Requirements equal to include in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management;
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3one director fewer than 50% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, three (3) persons designated at any time and from time to time by Apollo Management;
(c) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by such number that will cause Apollo Designees at any time (rounded up to constitute a majority the next whole number).
(b) For so long as any Holder has beneficial ownership of less than 35% but at least 20% of the positions on aggregate number of Company Shares then outstanding, such Holder shall have the Board of Directors, and the Company shall cause right to designate to the Board of Directors promptly a number of individuals who satisfy the Director Requirements equal to fill the vacancies created by such increase with Apollo Designees and shall, at greater of (A) three or (B) 25% of the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause size of the Board of Directors at any time (rounded up to include the next whole number).
(c) For so long as any Holder has beneficial ownership of less than 20% but at least 15% of the aggregate number of Company Shares then outstanding, such Holder shall have the right to designate to the Board of Directors a number of individuals who satisfy the Director Requirements equal to the greater of (A) two or (B) 15% of the size of the Board of Directors at any time (rounded up to the next whole number).
(d) For so long as any Holder has beneficial ownership of less than 15% but at least 10% of the aggregate number of Company Shares then outstanding, such Holder shall have the right to designate to the Board of Directors one individual who satisfies the Director Requirements.
(e) For so long as a Holder is entitled to designate any individuals to the Board of Directors pursuant to this Section 2.01, the Company shall take all action reasonably available to it to cause such individual(s) (or any replacement designated by such Holder) to be included in the slate of nominees recommended by the Board of Directors to the Company’s stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to directors at each annual meeting of the four (4) Apollo Designees referred to in clause (a)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (c), stockholders of the Company shall not be required to take (and/or in connection with any action which it reasonably believes is unlawful, election by written consent) and the Company shall use the same efforts to cause the election of such nominee(s) as it uses to cause other nominees recommended by the Board of Directors to be allowed to take any action the omission of which it reasonably believes would be unlawful.
(d) Until such time as Apollo no longer beneficially owns at least 33 1/3% elected, including soliciting proxies in favor of the total number election of shares of Common Stock outstanding at any time, vacancies arising through the death, resignation or removal of an Apollo Designee may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors pursuant to Section 2(c) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removalnominee(s).
(f) Notwithstanding Until immediately prior to the provisions time at which Investor Holdco ceases to collectively have beneficial ownership of this Section 2at least 50% of the aggregate number of Company Shares then outstanding, Apollo Management Investor Holdco shall not be entitled vote its Company Shares to designate any person set the size of the Board of Directors at 11 individuals. For so long as a nominee Investor Holdco has beneficial ownership of less than 50% but at least 35% of the aggregate number of Company Shares then outstanding, Investor Holdco shall, unless otherwise determined by the management board of Investor Holdco in accordance with the operating agreement of Investor Holdco, cause its individuals designated to the Board of Directors if to vote in favor of maintaining the Company receives a written opinion of its outside legal counsel of national reputation that such person would not be qualified under any applicable law, rule or regulation, rule size of the New York Stock Exchange Board of Directors at 11 individuals.
(g) In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of a director nominated or designated pursuant to this Section 2.01, or in the Amended event of the failure of any such nominee to be elected, the Holder who nominated or designated such director shall have the right to designate a replacement who satisfies the Director Requirements to fill such vacancy. The Company shall take all action reasonably available to it to cause such vacancy to be filled by the replacement so designated, and, to the extent permitted under the Certificate of Incorporation and Restated By-Laws of the Corporation Company then in effect, the Board of Directors shall promptly elect such designee to the Board of Directors.
(h) As of and after the Effective Date, each of the Cerberus Representative, Trican and the Xxxxx Representative, acting on behalf of the Xxxxx Parties beneficially owning (directly or through Investor Holdco) in excess of 50% of the Company Shares then beneficially owned (directly or through Investor Holdco) by the Xxxxx Parties, respectively, shall be entitled to, at its option, designate up to two individuals in the capacity of non-voting observers (each, an “By-LawsObserver”) to serve the Board of Directors. As of and after the Effective Date, RockPile Holdco shall be entitled to at its option (i) designate one individual in the capacity of Observer to the Board of Directors or (ii) assign its right to designate an Observer to the Board of Directors to the White Deer Holder in connection with a distribution of Company Shares by RockPile Holdco to the White Deer Holder. The appointment and removal of any Observer shall be by written notice to the Board of Directors.
(i) Notwithstanding anything to the contrary, following the Effective Date: (A) if the Xxxxx Parties as a director group, directly or indirectly though Investor Holdco, cease to beneficially own at least 50% of the CompanyCompany Shares beneficially owned by the Xxxxx Parties as of the Effective Date, the Xxxxx Parties shall no longer have any right to appoint Observers under Section 2.01(h) and shall cause such individuals designated by them to immediately resign; (B) if Trican, directly or indirectly though Investor Holdco, ceases to beneficially own at least 25% of the Company Shares beneficially owned by Trican as of the Effective Date, Trican shall no longer have any right to appoint Observers under Section 2.01(h) and shall cause such individuals designated by them to immediately resign; and (C) upon the earlier of (i) the RockPile Holders ceasing to beneficially own at least 50% of the Company Shares beneficially owned by RockPile Holders as of the Effective Date and (ii) an Observer Termination Event, RockPile Holdco or the White Deer Holder, as applicable, shall no longer have any right to appoint Observers under Section 2.01(g) and shall cause such individuals designated by them to immediately resign. Other than with respect RockPile Holdco or the White Deer Holder, as applicable, shall provide prior written notice to the issue set forth in Company of any event that constitutes, or would reasonably be expected to constitute, an Observer Termination Event.
(j) An Observer may attend any meeting of the preceding sentenceBoard of Directors, the Company provided, that no Observer shall not have the right to object vote or otherwise participate in the Board of Directors meeting in any way other than to observe any Apollo Designeeapplicable meeting of the Board of Directors. Observers shall be provided advance notice of each meeting of the Board of Directors in the same manner and at the same time as the other members of the Board of Directors and shall be given copies of all documents, materials and other information as and when given to other members of the Board of Directors, provided that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board of Directors. Notwithstanding the foregoing, the Observer shall be excluded from attending any meeting of the Board of Directors or receiving any materials to the extent necessary to preserve attorney-client privilege, to safeguard highly proprietary or classified information, in the case of any conflict of interest involving such Observer or as otherwise deemed necessary or advisable by the Board of Directors. The Company Board of Directors or any committee thereof shall notify Apollo Management have the right to exclude an Observer from any meeting or portion thereof in writing the sole discretion of a majority of the date on which proxy materials are expected to be mailed by the Company members in connection with an election of directors (and attendance at such notice meeting. Each Observer shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreementnatural person.
Appears in 2 contracts
Samples: Stockholders’ Agreement (Keane Group, Inc.), Purchase Agreement (Keane Group, Inc.)
Board Representation. (a) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors of the Company (the “Board of Directors”x) to include in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management;
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors of the Company (the “Board of Directors”)) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, three four persons (3the “Apollo Designees”) persons designated at any time and from time to time by Apollo Management IV, L.P., a Delaware limited partnership (“Apollo Management”);
(cb) Until such time as (x) Apollo no longer beneficially owns at least 50.150% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors of the Company (the “Board of Directors”)) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo:
(i) the Company shall not, and shall cause the Board of Directors not to, allow the size of the Board of Directors to be less than four or more than nine members without the prior written consent of Apollo Management; and
(ii) upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by the greater of (a) two, or (b) such greater number that will cause Apollo Designees to constitute a majority of the positions on the Board of Directors, and the Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with Apollo Designees and shall, at the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to the four (4) Apollo Designees referred to in clause (aii)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (cb), the Company shall not be required to take any action which it reasonably believes is unlawful, and the Company shall be allowed to take any action the omission of which it reasonably believes would be unlawful.
(dc) Until such time as (x) Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo, vacancies arising through the death, resignation or removal of an Apollo Designee nominated by Apollo Management to the Board of Directors pursuant to Section 2(a) hereto may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(d) Until such time as (x) Apollo no longer beneficially owns at least 50% of the total number of shares of Common Stock outstanding at any time and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common stock to a person that is not an Affiliate of Apollo, vacancies arising from an increase in the number of directors pursuant to Section 2(b)(ii) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors this Agreement is terminated pursuant to Section 2(c3(n) hereof may be filled only by hereof, the Company shall not amend its Organizational Documents in a majority manner that adversely affects the rights of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removalhereunder.
(f) Notwithstanding the provisions of this Section 2, Apollo Management shall not be entitled to designate any person as a nominee to the Board of Directors if the Company receives a written opinion of its outside legal counsel of national reputation that such person would not be qualified under any applicable law, rule or regulation, rule of the New York Stock Exchange or the Amended and Restated By-Laws of the Corporation (the “By-Laws”) regulation to serve as a director of the Company. Other than with respect to the issue set forth in the preceding sentence, neither the Company nor any other stockholder shall not have the right to object to any Apollo Designee. The Company shall notify Apollo Management in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors (and such notice shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Nominating Agreement (Educate Inc)
Board Representation. (a) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors of the Company (the “Board of Directors”x) to include in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management;
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors of the Company (the “Board of Directors”)) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, three four persons (3the “Apollo Designees”) persons designated at any time and from time to time by Apollo Management IV, L.P., a Delaware limited partnership (“Apollo Management”);
(cb) Until such time as (x) Apollo no longer beneficially owns at least 50.150% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors of the Company (the “Board of Directors”)) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo:
(i) the Company shall not, and shall cause the Board of Directors not to, allow the size of the Board of Directors to be less than four or more than nine members without the prior written consent of Apollo Management; and
(ii) upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary to, and shall cause the Board of Directors of the Company to, increase the size of the Board of Directors by the greater of (a) two, or (b) such greater number that will cause Apollo Designees to constitute a majority of the positions on the Board of Directors, and the Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with Apollo Designees and shall, at the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to the four (4) Apollo Designees referred to in clause (aii)); provided, however, that, notwithstanding the foregoing subsections (a), (b) and (cb), the Company shall not be required to take any action which it reasonably believes is unlawful, and the Company shall be allowed to take any action the omission of which it reasonably believes would be unlawful.
(dc) Until such time as (x) Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo, vacancies arising through the death, resignation or removal of an Apollo Designee nominated by Apollo Management to the Board of Directors pursuant to Section 2(a) hereto may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(d) Until such time as (x) Apollo no longer beneficially owns at least 50% of the total number of shares of Common Stock outstanding at any time and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in their capacity as a member of the Board of Directors) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common stock to a person that is not an Affiliate of Apollo, vacancies arising from an increase in the number of directors pursuant to Section 2(b)(ii) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as (x) Apollo no longer beneficially owns at least 50.133 1/3% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase and (y) Apollo (excluding any individuals who own shares of Common Stock directly that were purchased by them or were obtained upon the exercise of options granted to them in the number of directors pursuant to Section 2(c) hereof may be filled only by their capacity as a majority member of the directors nominated by Board of Directors) has, subsequent to the IPO (and any related overallotment option), sold at least one share of Common Stock to a person that is not an Affiliate of Apollo, each Apollo Management then in office Designee shall have the right to observe all meetings of the Compensation Committee and the directors so chosen Nominating and Corporate Governance Committee of the Board of Directors; provided, however, that each such Committee, to the extent determined by the Committee to be necessary for the fulfillment of its duties under its charter, may elect to convene a meeting at which Apollo Designees who are not otherwise members of such Committee shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removalnot be permitted to observe.
(f) Notwithstanding the provisions of this Section 2, Apollo Management shall not be entitled to designate any person as a nominee to the Board of Directors if the Company receives a written opinion of its outside legal counsel of national reputation that such person would not be qualified under any applicable law, rule or regulation, rule of the New York Stock Exchange or the Amended and Restated By-Laws of the Corporation (the “By-Laws”) regulation to serve as a director of the Company. Other than with respect to the issue set forth in the preceding sentence, neither the Company nor any other stockholder shall not have the right to object to any Apollo Designee. The Company shall notify Apollo Management in writing of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors (and such notice shall be delivered to Apollo Management at least 30 days prior to such expected mailing date). The Company shall notify Apollo Management of any objection to an Apollo Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management to propose a replacement Apollo Designee in accordance with the terms of this Agreement.
Appears in 1 contract
Samples: Nominating Agreement (Educate Inc)
Board Representation. (a) Until such time as Apollo no longer beneficially owns at least 50.1the earlier to occur of the tenth anniversary of the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement and the date on which the Apollo/Blackstone Shareholders own, collectively, less than 20% of the total number Apollo/Blackstone Shares (the "Shareholder Designee Period"), the Board of Directors shall consist of no more than thirteen (13) directors during the Shareholder Designee Period. For so long as the Apollo/Blackstone Shareholders are entitled to at least two Shareholder Designees under this Agreement, the Apollo/Blackstone Shareholders shall be entitled to have one Shareholder Designee serve on each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as set forth below with respect to the Nominating Committee and other than such committees on which membership of a Shareholder Designee is prohibited by applicable law or by the rules of the New York Stock Exchange.
(b) Immediately following the purchase of shares of Common Senior Preferred Stock outstanding at any timepursuant to the Preferred Stock Purchase Agreement, the Company shall will cause David Blitzer to be elected or appointed to the Board of Directors. Xx xxx xxxxx during the Shareholder Designee Period, the Company agrees, subject to Section 3.1(d), to support the nomination of, and cause the Company's Nominating Committee (as defined herein) shall recommend to the Board of Directors of the Company (the “Board of Directors”) to include inclusion in the slate of nominees recommended to stockholders for election as directors, four (4) persons designated at any time and from time to time by Apollo Management;
(b) After such time as Apollo no longer beneficially owns at least 50.1%, but until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders shareholders for election as directorsdirectors at each annual meeting of shareholders of the Company: (i) no more than two persons who are executive officers of the Company ("Management Directors"), three (3ii) persons designated at any time and from time to time by Apollo Management;
(cA) Until such time five Shareholder Designees, so long as Apollo no longer the Apollo/Blackstone Shareholders beneficially owns at least 50.1own 80% or more of the Apollo/Blackstone Shares, (B) four Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 60% or more but less than 80% of the total number Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of shares the Apollo/Blackstone Shares, (D) two Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 20% or more but less than 40% of Common Stock outstanding at any time, upon written request from Apollo Management, the Company promptly shall take all action as shall be necessary toApollo/Blackstone Shares, and shall cause (E) one Shareholder Designee, so long as the Board of Directors Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of the Company to, increase the size of the Board of Directors by such number that will cause Apollo Designees to constitute Apollo/Blackstone Shares (each a majority of the positions on the Board of Directors, and the Company shall cause the Board of Directors promptly to fill the vacancies created by such increase with Apollo Designees and shall, at the annual stockholder meeting following such written request from Apollo Management, support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to stockholders for election as directors, Apollo Designees to fill such vacancies (in addition to the four (4) Apollo Designees referred to in clause (a)"Beneficial Ownership Threshold"); provided, however, that, notwithstanding that if at any time as a result of the foregoing subsections Company's issuance of Voting Securities the Shareholders beneficially own 9% or less of the Actual Voting Power (athe "Actual Voting Power Threshold"), the Apollo/Blackstone Shareholders shall be entitled to no more than three Shareholder Designees (beven if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater number of Shareholder Designees pursuant to clauses (A) through (E) above), and (iii) such other persons, each of whom is (A) recommended by the Nominating Committee and (B) not an employee or officer of or outside counsel to the Company or a partner, employee, director, officer, affiliate or associate (as defined in Rule 12b-2 under the Exchange Act) of any Shareholder or any affiliate of a Shareholder or as to which the Shareholders or their affiliates own at least ten percent of the voting equity securities ("Unaffiliated Directors"). If any vacancy (whether by death, retirement, disqualification, removal from office or other cause, or by increase in number of directors) occurs prior to a meeting of the Company's stockholders, the Board (i) may appoint a member of management to fill a vacancy caused by a Management Director ceasing to serve as a director, (ii) shall appoint, subject to Section 3.1(d), a person designated by the Apollo/Blackstone Shareholders to fill a vacancy created by a Shareholder Designee ceasing to serve as a director (except as a result of the reduction of the number of Shareholder Designees entitled to be included on the Board of Directors by reason of a decrease in the Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or by reasons of a decrease in the Shareholders' beneficial ownership of Voting Securities below the Actual Voting Power Threshold), and (iii) may appoint a person who qualifies as an Unaffiliated Director and is recommended by the Nominating Committee pursuant to the procedures set forth in the following paragraph to fill a vacancy created by an Unaffiliated Director ceasing to serve as a director (provided, however, that in the case of a vacancy relating to an Unaffiliated Director, if a majority of the Nominating Committee is unable to recommend a replacement, then the Board seat with respect to this vacancy shall remain vacant), and each such person shall be a Management Designee, Shareholder Designee or Unaffiliated Director, as the case may be, for purposes of this Agreement. At all times during the Shareholder Designee Period, Unaffiliated Directors shall be designated exclusively by a majority of a nominating committee (the "Nominating Committee"), which shall at all times during the Shareholder Designee Period consist of not more than four persons, two of whom shall be Shareholder Designees (or such lesser number of Shareholder Designees as then serves on the Board of Directors) and two of whom shall be either Management Directors or Unaffiliated Directors. If the Nominating Committee is unable to recommend one or more persons to serve as Unaffiliated Directors (cexcept with respect to any vacancy created by an Unaffiliated Director ceasing to serve as such), then the Board of Directors shall nominate and recommend for election by stockholders an Unaffiliated Director then serving on the Board of Directors. Notwithstanding the foregoing, if the Apollo/Blackstone Shareholders beneficially own less than 50% of the Apollo/Blackstone Shares, the Nominating Committee shall be comprised of individuals only one of whom is a Shareholder Designee. The foregoing provisions shall be effected pursuant to an amendment to the Company's Bylaws in a form reasonably acceptable to the parties to this Agreement, which shall not be further amended by the Board of Directors during the Shareholder Designee Period. Notwithstanding the foregoing, the Company shall not have no obligation to support the nomination, recommendation or election of any Shareholder Designee pursuant to this Section 3.1(b) or any other obligation under this Section 3.1 if the Apollo/Blackstone Shareholders are in breach of any material provision of this Agreement.
(c) Upon any decrease in Apollo/Blackstone Shareholders' beneficial ownership of Apollo/Blackstone Shares below any Beneficial Ownership Threshold or any decrease in the Shareholders beneficial ownership of Voting Securities below the Actual Voting Power Threshold, the Apollo/Blackstone Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be required equal to take the number of Shareholder Designees which the Apollo/Blackstone Shareholders would then be entitled to designate under Section 3.1(b). Upon termination of the Shareholder Designee Period, the Apollo/Blackstone Shareholders shall promptly cause all of the Shareholder Designees to offer to resign immediately from the Board of Directors and any action which it reasonably believes is unlawful, committees thereof and the Company Company's obligations under this Section 3.1 shall be allowed to take any action the omission of which it reasonably believes would be unlawfulterminate.
(d) Until such time as Apollo no longer beneficially owns at least 33 1/3% of the total number of shares of Common Stock outstanding at any time, vacancies arising through the death, resignation or removal of an Apollo Designee may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(e) Until such time as Apollo no longer beneficially owns at least 50.1% of the total number of shares of Common Stock outstanding at any time, vacancies arising from an increase in the number of directors pursuant to Section 2(c) hereof may be filled only by a majority of the directors nominated by Apollo Management then in office and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and qualified, or until their earlier death, resignation or removal.
(f) Notwithstanding the provisions of this Section 23.1, Apollo Management the Apollo/Blackstone Shareholders shall not be entitled to designate any person as a nominee to the Company's Board of Directors if (or any committee thereof) in the event that the Company receives a written opinion of its outside legal counsel of national reputation that such person a Shareholder Designee would not be qualified under any applicable law, rule or regulation, rule of the New York Stock Exchange or the Amended and Restated By-Laws of the Corporation (the “By-Laws”) regulation to serve as a director of the Company. Other than with respect Company or if the Company objects to a Shareholder Designee because such Shareholder Designee has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D or such person is currently the target of an investigation by any governmental authority or agency relating to felonious criminal activity or is subject to any order, decree, or judgment of any court or agency prohibiting service as a director of any public company or providing investment or financial advisory services and, in any such event, the Apollo/Blackstone Shareholders shall withdraw the designation of such proposed Shareholder Designee and designate a replacement therefor (which replacement Shareholder Designee shall also be subject to the issue set forth in the preceding sentence, the Company shall not have the right to object to any Apollo Designee. The Company shall notify Apollo Management in writing requirements of the date on which proxy materials are expected to be mailed by the Company in connection with an election of directors (and such notice shall be delivered to Apollo Management at least 30 days prior to such expected mailing datethis Section). The Company shall use its reasonable best efforts to notify Apollo Management the Apollo/Blackstone Shareholders of any objection to an Apollo a Shareholder Designee sufficiently in advance of the date on which such proxy materials are to be mailed by the Company in connection with such election of directors so as to enable Apollo Management the Apollo/Blackstone Shareholders to propose a replacement Apollo Shareholder Designee in accordance with the terms of this Agreement.
(e) Each Shareholder Designee serving on the Board of Directors shall be entitled to all compensation and stock incentives granted to directors who are not employees of the Company on the same terms provided to, and subject to the same limitations applicable to, such directors.
Appears in 1 contract
Samples: Shareholder Agreements (Allied Waste Industries Inc)
