Common use of Board Representation Clause in Contracts

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 3 contracts

Samples: Series D Preferred Stock Purchase Agreement (Avantgo Inc), Merger Agreement (Avantgo Inc), Voting Agreement (Avantgo Inc)

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Board Representation. During 4.1 Following the Effective Time, the Receiver Board shall consist of 10 Directors. 4.2 Following the Effective Time, the Nominating and Governance Committee shall have the right to nominate for election to the Receiver Board: (a) 6 out of 10 Directors; and (b) to the extent permitted by Law, the Chairman (and, if so, such Chairman shall be regarded as one of the 6 Directors nominated by the Nominating and Governance Committee pursuant to subclause 4.2(a)) (collectively, the “Quarterback Directors”); provided, however, the Nominating and Governance Committee’s right to nominate six Quarterback Directors for election to the Board shall be reduced as follows: (i) If, at any time, Quarterback shall own less than 50.0% but more than or equal to 45.0% of the then outstanding shares of Receiver Common Stock, the number of Quarterback Directors shall be five; (ii) If, at any time, Quarterback shall own less than 45.0% but more than or equal to 35.0% of the then outstanding shares of Receiver Common Stock, the number of Quarterback Directors shall be four; (iii) If, at any time, Quarterback shall own less than 35.0% but more than or equal to 25.0% of the then outstanding shares of Receiver Common Stock, the number of Quarterback Directors shall be three; (iv) If, at any time, Quarterback shall own less than 25.0% but more than or equal to 15.0% of the then outstanding shares of Receiver Common Stock, the number of Quarterback Directors shall be two; (v) If, at any time, Quarterback shall own less than 15.0% but more than or equal to 5.0% of the then outstanding shares of Receiver Common Stock, the number of Quarterback Directors shall be one; and (vi) If, at any time, Quarterback shall own less than 5.0% of the number of outstanding shares of Receiver Common Stock, Quarterback shall have no right to nominate any Directors to the Nominating and Governance Committee. In the case of any reduction in Quarterback’s ownership of shares of Receiver Common Stock such that the Nominating and Governance Committee’s right to nominate directors for election is reduced as set forth in clauses (i)-(vi) above, within five (5) Business Days after Quarterback’s ownership of shares of Receiver Common Stock falls below the applicable threshold, (A) Quarterback shall designate the appropriate number of Quarterback Directors to resign immediately and (B) the Receiver Independent Directors then serving on the Receiver Board, even if less than a quorum, shall appoint replacement directors to serve until the next annual meeting of shareholders. 4.3 Following the Effective Time, the Independent Nominating Committee shall have the right to nominate (a) 3 out of 10 Directors on the Receiver Board (the “Receiver Independent Directors”), all of which will qualify as an independent Director, and (b) the Receiver CEO as a Director on the Receiver Board. For purposes of this Agreement, an independent Director will be an individual who qualifies as independent under Nasdaq rules and regulations. 4.4 At any meeting of Receiver stockholders at which directors are to be elected, Quarterback will cause its shares of Receiver Common Stock to be present for quorum purposes and will vote or cause to be voted all shares of Receiver Common Stock beneficially owned by any member of the Quarterback Group, in favor of (a) the Receiver Independent Directors if recommended by the Independent Nominating Committee and (b) the Receiver CEO as a member of the Receiver Board. 4.5 Quarterback will not vote (and will cause not to be voted) any shares of Receiver Common Stock beneficially owned by any member of the Quarterback Group, with respect to the removal from the Receiver Board of any Director nominated for nomination or appointed to the Receiver Board by the Independent Nominating Committee and will cause all shares of Receiver Common Stock beneficially owned by any member of the Quarterback Group to be voted against such removal. 4.6 Quarterback hereby irrevocably grants to, and appoints for the term of this Agreementagreement, Xxx Xxxxxxx, Xxxxxxx X. Xxxxx and Xxxxx Xxxxxxxxxx, or any of them, in their respective capacities as officers of Receiver, and any individual who shall hereafter succeed to any such office with Receiver, and each of them individually, Quarterback’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of Quarterback and any member of the Quarterback Group, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate vote any shares of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all Receiver Common Stock at any meeting of the shares shareholders of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consentReceiver, or at any annual adjournment or special ------ meeting called postponement thereof or in any other circumstance upon which a vote, agreement, consent or other approval is sought, on the matters set forth in, and in the manner required by, subclauses 3.1, 4.4, 4.5, or 5 hereof, but in respect of no other matters. Such attorney-in-fact may evidence the taking of any action, giving of any consent or the voting of such shares of Receiver Common Stock by the execution of any documentation or instrument for such purpose in the purpose name of electing directors, so as to cause Quarterback or any Quarterback Group member. Quarterback hereby affirms that the total number of authorized directors irrevocable proxy set forth in this subclause 4.6 is given in connection with the execution of the Company Merger Agreement, and that such irrevocable proxy is given to secure the performance of the duties of Quarterback under subclauses 3.1, 4.4, 4.5 and of 5 of this Agreement. Quarterback hereby further affirms that the irrevocable proxy set forth in this subclause 4.6 is coupled with an interest and may under no circumstances be revoked except in connection with the termination of this agreement or this subclause 4.6. Quarterback ratifies and confirms all that such irrevocable proxy may lawfully do or cause to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth belowdone by virtue hereof. SUCH IRREVOCABLE PROXY IS EXECUTED AND INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH THE PROVISIONS OF THE DELAWARE GENERAL CORPORATION LAW. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 2 contracts

Samples: Relationship Agreement (Misys PLC), Relationship Agreement (Allscripts Healthcare Solutions Inc)

Board Representation. During (a) Effective as of the term Closing, the Board shall be comprised of this Agreement, no more than eleven (11) Directors; provided that the size of the Board may be decreased to the extent -------------------- they that the Designated Stockholder’s right to designate the maximum number of Directors pursuant to this Section 2.1(a) is not prejudiced by application of the first proviso at the end of this Section 2.1(a); provided further that the size of the Board may be increased pursuant to Section 2.1(d). The Designated Stockholder shall have the right to designate or nominate (as applicable) a maximum of either two (2) Directors or one (1) Director to the Board as follows: (i) For so long as the Investor Stockholders hold at least two-thirds of the Purchased Shares issued on the Closing Date (as adjusted for stock splits, combinations, reclassifications and similar transactions but not conversion), the Designated Stockholder shall have the right to designate no more than two (2) Directors to the Board that the holders of Series B Preferred Stock are entitled to elect pursuant to Section 4(c) of the Certificate of Designation; (ii) For so long as the Investor Stockholders hold at least one-third, but less than two-thirds, of the Purchased Shares issued on the Closing Date (as adjusted for stock splits, combinations, reclassifications and similar transactions but not conversion), the Designated Stockholder shall have the right to designate no more than one (1) Director to the Board that the holders of Series B Preferred Stock are entitled to elect pursuant to Section 4(c) of the Certificate of Designation; (iii) Following the conversion of any Purchased Shares into Conversion Shares (and without duplication of the Board seats provided in clause (i) or (ii) above), for so long as the Investor Stockholders hold at least a number of Conversion Shares equal to two-thirds of the Purchased Shares issued on the Closing Date on an as-converted basis (as adjusted for stock splits, combinations, reclassifications and similar transactions), the Designated Stockholder shall have the right to nominate two (2) Directors for election to the Board (and no more than a maximum of two (2) Directors giving effect to any rights exercised under clause (i) or (ii) above); and (iv) Following the conversion of any Purchased Shares into Conversion Shares (and without duplication of the Board seats provided in clauses (i) and (ii) above), for so long as the Investor Stockholders hold a number of Conversion Shares equal to less than two-thirds but at least one-third of the Purchased Shares issued on the Closing Date (as adjusted for stock splits, combinations, reclassifications and similar transactions) on an as-converted basis, the Designated Stockholder shall have the right to nominate one (1) Director for election to the Board (and no more than a maximum of two (2) Directors giving effect to any rights exercised under clause (i) or (ii) above); provided that notwithstanding the foregoing, the rights of the Designated Stockholder in this Section 2.1(a) shall be subject to applicable NASDAQ rules to the extent required such that the Common Stock shall continue to be listed on NASDAQ; provided, further, that in connection with an Approved Transaction pursuant to which the Company issues shares of Common Stock as consideration in the transaction, the maximum number of Investor Directors that the Designated Stockholder is entitled to designate or nominate immediately prior to such transaction (the “Maximum Number of Directors”) may be reduced following the consummation of such transaction, at the election of the Company's Fifth Amended , to a number of Investor Directors (rounded to the nearest whole number) equal to (x) the Maximum Number of Directors multiplied by (y) the aggregate percentage ownership of the Company following the consummation of such transaction owned on a fully diluted basis by the holders of Capital Stock of the Company immediately prior to such transaction (provided that in no event may the Maximum Number of Directors be reduced to below one (1) Investor Director by application of this proviso although it shall remain subject to reduction pursuant to clauses (i) through (iv) of Section 2.1(a)); and provided, further, that in any event such rights shall terminate on the seventh (7th) anniversary of the date hereof. (b) For so long as the Designated Stockholder has the right to designate or nominate at least one (1) director pursuant to Section 2.1(a), the Company at all times shall take such action as may be required under applicable Law, NASDAQ rules, the Restated Certificate and the Bylaws to cause the Board to consist of Incorporation the number of Directors specified in clause (a) and, subject to the "Designated Stockholder’s compliance with Section 2.1(e) to include on the Board or in the slate of nominees recommended by the Board such persons designated or nominated, as the case may be, by the Designated Stockholder pursuant to this Section 2.1. (c) For so long as the Designated Stockholder has the right to designate or nominate at least one (1) director pursuant to Section 2.1(a), in the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Investor Director, the Designated Stockholder may designate or nominate, as applicable, another individual to be elected to fill the vacancy created thereby, and the Company hereby agrees to take, at any time and from time to time, all actions necessary to accomplish the same. (d) For so long as the Designated Stockholder has the right to designate or nominate at least one (1) director pursuant to Section 2.1(a), without the prior written consent of the Designated Stockholder, the Company agrees not to take any action that would cause the number of Directors constituting the entire Board to be greater than 11; provided that the entire Board may be increased to the extent the Company is obligated to designate or nominate one or more Directors to the Board pursuant to an Approved Transaction. Thereafter, the number of Directors may be established by the Board in accordance with the Restated Certificate", By-Laws and applicable Law. (e) Any Director designated or nominated by the Designated Stockholder shall be, at all times during which such Person serves as a Director, a present or former full-time general partner, managing director or principal of Elevation Management, LLC, shall not be (or be a representative of or otherwise Affiliated with) a competitor of the Company as determined in good faith by the Board, and shall otherwise be reasonably acceptable to vote on the Company’s Governance and Nominating Committee as determined in good faith. The initial Investor Directors shall be Rxxxx XxXxxxx (as a particular matterClass I Director until the declassification of the Board in 2008) and Fxxx Xxxxxxxx (as a Class II Director until the declassification of the Board in 2008) and shall be required to stand for re-election at the Company’s 2006 or 2007 annual general meeting of stockholders, as the case may be. The Designated Stockholder shall notify the Company of each proposed Investor Director, in writing, a reasonable time in advance of the mailing of any proxy statement, information statement or registration statement in which any Board nominee or Board member of the Company would be named (which in the event of any proxy statement relating to an annual meeting of stockholders of the Company shall be no later than 30 days prior to the first anniversary of the mailing of the proxy statement related to the previous year’s annual meeting of stockholders), together with all information concerning such nominee reasonably requested by the Company, so that the Company may determine whether such nominee complies with the above qualifications and so that the Company can comply with applicable disclosure rules; provided that in the absence of such notice, the -------------------- Founders and Designated Stockholder shall be deemed to have designated or nominated the Investors agree same Investor Directors as set forth in the most recent notice delivered to vote the Company pursuant to this Section 2.1(e). (f) All obligations of the Company pursuant to Section 2.1 shall terminate, and, unless otherwise requested by the Board (which request shall not be deemed to affect the termination of the right to nominate or designate Investor Directors pursuant to Section 2.1(a)), the Designated Stockholder shall cause all of the shares Investor Directors to resign promptly from the Board, immediately when the Designated Stockholder no longer has the right to designate or nominate at least one (1) director pursuant to Section 2.1(a). In addition, the Designated Stockholder shall cause any excess Investor Directors to resign promptly at any time that there exist more Investor Directors than the Designated Stockholder is entitled to nominate or designate pursuant to Section 2.1(a), unless otherwise requested by the Board (which request shall not be deemed to affect the termination of the Company's voting securities now right to nominate or hereafter owned by themdesignate Investor Directors pursuant to Section 2.1(a)). Without prejudice to the foregoing, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual such time, no Investor Directors shall vote or special ------ meeting called for exercise any other rights or powers of office during the purpose of electing directors, so as to cause the total number of authorized directors of the Company to period pending resignation. Any vacancy created by such resignation may be not more or less than nine (9) and to elect members of filled by the Board of Directors as more fully set forth below. (a) The Founders and or the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under in accordance with the Restated Certificate Certificate, the By-Laws and applicable Law. The Company may implement this provision by requiring the execution and delivery of resignation letters subject to termination of designation or Bylaws of the Company or under the laws of the State of Delawarenomination rights.

Appears in 2 contracts

Samples: Stockholders Agreement (Homestore Inc), Stockholders Agreement (Homestore Inc)

Board Representation. During the term In accordance with Section 3(b) of this Agreement, to the extent -------------------- they are entitled under Article IV of the Company's Fifth ’s Amended and Restated Certificate of Incorporation (as the "same may be further amended from time to time, the “Restated Certificate") ”), the Company hereby agrees to take such actions as are necessary, and each of the Holders and Major Common Holders agrees to vote on a particular matterhis, her or its Shares, including in accordance with any cumulative voting requirements, if applicable, and take such other actions as are necessary, to cause the -------------------- Founders Board to consist of nine (9) directors and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by themelect, whether beneficially at an annual meeting, special meeting or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so and thereafter continue in office as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below.follows: (a) The Founders so long as SAP Ventures Fund I, L.P. (“SAPV”) or its Affiliates, holds at least 1,000,000 shares of Series D-2 Stock (appropriately adjusted for stock splits, stock dividends, recapitalizations, and the Investors agree to vote the Shares to elect two like), one (21) designees person nominated by SAPV shall be elected a director of the Founders Company (the "Founder Directors"“Series D-2 Director”) to serve as the Series D-2 Director (as defined in the Restated Certificate), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders so long as Xxxxx Street 2011 Direct Fund, L.P. (the “ASP Direct Fund”) or its Affiliates, holds at least 1,000,000 shares of Series B-2 Stock (appropriately adjusted for stock splits, stock dividends, recapitalizations, and the Investors agree like), one (1) person nominated by ASP Direct Fund, or Xxxxx Street Partners, LLC (together with the ASP Direct Fund, “ASP”), if the ASP Direct Fund ceases to vote hold Shares, shall be elected a director of the Company (the “Series B-2 Director”) to serve as the Series B-2 Director (as defined in the Restated Certificate); (c) so long as Hummer Winblad Venture Partners V, L.P. (“HWVP”) or its Affiliates holds at least 2,000,000 Shares (appropriately adjusted for stock splits, stock dividends, recapitalizations, and the like), one (1) person nominated by HWVP shall be elected a director of the Company (the “HWVP Series A-2 Director”) to elect serve as one of the Series A-2 Directors (as defined in the Restated Certificate); (d) so long as Partech U.S. Partners IV, LLC or its Affiliates (“PIV”) holds at least 2,000,000 Shares (appropriately adjusted for stock splits, stock dividends, recapitalizations, and the like), one (1) person nominated by PIV shall be elected a director of the Company (the “PIV Series A-2 Director” and, collectively with the HWVP Series A-2 Director, the “Series A-2 Directors”) to serve as one of the Series A-2 Directors; (e) one (1) person nominated by the unanimous approval of the directors then in office shall be elected a director of the Company to serve as the Preferred Director (as defined in the Restated Certificate), and collectively with the Series A-2 Directors, the Series B-2 Director and the Series D-2 Director, the “Preferred Stock Directors”; (f) the then Chief Executive Officer of the Company as one (1) member shall be elected a director of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx;Company to serve as the Common Stock Director (as defined in the Restated Certificate); and (cg) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees persons nominated by the unanimous approval of the majority of Preferred Stock Directors and the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement Common Stock Director shall be limited to voting for the election of elected directors of the Company and shall not extend to voting upon questions and matters serve as the Mutual Directors (other than the election of directors) upon which stockholders of the Company have a right to vote under as defined in the Restated Certificate or Bylaws of the Company or under the laws of the State of DelawareCertificate).

Appears in 2 contracts

Samples: Stockholders’ Agreement (Five9, Inc.), Stockholders’ Agreement (Five9, Inc.)

Board Representation. During (a) Effective on the term date hereof, the Board shall be comprised of this Agreement, to eight (8) Directors of whom: (i) three (3) shall be designees of the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation Investor Stockholders (the "Restated CertificateInvestor Representatives"), (ii) to vote on a particular matter, one (1) shall be the -------------------- Founders and the Investors agree to vote all designee of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise ITI (the "SharesITI Representative"), (iii) one (1) shall be the designee of Casty (the "Casty Representative"), (iv) one (1) shall be jointly designated by written consent, or at any annual or special ------ meeting called for ITI and Casty (the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9"Joint Representative") and to elect members of the Board of Directors as more fully set forth below. (av) The Founders and the Investors agree to vote the Shares to elect two (2) designees of shall be Independent Directors acceptable to the Founders Investor Stockholders, ITI and Casty (with such consents not to be unreasonably withheld or delayed) (the "Founder DirectorsIndependent Representatives")) and who, which designees ----------------- shall be determined commencing with the election of Directors at the next annual meeting of stockholders, has been elected by the vote or written consent holders of a majority of the Founders' Sharesoutstanding Voting Securities. The initial Investor Representatives shall be Xxxxxxx X. Xxxxx, Xxxx X. Lama and which designees Xxxxxxx Xxxxxxx, the initial ITI Representative shall initially be Xxxxxxx Xxxxxx, the initial Casty Representative shall be Xxxxxx Xxxxx, the initial Joint Representative shall be Xxxx Xxxxxxxxxx and the initial Independent Representatives shall be Xxxxxx Xxxxx Xxx and Xxxxx Xxxxx;Xxxxxxx Xxxxxxxxx. If, at any time, ITI and Casty are unable to agree upon the designation of the Joint Representative, the Joint Representative shall be designated by Xxxx Xxxxxx. For purposes hereof, each of the two Series A Preferred Directors (as defined in the Series A Certificate of Designation) and the Series B Preferred Director (as defined in the Series B Certificate of Designation) shall each count as one of the three Investor Representatives. (b) The Founders Company shall take such action as may be required under applicable law (i) to cause the Board to consist of the number of Directors specified in clause (a), (ii) to include in the slate of nominees recommended by the Board the Investor Representatives, the ITI Representative, the Casty Representative, the Joint Representative and the Investors agree Independent Representatives (collectively, the "Representatives"), and (iii) to vote cause the Shares Representatives to elect be duly appointed in accordance with the Chief Executive Officer foregoing and, in the case of the Investor Representatives, in accordance with the Series A Certificate of Designation or the Series B Certificate of Designation, as the case may be. The Company as one (1) member agrees to use its reasonable best efforts to cause the election of the Company's Board of DirectorsRepresentatives to the Board, who initially shall including nominating such individuals to be Xxxxxxx Xxxx;elected as Directors as provided herein. (c) The Founders Each of the Investor Stockholders and the Investors agree Stockholders agrees to vote vote, or act by written consent with respect to any Voting Securities beneficially owned by him or it, at each annual or special meeting of the Shares stockholders of the Company at which Directors are to elect one (1) be elected or to take all actions by written consent in lieu of any such meeting as are necessary to cause the Representatives designated by the others in accordance with the terms of this Agreement to be elected to the Board and agrees to use his or its reasonable best efforts to cause the election of each such designee (to the "Series A Director") of 21st Century Internet FundBoard, L.P. ----------------- ("21st Century"), which designee shall initially including nominating such individuals to be Xxxxx X. Xxxxxxxxx; ------------elected as Directors. (d) The Founders In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Representative, the remaining Directors and the Investors agree Company shall cause the vacancy created thereby to vote be filled by a new designee of the Shares party or parties that designated such Director as soon as possible, who is designated in the manner specified in this Section 2.1. Each of the Company, Investor Stockholders and the Stockholders hereby agrees to elect one (1) designee (take, at any time and from time to time, all actions necessary to accomplish the "Series B Director") same. Upon the written request of Adobe Ventures IIany party who is entitled to designated a Representative, L.P. ("Adobe")each of the Investor Stockholders and Stockholders shall vote, ----------------- ----- which designee or act by written consent with respect to all Voting Securities beneficially owned by him or it and otherwise take or cause to be taken all actions necessary to remove any Director designated by such party. Unless, any party who is entitled to designate a Representative shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;otherwise request in writing, none of the others shall take any action to cause the removal of any Director designated by the former. (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares Each of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); Investor Stockholders and -----------------the Stockholders agrees not to take any action that would cause the number of Directors constituting the entire Board to be other than eight (8) without the written consent of each other party. (f) The Founders covenants and agreements set forth herein shall be subject to the Investors agree to vote the Shares to elect three (3) designees fiduciary obligations of the majority Representatives now or hereafter serving on the Board and shall not prevent the Representatives now or hereafter serving on the Board from taking any action or refraining to take any action while acting in the capacity as a Director of the directors (Company. The foregoing shall not limit the "Outside Directors")obligations of the Investor Stockholders, ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with ITI and Casty in their capacity as stockholders of the remaining vacancies to be filled as soon as reasonably practicalCompany hereunder. (g) This Agreement shall be limited The Company has hired an executive search firm to voting for help locate two new Independent Representatives who will serve as Independent Representative instead of Messrs. Xxxxx and Delhougne. After the election of directors Company has located such Independent Representatives acceptable to the Investor Stockholders, ITI and Casty, each of the Company Company, the Investor Stockholders and shall not extend the Stockholders agree to voting upon questions and matters take all actions reasonably necessary to cause (other than the election including all of directorssuch actions described in Section 2.1(c) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.hereof)

Appears in 2 contracts

Samples: Stockholders Agreement (Ifx Corp), Stockholders Agreement (Myers Mary)

Board Representation. During (a) The Shareholders shall be entitled to present two candidates to the term Board of this Agreementthe Company for nomination to the Board of the Company as directors, which candidates the Board shall use their reasonable best efforts, subject to their fiduciary duties as directors, to appoint or secure to be appointed to the extent -------------------- they are entitled under Board; PROVIDED that such candidates shall initially be Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx; PROVIDED FURTHER that for such time as the Company's Fifth Amended and Restated Certificate aggregate beneficial ownership of Incorporation (Voting Securities of the "Restated Certificate") to vote Reference Group represents less than 12.5% of the Total Voting Power, all on a particular matterfully diluted basis, such number of candidates shall be reduced to one, such candidate to be reasonably acceptable to the -------------------- Founders and the Investors agree to vote all of the shares Board of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or ; and PROVIDED FURTHER that if at any annual or special ------ meeting called time the aggregate beneficial ownership of Voting Securities of the Reference Group represents less than 5% of the Total Voting Power, all on a fully diluted basis, the Shareholders shall no longer have any entitlements to present candidates for the purpose of electing directors, nomination pursuant to this Section 5.1. (b) For so long as to cause the total number of authorized Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx are directors of the Company to be not more it is agreed that they or less than nine (9) and to elect members the one of them remaining on the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx;may appoint Xxxxxx X. Xxxx as their, or his, alternate. (c) The Founders Company agrees that Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxx are acceptable to it as directors of the Investors agree Company and, in the case of Xxxxxx X. Xxxx, as an alternate director. Any candidate other than Xxxxxx X. Xxxx proposed as successor to vote Xxxxxx X. Xxxxxx or Xxxx X. Xxxxxx shall be subject to the Shares approval of the Board, such approval not to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------unreasonably withheld or delayed. (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares While he is a director of the Company's Series C Preferred Stock, each shall vote Xxxx X. Xxxxxx will be a member of the Shares to elect one (1) designee Audit and Remuneration Committees of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares Board of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the . While they are directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of or alternate directors of the Company Company, at least one of Xxxx X. Xxxxxx and shall not extend Xxxxxx X. Xxxx will be given opportunity to voting upon questions and matters (other than sit on the election of directors) upon which stockholders standing committees of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of DelawareBoard.

Appears in 1 contract

Samples: Shareholder Agreement (Premier Industrial Corp)

Board Representation. During (i) For so long as the term Series B Holders shall be entitled to nominate and elect at least one (1) Director pursuant to this Section 4(a), the Board shall consist of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate a number of Incorporation Directors of seven (the "Restated Certificate"7) to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and with the specific number of Directors at any time to elect members be fixed by the Board by the adoption of a resolution by a majority of the Board number of Directors as more fully set forth belowthen in office (whether or not there exist any vacancies in the previously authorized number of directorships at the time such resolution is presented). The Board shall at all times consist of at least a majority of Directors who are Independent Directors. (aii) The Founders Subject to Section 4(a)(iv), so long as the Series B Holders Beneficially Own, in the aggregate, less than thirty percent (30%) but at least twenty percent (20%) of the outstanding Common Stock, the Series B Holders (by majority vote of the Series B Shares) shall have the right to nominate and the Investors agree to vote the Shares to elect a total of two (2) designees Series B Directors. (iii) Subject to Section 4(a)(iv), so long as the Series B Holders Beneficially Own, in the aggregate, less than twenty percent (20%) but at least eleven percent (11%) of the Founders outstanding Common Stock, the Series B Holders (the "Founder Directors"), which designees ----------------- shall be determined by the majority vote or written consent of a majority of the Founders' Series B Shares, ) shall have the right to nominate and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee Series B Director. (iv) The number of Series B Directors which the Series B Holders shall be entitled to nominate and elect shall not be reduced unless and until the number of Series B Shares Beneficially Owned by the Series B Holders shall be less than the applicable threshold set forth in Section 4(a)(ii) and (iii)above for a period of thirty (30) consecutive days. After any such reduction, the number of Series B Directors which the Series B Holders shall be entitled to nominate and elect shall not be increased regardless of any subsequent increase in the percentage of outstanding Common Stock Beneficially Owned by the Series B Holders. (v) No person other than the Series B Holders shall be entitled to nominate a Series B Director. (vi) The Board and its Nominating and Corporate Governance Committee shall be entitled to nominate the individuals for election to the remaining seats on the Board other than the seats held by the Series B Directors (the "“Company Nominated Directors.”) (vii) The Company shall notify the Series A Director"B Holders promptly, and in any event within five (5) Business Days, of 21st Century Internet Fundany issuance of Common Stock representing, L.P. ----------------- individually or together with all issuances of Common Stock since the date of the filing of this Certificate of Designation with the Secretary of State of the State of Delaware or the date of any previous such notice, as applicable, one percent ("21st Century"1%) or more of the outstanding Common Stock as of the date of such filing or such previous notice together with the aggregate number of shares of Common Stock outstanding following such issuance. (viii) The Series B Holders will notify the Company promptly, and in any event within five (5) Business Days, of any action by the Series B Holders or any of their Affiliates (other than the Company) that results in a reduction in the number of shares of Common Stock that are Beneficially Owned by the Series B Holders representing, individually or together with all such reductions since the date of the filing of this Certificate of Designation with the Secretary of State of the State of Delaware or the date of any previous such notice, as applicable, one percent (1%) or more of the outstanding Common Stock as of the date of such filing or such previous notice, which notice will set forth the number of shares of Common Stock Beneficially Owned by the Series B Holders immediately following the occurrence of such reduction; provided, that for purposes of this provision, in determining the shares of Common Stock outstanding the Series B Holders may rely upon the Company’s most recent periodic report filed with the SEC, or any update thereof, or any notice provided by the Company pursuant to Section 4(a)(ix). In the event that the number of directors that the Series B Holders are entitled to nominate and elect to the Board is reduced pursuant to this Section 4(a), which designee the Series B Holders shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect promptly cause one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders or more of the Series C Preferred Stock B Directors to immediately resign, such that the number of remaining Series B Directors serving on the Board shall equal the number of directors the Series B Holders are then outstanding (in either caseentitled to elect to the Board pursuant to this Section 4(a). In the event that the number of Series B Directors required to resign are unwilling to resign, the "Series C Director"); and ----------------- (f) The Founders and B Holders will take all such actions as are necessary to cause the Investors agree to vote the Shares to elect three (3) designees removal of the majority such number of the directors (the "Outside Series B Directors"), ----------------- which Outside . If such number of Series B Directors shall initially be Xxxxxx Xxxxxnot have resigned or been removed within thirty (30) days after the date on which such resignation was required, with the remaining vacancies Company Nominated Directors, by majority vote, may remove the Series B Director(s) selected by the Series B Holders for removal, or if no such Series B Directors have been so selected by the Series B Holders within ten (10) Business Days of a request from the Company, the Company Nominated Directors, by majority vote, may remove one or more Series B Directors selected by them, such that, in the aggregate, the number of Series B Directors required to be filled as soon as reasonably practicalremoved under this Section 4(a)(xi) have been removed. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Stockholder Agreement (Trident Microsystems Inc)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all At each annual meeting of the shares stockholders of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for of the purpose of electing directors, so as to cause the total number of authorized directors stockholders of the Company to be not more or less than nine (9) and to elect at which members of the Board of Directors of the Company are to be elected, or whenever members of the Board of Directors are to be elected by written consent, the Executives and the Preferred Stockholders agree to vote or act with respect to their shares so as more fully set forth below.to elect: (a) The Founders and So long as at least 50% of the Investors agree to vote the Shares Series A Preferred Stock remains outstanding, so as to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of DirectorsDirectors designated by Zilkha Venture Partners, who L.P. or its affiliates, which designee shall initially shall be Xxxxxxx XxxxXxxx Xxxxxxx; (cb) The Founders and So long as at least 50% of the Investors agree to vote the Shares Series B Preferred Stock remains outstanding, so as to elect one (1) designee (member of the "Series A Director") Company's Board of 21st Century Internet FundDirectors designated by Madison Dearborn Capital Partners III, L.P. ----------------- or its affiliates, which designee shall initially be Xxxxxxxx Xxxxxxxxx; ("21st Century")c) So long as at least 50% of the Series E Preferred Stock remains outstanding, so as to elect one (1) member of the Company's Board of Directors designated by August Capital or its affiliates, which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------; (d) The Founders So as to elect two (2) members of the Company's Board of Directors designated by the Executives, one of whom shall be the Chief Executive Officer of the Company, which designees shall initially be Xxxx Xxxxxx and the Investors agree to vote the Shares Xxxxx Xxxxxxxx; (e) So as to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares independent member of the Company's Series C Preferred Stock, each Board of Directors who shall vote have relevant industry experience and be designated by the Shares to elect one (1) designee mutual agreement of Sleepy Hollowthe other designated members of the Board of Directors, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director")M. Xxxxxx Xxxxxx XX; and -----------------and (f) The Founders So as to elect R. Xxxx XxXxxxxx, L. Xxxxx Xxxxx and Xxxxxx Xxxxxx; provided, however, that the Investors agree Executives and Preferred Stockholders shall not be obligated to vote the Shares or act with respect to their shares so as to elect three (3the designees listed in this Section 1(f) designees following the first anniversary of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicaldate hereof. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Autotradecenter Com Inc)

Board Representation. During (a) Subject to Section 2.2 hereof, at and following the term of Effective Date, each party to this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so agreement will take such action as may reasonably be in its power to cause the total number of authorized directors of the Company Board to be not more or less than nine include (9i) and to elect members of the Board of Directors as more fully set forth below. six (a6) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors")Investor Group Designees, which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directorswhom, who initially unless and until a Dickstein Forfeiture Event has xxxxxxxx, shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx XxxxxxxDickstein Designee, and (ii) fxxx (0) Xender Group Designees. The Investor Group Designees (including the Dickstein Designee) and the Lexxxx Xxxxp Designees are sometimes collectively referred to herein as the "Designees" and individually as a "Designee." (b) (i) The Investor Group Designator, the Lender Group Designator and the Dickstein Designator shall eacx xxxx xxe Company timely notice (the "Notice of Designee") of the name of each person whom the relevant Stockholder Group wishes to be nominated by the Company for election or re-election to the Board at the next meeting of stockholders, or taking of action by written consent of stockholders, at which Directors are to be elected (an "Election Meeting"). At the option of any Stockholder Group Designator, the Notice of Designee may also specify one or more alternates (an "Alternate Designee") to serve in the event Sleepy Hollow owns less than 200,000 shares of the incapacity or other inability to serve of a Designee, as provided herein. The Investor Group Designees and the Lender Group Designees shall at all times include such number of Independent Directors as shall be required to comply with the provisions of Sections 2.3(b) and 2.3(c) hereof. Each Notice of Designee shall be in writing and shall be timely if delivered to the Secretary of the Company at the Company's Series C Preferred Stock, each shall vote principal executive offices not later than the Shares close of business on the 60th day prior to elect (1) designee the first anniversary of the majority preceding year's annual meeting; provided, however, that in the event that the date of the holders Election Meeting is more than 30 days before or after such anniversary date, the Notice of Designee to be timely must be so delivered not later than the later of (x) the close of business on the later of the Series C Preferred Stock then outstanding 60th day prior to the Election Meeting and (y) the 20th day following the day on which public announcement of the date of the Election Meeting is first made by the Company. In no event shall the public announcement of an adjournment of an Election Meeting commence a new time period for the giving of the Notice of Designee as described above. If the Company has not received a Notice of Designee from any Stockholder Group Designator at a time when the relevant Stockholder Group is entitled to name one or more Designee on or before the 10th day before the latest date for delivery of the Notice of Designee specified in either casethe proviso to the next preceding sentence, the "Series C Director"); and ----------------- (f) The Founders and Company shall so inform the Investors agree relevant Stockholder Group Designator by written notice. If the Company has not received a Notice of Designee from any Stockholder Group Designator at a time when the relevant Stockholder Group is entitled to vote name one or more Designee on or before the Shares to elect three (3) designees latest date for delivery of the majority of the directors (the "Outside Directors")such Notice, ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement then such Stockholder Group Designator shall be limited deemed to voting have delivered on such date a Notice of Designee designating the Designees specified in the most recently delivered Notice of Designee for the election of directors of the Company any prior Election Meeting, or, if any such Designee is unable to serve and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delawarean Alternate Designee has been specified therefor, such Alternate Designee.

Appears in 1 contract

Samples: Stockholders' Agreement (Chase Manhattan Corp /De/)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to Each Stockholder shall vote all of the shares his or its voting Company Securities and shall take all other necessary or desirable actions within his or its control (whether in his or its capacity as a Stockholder, director, member of a Board committee, officer of the Company's voting securities now Company or hereafter owned otherwise, and including attendance at meetings in person or by them, whether beneficially proxy for purposes of obtaining a quorum and execution of written consents or otherwise (the "Shares"resolutions in lieu of meetings), by written consent, and the Company shall take all necessary or at any annual or desirable actions within its control (including calling special ------ meeting called for Board and Stockholder meetings) so that: (i) the purpose of electing directors, so as to cause the total authorized number of authorized directors of the Company to Board shall be not more or less than established at nine (9) and to elect members of the Board of Directors as more fully set forth below.); (aii) The Founders and the Investors agree following individuals shall be elected to vote the Shares to elect Board: (A) two (2) designees individuals designated by Banc of the Founders America (the "Founder “Banc of America Directors"), which designees ----------------- who shall initially be determined Xxxxxx X. Xxxxxxxx III and Xxxxxx X. Xxxxxxx; (B) two individuals designated by the vote or written consent Greenhill Representative (the “Greenhill Directors”), who shall initially be Xxxxx X. Xxx and Xxxxxxx X. Xxxxx; (C) one individual designated by the Greenhill Representative and approved by Banc of America, who shall initially be Xxxxx Xxxxxxx; (D) one individual designated by Brazos (the “Brazos Director”), who shall initially be Xxxxxxx X. XxXxx; (E) one individual designated by the holders of a majority of the Founders' SharesPreferred Stock held by the Investor Stockholders (excluding the Wand Stockholders), and which designees who shall initially be Xxxx Xxxx (“Xxxx”); provided, that so long as 21st Century owns at least 6,500 shares (as adjusted for any splits, stock dividends or combinations thereof) of Preferred Stock, Xxxx shall not be removed from the Board without the prior written approval of 21st Century; provided, further, that for purposes of this clause (E) the ownership of Preferred Stock shall be determined as if the transactions to occur on the Closing Date had occurred on May 9, 2003; (F) one individual designated by the Wand Stockholders, who shall initially be Xxxxx Xxx and Xxxxx Xxxxx;Xxxxxxxxx; and (bG) The Founders and one individual designated by the Investors agree to vote other members of the Shares to elect the Chief Executive Officer Board, which person must be a member of management of the Company as one (1) member of the Company's Board of Directors“Management Director”), who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical.X. Xxxx; and (giii) This Agreement Xxxxx Xxxxxxxxx shall serve as the initial Chairman of the Board until a successor is duly selected by the Board; (iv) any question brought before any meeting of the Board at which a quorum exists under the By-laws shall be limited to voting for decided by a majority of the election total number of directors votes cast at such meeting; provided, that until the day after the Closing Date, such majority vote must include the affirmative vote of at least one Banc of America Director and at least one Greenhill Director; and (v) neither the Certificate of Incorporation nor the By-laws of the Company and shall not extend to voting upon questions and matters (other than the election be amended in any manner that conflicts with any provisions of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delawarethis Agreement.

Appears in 1 contract

Samples: Investor Rights Agreement (Republic Companies Group, Inc.)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine five (95) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two three (23) designees of the Founders (the "Founder Directors")Founders, which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx Xxx, Xxxxx Xxxxx and Xxxxx XxxxxXxxxxx Xxxxxxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; and ------------ (dc) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;. (ed) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the If a majority of the holders Board of Directors determines that it is in the best interests of the Series C Preferred Stock then outstanding (in either caseCompany to designate an additional non-employee director and there is at such time no vacancy on the Board of Directors, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote elect as directors the Shares to elect three following designated nominees: (3i) two (2) designees determined by the vote or written consent of a majority of the Founders' Shares; (ii) the Series A Director; (iii) the Series B Director; and (iv) one (1) designee who shall be appointed with the consent of a majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicalthen in office. (ge) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Series B Preferred Stock Purchase Agreement (Avantgo Inc)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx;; Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commision. (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Voting Agreement (Avantgo Inc)

Board Representation. During (a) The Shareholders shall be entitled to present two candidates to the term Board of this Agreementthe Company for nomination to the Board of the Company as directors, which candidates the Board shall use their reasonable best efforts, subject to their fiduciary duties as directors, to appoint or secure to be appointed to the extent -------------------- they are entitled under Board; provided that such candidates shall initially be Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx; provided further that for such time as the Company's Fifth Amended and Restated Certificate aggregate beneficial ownership of Incorporation (Voting Securities of the "Restated Certificate") to vote Reference Group represents less than 12.5% of the Total Voting Power, all on a particular matterfully diluted basis, such number of candidates shall be reduced to one, such candidate to be reasonably acceptable to the -------------------- Founders and the Investors agree to vote all of the shares Board of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or ; and provided further that if at any annual or special ------ meeting called time the aggregate beneficial ownership of Voting Securities of the Reference Group represents less than 5% of the Total Voting Power, all on a fully diluted basis, the Shareholders shall no longer have any entitlements to present candidates for the purpose of electing directors, nomination pursuant to this Section 5.1. (b) For so long as to cause the total number of authorized Xxxxxx X. Xxxxxx and Xxxx X. Xxxxxx are directors of the Company to be not more it is agreed that they or less than nine (9) and to elect members the one of them remaining on the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx;may appoint Xxxxxx X. Xxxx as their, or his, alternate. (c) The Founders Company agrees that Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxxx X. Xxxx are acceptable to it as directors of the Investors agree Company and, in the case of Xxxxxx X. Xxxx, as an alternate director. Any candidate other than Xxxxxx X. Xxxx proposed as successor to vote Xxxxxx X. Xxxxxx or Xxxx X. Xxxxxx shall be subject to the Shares approval of the Board, such approval not to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------unreasonably withheld or delayed. (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares While he is a director of the Company's Series C Preferred Stock, each shall vote Xxxx X. Xxxxxx will be a member of the Shares to elect one (1) designee Audit and Remuneration Committees of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares Board of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the . While they are directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of or alternate directors of the Company Company, at least one of Xxxx X. Xxxxxx and shall not extend Xxxxxx X. Xxxx will be given opportunity to voting upon questions and matters (other than sit on the election of directors) upon which stockholders standing committees of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of DelawareBoard.

Appears in 1 contract

Samples: Shareholders Agreement (Mandel Jack N)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders Corporation and the Investors agree shall take such corporate actions as may be required to vote ensure that (i) the Shares number of directors constituting the Board shall be either five (5) or seven (7) and shall initially be seven (7) and (ii) the presence of four (4) directors (including each of the Investor Directors) is required to elect constitute a quorum of the Board if the Board consists of seven (7) members and the presence of three (3) directors (including each of the Investor Directors) is required to constitute a quorum of the Board if the Board consists of five (5) members. The Board (and the number of members constituting a quorum) may be changed with the consent of each of Castlerigg and Medley. (b) Subject to the expansion option set forth in Section 2.1, the Board shall be comprised as follows: (i) Castlerigg shall be entitled: (A) to nominate one (1) individual to the Board to serve as director (the “Castlerigg Director”) until his respective successor is elected and qualified, (B) to nominate each successor to the Castlerigg Director and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (B); the Castlerigg Director shall initially be Mxxxxxx Xxxxxxx; (ii) Medley shall be entitled (A) to nominate one (1) individual to the Board to serve as director (the “Medley Director”) until his respective successor is elected and qualified, (B) to nominate each successor to the Medley Director and (C) to direct the removal from the Board of any director nominated under the foregoing clauses (A) or (B); the Medley Director initially shall be Txx Xxxxxx; (iii) the remaining directors shall be appointed pursuant to the terms of the Bylaws; provided that at least one (1) of such directors shall be an independent director not affiliated with, or an officer or employee of, the Corporation, and provided further, that no Investor shall take any action that would result in a change of more than two (2) designees of such remaining directors in any twelve (12) month period and the initial change of any of the Founders (the "Founder Directors"), which designees ----------------- remaining directors shall be determined by the vote or written require consent of a majority of Castlerigg; the Founders' Shares, and which designees remaining directors shall initially be Xxxxx Xxx (i) W. Pxxxxxx Xxxxxx, (ii) Cem Hacioglu, (iii) Cxxxx Xxxxx, (iv) Jxxx Xxxx and Xxxxx Xxxxx; (bv) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx;Kxxxx Xxxxxxx. (c) The Founders and Each nomination or any proposal to remove from the Investors agree Board any director shall be made by delivering to vote the Shares Corporation a notice signed by the party or parties entitled to elect one such nomination or proposal. As promptly as practicable, but in any event within ten (110) designee (days, after delivery of such notice, the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee Corporation shall initially take or cause to be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and taken such corporate actions as may be reasonably required to cause the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares election or removal proposed in such notice. Such corporate actions may include calling a meeting or soliciting a written consent of the Company's Series C Preferred StockBoard, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares or calling a meeting or soliciting a written consent of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicalInvestors. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Shareholder Agreement (PNG Ventures Inc)

Board Representation. During (a) As of the term Closing Date and during the Standstill Period the Board of Directors shall consist of no more than twelve (12) directors as follows: (A) two directors shall be executive officers of the Company; (B) up to two directors, as determined pursuant to Sections 3.1(b) and 3.1(c), shall be Shareholder Designees; (C) for so long as required under the Stock Purchase Agreement dated as of September 17, 1996, as the same may be amended (the "Laidxxx For so long as Shareholders are entitled to two Shareholder Designees under this Agreement, Shareholders shall be entitled to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote have one Shareholder Designee serve on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members each committee of the Board of Directors as more fully set forth belowother than any committee formed for the purpose of considering matters relating to the Shareholders. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders On the Closing Date, the Company will cause Anthxxx X. Xxxxxxx xxx Howaxx X. Xxxxxx xx, subject to Section 3.1(d), such other substitute persons as may be designated by Shareholders and be reasonably acceptable to the Company, to be elected to the Board of Directors. Until the earlier to occur of the sixth anniversary of the Closing Date and the Investors agree to vote date on which Shareholders own, collectively, less than 20% of the Shares (the "Shareholder Designee Period"), the Company agrees, subject to elect Section 3.1(d), to support the Chief Executive Officer nomination of, and the Company's nominating committee (or any other committee exercising a similar function) shall recommend to the Board of Directors that, (A) two Shareholder Designees, so long as Shareholders beneficially own 50% or more of the Shares and (B) one Shareholder Designee, so long as Shareholders beneficially own 20% or more and less than 50% of the Shares (each a "Beneficial Ownership Threshold"), be included in the slate of nominees recommended by the Board Notwithstanding the foregoing, the Company as one shall have no obligation to support the nomination, recommendation or election of any Shareholder Designee pursuant to this Section 3.1(b) if Shareholders are in breach of any material provision of this Agreement. (1c) member Upon any decrease in Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or Voting Securities below the Actual Voting Power Threshold, Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of Directors, who initially shall Directors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be Xxxxxxx Xxxx; (c) The Founders and equal to the Investors agree number of Shareholder Designees which Shareholders would then be entitled to vote the Shares to elect one (1) designee (the "Series A Director") designate under Section 3.1(b). Upon termination of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------the (d) The Founders and Notwithstanding the Investors agree provisions of this Section 3.1, Shareholder shall not be entitled to vote designate any person to the Shares Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to elect one serve as a director of the 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 (1) designee (the "Series B Director"e) of Adobe Ventures IISchedule 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, L.P. 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 Shareholder shall withdraw the designation of such proposed Shareholder Designee and designate a replacement therefor ("Adobe"which replacement Shareholder Designee shall also be subject to the requirements of this Section), ----------------- ----- . The Company shall use its reasonable best efforts to notify the Shareholder of any objection to a Shareholder Designee sufficiently in advance of the date on which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;proxy materials are mailed by the Company in connection with such election of directors to enable the Shareholder to propose a replacement Shareholder Designee in accordance with the terms of this Agreement. (e) The Founders and Each Shareholder Designee serving on the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares Board of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies entitled to be filled as soon as reasonably practical. (g) This Agreement shall be limited all compensation and stock incentives granted to voting for the election of directors who are not employees of the Company and shall not extend on the same terms provided to voting upon questions and matters (other than the election of such directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Shareholders Agreement (Allied Waste Industries Inc)

Board Representation. During (a) Effective on the term date hereof, the Board shall be comprised of this Agreement, to eight (8) Directors of whom: (i) three (3) shall be designees of the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation Investor Stockholders (the "Restated CertificateInvestor Representatives"), (ii) to vote on a particular matter, one (1) shall be the -------------------- Founders and the Investors agree to vote all designee of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise ITI (the "SharesITI Representative"), (iii) one (1) shall be the designee of Casty (the "Casty Representative"), (iv) one (1) shall be jointly designated by written consent, or at any annual or special ------ meeting called for ITI and Casty (the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9"Joint Representative") and to elect members of the Board of Directors as more fully set forth below. (av) The Founders and the Investors agree to vote the Shares to elect two (2) designees of shall be Independent Directors acceptable to the Founders Investor Stockholders, ITI and Casty (with such consents not to be unreasonably withheld or delayed) (the "Founder DirectorsIndependent Representatives")) and who, which designees ----------------- shall be determined commencing with the election of Directors at the next annual meeting of stockholders, has been elected by the vote or written consent holders of a majority of the Founders' Sharesoutstanding Voting Securities. The initial Investor Representatives shall be Charxxx X. Xxxxx, Xxrk X. Xxxa and which designees Charxxx Xxxxxxx, xxe initial ITI Representative shall initially be Michxxx Xxxxxx, xxe initial Casty Representative shall be Georxx Xxxxx, xxe initial Joint Representative shall be Joel Xxxxxxxxxx xxx the initial Independent Representatives shall be Burtxx Xxxxx Xxx xxx Patrxxx Xxxxxxxxx. Xx, at any time, ITI and Xxxxx Xxxxx;Casty are unable to agree upon the designation of the Joint Representative, the Joint Representative shall be designated by Jose Xxxxxx. Xxr purposes hereof, each of the two Series A Preferred Directors (as defined in the Series A Certificate of Designation) and the Series B Preferred Director (as defined in the Series B Certificate of Designation) shall each count as one of the three Investor Representatives. (b) The Founders Company shall take such action as may be required under applicable law (i) to cause the Board to consist of the number of Directors specified in clause (a), (ii) to include in the slate of nominees recommended by the Board the Investor Representatives, the ITI Representative, the Casty Representative, the Joint Representative and the Investors agree Independent Representatives (collectively, the "Representatives"), and (iii) to vote cause the Shares Representatives to elect be duly appointed in accordance with the Chief Executive Officer foregoing and, in the case of the Investor Representatives, in accordance with the Series A Certificate of Designation or the Series B Certificate of Designation, as the case may be. The Company as one (1) member agrees to use its reasonable best efforts to cause the election of the Company's Board of DirectorsRepresentatives to the Board, who initially shall including nominating such individuals to be Xxxxxxx Xxxx;elected as Directors as provided herein. (c) The Founders Each of the Investor Stockholders and the Investors agree Stockholders agrees to vote vote, or act by written consent with respect to any Voting Securities beneficially owned by him or it, at each annual or special meeting of the Shares stockholders of the Company at which Directors are to elect one (1) be elected or to take all actions by written consent in lieu of any such meeting as are necessary to cause the Representatives designated by the others in accordance with the terms of this Agreement to be elected to the Board and agrees to use his or its reasonable best efforts to cause the election of each such designee (to the "Series A Director") of 21st Century Internet FundBoard, L.P. ----------------- ("21st Century"), which designee shall initially including nominating such individuals to be Xxxxx X. Xxxxxxxxx; ------------elected as Directors. (d) The Founders In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Representative, the remaining Directors and the Investors agree Company shall cause the vacancy created thereby to vote be filled by a new designee of the Shares party or parties that designated such Director as soon as possible, who is designated in the manner specified in this Section 2.1. Each of the Company, Investor Stockholders and the Stockholders hereby agrees to elect one (1) designee (take, at any time and from time to time, all actions necessary to accomplish the "Series B Director") same. Upon the written request of Adobe Ventures IIany party who is entitled to designated a Representative, L.P. ("Adobe")each of the Investor Stockholders and Stockholders shall vote, ----------------- ----- which designee or act by written consent with respect to all Voting Securities beneficially owned by him or it and otherwise take or cause to be taken all actions necessary to remove any Director designated by such party. Unless, any party who is entitled to designate a Representative shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;otherwise request in writing, none of the others shall take any action to cause the removal of any Director designated by the former. (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares Each of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); Investor Stockholders and -----------------the Stockholders agrees not to take any action that would cause the number of Directors constituting the entire Board to be other than eight (8) without the written consent of each other party. (f) The Founders covenants and agreements set forth herein shall be subject to the Investors agree to vote the Shares to elect three (3) designees fiduciary obligations of the majority Representatives now or hereafter serving on the Board and shall not prevent the Representatives now or hereafter serving on the Board from taking any action or refraining to take any action while acting in the capacity as a Director of the directors (Company. The foregoing shall not limit the "Outside Directors")obligations of the Investor Stockholders, ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with ITI and Casty in their capacity as stockholders of the remaining vacancies to be filled as soon as reasonably practicalCompany hereunder. (g) This Agreement shall be limited The Company has hired an executive search firm to voting for help locate two new Independent Representatives who will serve as Independent Representative instead of Messrs. Meyex xxx Delhougne. After the election of directors Company has located such Independent Representatives acceptable to the Investor Stockholders, ITI and Casty, each of the Company Company, the Investor Stockholders and shall not extend the Stockholders agree to voting upon questions and matters take all actions reasonably necessary to cause (other than the election including all of directorssuch actions described in Section 2.1(c) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.hereof)

Appears in 1 contract

Samples: Stockholders Agreement (Ubs Capital Americas Iii Lp)

Board Representation. During (a) As of the term Closing Date and during the Standstill Period the Board of this AgreementDirectors shall consist of no more than twelve (12) directors as follows: (A) two directors shall be executive officers of the Company; (B) up to two directors, as determined pursuant to the extent -------------------- they are entitled SECTIONS 3.1(B) and 3.1(C), shall be Shareholder Designees; (C) for so long as required under the Company's Fifth Amended and Restated Certificate Stock Purchase Agreement dated as of Incorporation September 17, 1996, as the same may be amended (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "SharesXXXXXXX AGREEMENT"), by written consentand among the Company, Allied Holding (United States), Inc., a Delaware corporation, Xxxxxxx, Inc., a Canadian corporation ("XXXXXXX"), and certain of Xxxxxxx'x subsidiaries, two directors as shall be designated in accordance with the Xxxxxxx Agreement; and (D) each other director shall be an individual who is not a partner, employee, director, officer or at affiliate of any annual Shareholder or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors any employee or officer of the Company Company; PROVIDED, HOWEVER, that if Xx. X'Xxxxx ceases to serve as a director, the Board of Directors shall thereafter consist of no more than eleven (11) directors during the Standstill Period. For so long as Shareholders are entitled to two Shareholder Designees under this Agreement, Shareholders shall be not more or less than nine (9) and entitled to elect members have one Shareholder Designee serve on each committee of the Board of Directors as more fully set forth belowother than any committee formed for the purpose of considering matters relating to the Shareholders. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders On the Closing Date, the Company will cause Xxxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx or, subject to SECTION 3.1(D), such other substitute persons as may be designated by Shareholders and be reasonably acceptable to the Company, to be elected to the Board of Directors. Until the earlier to occur of the sixth anniversary of the Closing Date and the Investors agree to vote date on which Shareholders own, collectively, less than 20% of the Shares (the "SHAREHOLDER DESIGNEE PERIOD"), the Company agrees, subject to elect SECTION 3.1(D), to support the Chief Executive Officer nomination of, and the Company's nominating committee (or any other committee exercising a similar function) shall recommend to the Board of Directors that, (A) two Shareholder Designees, so long as Shareholders beneficially own 50% or more of the Shares and (B) one Shareholder Designee, so long as Shareholders beneficially own 20% or more and less than 50% of the Shares (each a "BENEFICIAL OWNERSHIP THRESHOLD"), be included in the slate of nominees recommended by the Board of Directors to shareholders for election as directors at each annual meeting of shareholders of the Company commencing with the next annual meeting of shareholders. Notwithstanding the foregoing, if at any time as a result of the Company's issuance of Voting Securities Shareholders beneficially own 9% or less of the Actual Voting Power (the "ACTUAL VOTING POWER THRESHOLD"), Shareholders shall be entitled to no more than one Shareholder Designee. In the event that any of the Shareholder Designees shall cease to serve as a director for any reason, the Board of Directors shall fill the vacancy resulting thereby, subject to the terms of this Agreement, with a person designated by Shareholders, subject to SECTION 3.1(D) (1and such person shall be a "Shareholder Designee" for purposes of this Agreement). The foregoing provision shall be effected pursuant to an amendment to the Company's By-laws 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 have no obligation to support the nomination, recommendation or election of any Shareholder Designee pursuant to this SECTION 3.1(B) member if Shareholders are in breach of any material provision of this Agreement. (c) Upon any decrease in Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or Voting Securities below the Actual Voting Power Threshold, Shareholders shall cause a number of Shareholder Designees to offer to immediately resign from the Company's Board of DirectorsDirectors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be equal to the number of Shareholder Designees which Shareholders would then be entitled to designate under SECTION 3.1(B). Upon termination of the Shareholder Designee Period, who initially Shareholders shall be Xxxxxxx Xxxx; (c) The Founders promptly offer to cause all of the Shareholder Designees to resign from the Board of Directors and any committees thereof and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee Company's obligations under this SECTION 3.1 shall initially be Xxxxx X. Xxxxxxxxx; ------------terminate. (d) The Founders and Notwithstanding the Investors agree provisions of this SECTION 3.1, Shareholder shall not be entitled to vote designate any person to the Shares Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to elect one serve as a director of the 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 (1) designee (the "Series B Director"e) of Adobe Ventures IISchedule 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, L.P. 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 Shareholder shall withdraw the designation of such proposed Shareholder Designee and designate a replacement therefor ("Adobe"which replacement Shareholder Designee shall also be subject to the requirements of this Section), ----------------- ----- . The Company shall use its reasonable best efforts to notify the Shareholder of any objection to a Shareholder Designee sufficiently in advance of the date on which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;proxy materials are mailed by the Company in connection with such election of directors to enable the Shareholder to propose a replacement Shareholder Designee in accordance with the terms of this Agreement. (e) The Founders and Each Shareholder Designee serving on the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares Board of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies entitled to be filled as soon as reasonably practical. (g) This Agreement shall be limited all compensation and stock incentives granted to voting for the election of directors who are not employees of the Company and shall not extend on the same terms provided to voting upon questions and matters (other than the election of such directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Shareholders Agreement (Blackstone Capital Partners Ii Merchant Banking Fund Et Al)

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Board Representation. During (a) On or prior to, and effective as of, the term of this AgreementClosing Date, to the extent -------------------- they are entitled under and within 30 days after June 30, September 30 and December 31 each year, the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. shall take all action necessary (ai) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of expand the Company's Board of Directors, who initially if necessary, and (ii) to appoint one or more individuals selected by the Purchaser to serve on the Company's Board of Directors as the Purchaser's representatives such that the proportion of the Board that is made up of representatives of the Purchaser as of the Closing Date, or as of the prior June 30, September 30 or December 31, as the case may be, shall equal the proportion of the Company's outstanding shares of Common Stock represented by the shares of Common Stock owned by the Purchaser as of that date (assuming for this purpose the conversion of the Shares and any other Convertible Securities); provided that, if such proportion would cause one-half ------------- or less of a director (in addition to one or more whole directors) to be appointed to the Board as a representative of the Purchaser then such proportion shall be Xxxxxxx Xxxx;rounded down to the nearest whole number, and if such proportion would cause more than one-half of a director (in addition to one or more whole directors) to be appointed to the Board then such proportion shall be rounded up to the nearest whole number; provided further that, notwithstanding the --------------------- foregoing, so long as this Section 8.3 is in effect, the Purchaser shall be entitled to at least one representative on the Company's Board of Directors. If more than one individual is to be appointed to the Board of Directors pursuant to this Section 8.3(a), such individuals shall be distributed as evenly as possible among the three classes of Directors with the first such individual being appointed to Class I, the second to Class II and the third to Class III. (b) Commencing with its 1999 annual meeting of shareholders and in connection with each annual meeting of shareholders thereafter, the Company shall take all reasonable action necessary to nominate and support (in the same manner as it supports the other nominees to its Board at that meeting) one or more individuals for election to the Board of Directors as representatives of the Purchaser such that the proportion of the Board that is made up of representatives of the Purchaser serving on the Company's Board of Directors after such annual meeting of shareholders (assuming the election of the persons so nominated) shall, subject to the two provisos in Section 8.3(a), equal the proportion of the Company's outstanding shares of Common Stock owned by the Purchaser as of the end of the Company's last fiscal year (assuming for this purpose the conversion of the Shares and any other Convertible Securities). In the event that the shareholders of the Company shall fail to elect enough persons to serve as representatives of the Purchaser on the Company's Board of Directors to satisfy the proportional requirements of this Section 8.3, the Board of Directors of the Company shall take any actions necessary to appoint to the Board a different set of individuals selected by the Purchaser to serve as its representatives on the Board such that the proportional requirements are satisfied. Purchaser agrees that it will not select any person to serve as its representative on the Company's Board of Directors pursuant to this Section 8.3 if (i) such person is not reasonably experienced in business, financial or mortgage banking matters, (ii) such person has been convicted of, or has pled nolo contendere to, a felony, (iii) the election of such person would violate any law, or (iv) any event required to be disclosed pursuant to Item 401(f) of Regulation S-K under the Exchange Act has occurred with respect to such person. Purchaser shall use its reasonable efforts to afford the directors of the Company a reasonable opportunity to meet any individual that Purchaser is considering selecting as one of its representative on the Company's Board of Directors. (c) The Founders For so long as the Purchaser has at least one representative on the Company's Board of Directors, (i) the representative will be entitled to receive notice of and attend all meetings of the Investors agree Board of Directors of the Company, to vote receive any materials distributed to the Shares directors in their capacity as such and otherwise to elect one be treated the same as the other directors of the Company, (1ii) designee the Company will give the Purchaser written notice of each regularly scheduled meeting of any duly constituted committee of the Board of Directors (the a "Series A DirectorCommittee") as far in advance as such notice is required to be delivered to the directors (but at least one Business Day prior to the date of 21st Century Internet Fundeach special meeting of any Committee); (iii) the Purchaser will be entitled to receive all written materials and other information (including, L.P. ----------------- without limitation, copies of meeting minutes and press releases) given to directors in connection with such Committee meetings at the same time such materials and other information are given to the directors; ("21st Century"iv) if the Company proposes to take any action by written consent in lieu of a meeting of any Committee of its Board of Directors, the Company will give prompt written notice thereof to the Purchaser prior to the effective date of such consent describing in reasonable detail the nature and substance of such consent; (v) the Company shall maintain a provision in its bylaws providing for the indemnification of its directors to the full extent permitted by the Delaware General Corporation Law; (vi) the Board of Directors of the Company shall consist of no fewer than 8 members; and (vii) if the Board of Directors is to be expanded, then additional representatives of the Purchaser shall be appointed to the Board as necessary to maintain the then required proportion of representatives of the Purchaser on the Board; provided, however, that, ----------------------- notwithstanding clauses (ii), (iii) and (iv) above, the Purchaser shall not be entitled to the rights thereunder if and to the extent that such Committee relates to the Company's relationship with the Purchaser or any transaction in which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------the Purchaser has an interest other than as a shareholder of the Company. (d) The Founders Purchaser may, at its sole discretion at any time and from time to time, elect to waive its right to some or all of the representatives on the Company's Board to which it is entitled under this Section 8.3, and the Investors agree exercise of any such waiver shall not cause the Purchaser's right to vote the Shares such representatives to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;terminate. (e) The Founders and Purchaser hereby agrees that, in the Investors agree event that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares the proportion of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 outstanding shares of Common Stock owned by the Company's Series C Preferred StockPurchaser as of any June 30, each shall vote September 30 or December 31 as described above would indicate that the Shares Purchaser should have fewer representatives on the Board than it has at that time, then the Purchaser will cause one or more of its representatives to elect (1) designee resign so that the Purchaser has the number of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree Board representatives to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicalit is entitled under this Section 8.3. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Preferred Stock Purchase Agreement (New Century Financial Corp)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine seven (97) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx;elect (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (ed) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 100,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 100,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (fe) The Founders and the Investors agree to vote the Shares to elect three two (32) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies vacancy to be filled as soon as reasonably practical. (gf) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Series C Preferred Stock Purchase Agreement (Avantgo Inc)

Board Representation. During (a) As of the term Second Closing Date and until the earlier to occur of the sixth anniversary of the Second Closing Date and the date on which Shareholders own, collectively, less than 20% of the Shares (the "SHAREHOLDER DESIGNEE PERIOD"), the Board of Directors shall consist of no more than twelve (12) directors; PROVIDED, HOWEVER, that if Xx. X'Xxxxx ceases to serve as a director, the Board of Directors shall thereafter consist of no more than eleven (11) directors during the Shareholder Designee Period. For so long as Shareholders are entitled to at least two Shareholder Designees under this Agreement, Shareholders shall be entitled to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote have one Shareholder Designee serve on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as more fully set forth belowbelow with respect to the Nominating Committee. (ab) The Founders On the Second Closing Date, the Company will cause Xxxxx Xxxxxx and one additional person as designated by Shareholders or, subject to SECTION 3.1(D), such other substitute persons as may be designated by Shareholders, to be elected to the Board of Directors. At all times during the Shareholder Designee Period, the Company agrees, subject to SECTION 3.1(D), to support the nomination of, and the Investors agree Company's Nominating Committee (as defined herein) shall recommend to vote the Shares Board of Directors the inclusion in the slate of nominees recommended by the Board of Directors to elect two (2) designees shareholders for election as directors at each annual meeting of shareholders of the Founders Company: (i) no more than two persons who are executive officers of the Company ("Founder Management Directors"), which designees ----------------- (ii) (A) four Shareholder Designees, so long as Shareholders beneficially own 75% or more of the Shares, (B) three Shareholder Designees, so long as Shareholders beneficially own 50% or more but less than 75% of the Shares, (C) two Shareholder Designees, so long as Shareholders beneficially own 25% or more but less than 50% of the Shares and (D) one Shareholder Designee, so long as Shareholders beneficially own 20% or more but less than 25% of the Shares (each a "BENEFICIAL OWNERSHIP THRESHOLD"), provided that if at any time as a result of the Company's issuance of Voting Securities Shareholders beneficially own 9% or less of the Actual Voting Power (the "ACTUAL VOTING POWER THRESHOLD"), Shareholders shall be determined entitled to no more than one Shareholder Designee, and (iii) such other persons, each of whom is (A) recommended by the vote Nominating Committee and (B) not an employee or written consent 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 lest 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 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 Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or 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 that in the case of a vacancy relating to an Unaffiliated Director, if a majority of the Founders' 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 (except 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 Shareholders beneficially own less than 50% of the Shares, and 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 designees shall initially not be Xxxxx Xxx and Xxxxx Xxxxx;further amended by the Board of Directors during the Shareholder Designee Period. Notwithstanding the foregoing, the Company shall 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 Shareholders are in breach of any material provision of this Agreement. (bc) The Founders and Upon any decrease in Shareholders' beneficial ownership of Common Stock below any Beneficial Ownership Threshold or Voting Securities below the Investors agree Actual Voting Power Threshold, Shareholders shall cause a number of Shareholder Designees to vote the Shares offer to elect the Chief Executive Officer of the Company as one (1) member of immediately resign from the Company's Board of DirectorsDirectors such that the number of Shareholder Designees serving on the Board of Directors immediately thereafter will be equal to the number of Shareholder Designees which Shareholders would then be entitled to designate under SECTION 3.1(B). Upon termination of the Shareholder Designee Period, who initially Shareholders shall be Xxxxxxx Xxxx; (c) The Founders promptly offer to cause all of the Shareholder Designees to resign from the Board of Directors and any committees thereof and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee Company's obligations under this SECTION 3.1 shall initially be Xxxxx X. Xxxxxxxxx; ------------terminate. (d) The Founders and Notwithstanding the Investors agree provisions of this SECTION 3.1, Shareholder shall not be entitled to vote designate any person to the Shares Company's Board of Directors (or any committee thereof) in the event that the Company receives a written opinion of its outside counsel that a Shareholder Designee would not be qualified under any applicable law, rule or regulation to elect one serve as a director of the 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 (1) designee (the "Series B Director"e) of Adobe Ventures IISchedule 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, L.P. 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 Shareholder shall withdraw the designation of such proposed Shareholder Designee and designate a replacement therefor ("Adobe"which replacement Shareholder Designee shall also be subject to the requirements of this Section), ----------------- ----- . The Company shall use its reasonable best efforts to notify the Shareholder of any objection to a Shareholder Designee sufficiently in advance of the date on which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;proxy materials are mailed by the Company in connection with such election of directors to enable the Shareholder to propose a replacement Shareholder Designee in accordance with the terms of this Agreement. (e) The Founders and Each Shareholder Designee serving on the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares Board of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies entitled to be filled as soon as reasonably practical. (g) This Agreement shall be limited all compensation and stock incentives granted to voting for the election of directors who are not employees of the Company and shall not extend on the same terms provided to voting upon questions and matters (other than the election of such directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Shareholder Agreements (Blackstone Capital Partners Ii Merchant Banking Fund Et Al)

Board Representation. During (a) Until the term 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 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 the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote have one Shareholder Designee serve on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members each committee of the Board of Directors other than any committee formed for the purpose of considering matters relating to the Shareholders and as more fully set forth belowbelow with respect to the Nominating Committee. (ab) The Founders Immediately following the purchase of shares of Senior Preferred Stock pursuant to the Preferred Stock Purchase Agreement, the Company will cause Xxxxx Xxxxxxx to be elected or appointed to the Board of Directors. At all times during the Shareholder Designee Period, the Company agrees, subject to Section 3.1(d), to support the nomination of, and the Investors agree Company's Nominating -------------- Committee (as defined herein) shall recommend to vote the Shares Board of Directors the inclusion in the slate of nominees recommended by the Board of Directors to elect two (2) designees shareholders for election as directors at each annual meeting of shareholders of the Founders Company: (i) no more than two persons who are executive officers of the Company ("Founder Management Directors"), which designees ----------------- shall be determined by (ii) (A) five Shareholder Designees, so long -------------------- as the vote Apollo/Blackstone Shareholders beneficially own 80% or written consent of a majority more of the Founders' 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 Apollo/Blackstone Shares, (C) three Shareholder Designees, so long as the Apollo/Blackstone Shareholders beneficially own 40% or more but less than 60% of 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 the Apollo/Blackstone Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (bE) The Founders and one Shareholder Designee, so long as the Investors agree to vote the Shares to elect the Chief Executive Officer Apollo/Blackstone Shareholders beneficially own 10% or more but less than 20% of the Company Apollo/Blackstone Shares (each a "Beneficial Ownership Threshold"); ------------------------------ provided, however, that if at any time as one (1) member a result of the Company's Board issuance of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and -------- ------- Voting Securities the Investors agree to vote Shareholders beneficially own 9% or less of the Shares to elect one (1) designee Actual Voting Power (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st CenturyActual Voting Power Threshold"), which designee the Apollo/Blackstone ----------------------------- Shareholders shall initially be Xxxxx X. Xxxxxxxxx; ------------ entitled to no more than three Shareholder Designees (deven if the Apollo/Blackstone Shareholders would otherwise be entitled to a greater number of Shareholder Designees pursuant to clauses (A) The Founders and the Investors agree to vote the Shares to elect one through (1E) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"above), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (iiiii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stocksuch other persons, each shall vote of whom is (A) recommended by the Shares Nominating Committee and (B) not an employee or officer of or outside counsel to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or a partner, employee, director, officer, affiliate or associate (as defined in Rule 12b-2 under the laws 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 State of Delaware.voting equity securities ("Unaffiliated ------------ Directors"

Appears in 1 contract

Samples: Shareholder Agreement (Apollo Investment Fund Iii Lp)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer that own Series A Preferred Stock of the Company as one agree that they shall cooperate and use their best efforts, including, without limitation, voting their shares of Series A Preferred Stock of the Company (1but not voting their shares of Common Stock or any other securities of the Company held by them other than shares of Series A Preferred Stock owned by them) so that (i) One member of the Company's Board of Directors, who initially Directors shall be Xxxxxxx Xxxx;a person designated from time to time by a majority in interest held by Venrock Associates and Venrock Associates II, L.P.; and (cii) The Founders and One member of the Investors agree Company's Board of Directors shall be a person designated from time to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe time by a majority in interest held by Forward Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;and Forward Ventures Vanguard Fund. (eb) The Founders and Investors that own Series B Preferred Stock of the Investors Company as of the closing agree that they shall cooperate and use their best efforts, including, without limitation, voting their shares of Series B Preferred Stock of the Company (but not voting their shares of Common Stock or any other securities of the Company held by them other than shares of Series B Preferred Stock owned by them) so that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares One member of the Company's Series C Preferred Stock, each Board of Directors shall vote the Shares be a person designated from time to elect one (1) designee time by The Wellcome Trust Limited as trustee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and The Wellcome Trust; and (ii) in the event Sleepy Hollow owns less than 200,000 shares One member of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee Board of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be a person designated from time to time by a majority in interest held by Xxxxxx XxxxxXxXxxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.Xxxx X. XxXxxxxx, Xxxxx XxXxxxxx, Xxxxxx Xxxxxx, Xxxxxx & Xxxxxx Xxxxxx XxXxxxxx Trustees, U/A DTD 9/22/71 F/B/O Xxxxxxxxx Cutting XxXxxxxx Trust, Xxxxxxxxx X.

Appears in 1 contract

Samples: Investors' Rights Agreement (Wellcome Trust LTD)

Board Representation. During Upon the term Purchaser's acquisition of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate an aggregate of Incorporation fifteen percent (the "Restated Certificate"15%) to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's issued and outstanding shares of voting securities now or hereafter owned by themcommon stock, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company shall increase the size of its Board of Directors 8 to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect shall appoint two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined directors nominated by the vote Purchaser. Thereafter, for so long as the Purchaser owns fifteen percent (15%) or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; more up to twenty percent (b20%) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's issued and outstanding shares of voting common stock, the Company shall include in its slate of director nominees the two (2) directors nominated by the Purchaser at the Company's annual meeting of stockholders. Upon the Purchaser's acquisition of an aggregate of twenty percent (20%) of the Company's issued and outstanding shares of voting common stock, the Company shall increase the size of its Board of DirectorsDirectors to ten (10) and shall appoint another director for a total of three (3) directors nominated by the Purchaser. Thereafter, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. the Purchaser owns twenty percent ("Sleepy Hollow"20%) owns not less than ------------- 200,000 shares or more of the Company's Series C Preferred Stockissued and outstanding shares of voting common stock, each the Company shall vote include in its slate of director nominees the Shares to elect one three (13) designee directors nominated by the Purchaser at the Company's annual meeting of Sleepy Hollowstockholders. Thereafter, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow that the number of directors is changed, the Purchaser shall be entitled to nominate thirty percent (30%) of the directors rounded to the nearest whole number, provided however, if the Purchaser owns less than 200,000 shares twenty (20%) but more than fifteen percent (15%), then the number of directors Purchaser may nominate shall be reduced to twenty two percent (22%) of the directors rounded to the nearest whole number. However, in the event that Purchaser owns less than fifteen percent (15%) but more than ten percent (10%), then the number of directors Purchaser is entitled to nominate shall be reduced to ten percent (10%) of the number of directors rounded to the nearest whole number. Finally, if Purchaser owns less than ten percent (10%) of the Company's Series C Preferred Stockissued and outstanding shares, each shall vote then the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for the election of directors of the Company and Purchaser shall not extend be entitled to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delawarenominate any director.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aremissoft Corp /De/)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation Each Stockholder agrees (the "Restated Certificate"a) to vote on its Shares to fix the number of directors at nine until a particular matter, Remedy Event occurs and thereafter to fix the -------------------- Founders number of directors at the number contemplated by Section 4.3 and the Investors agree (b) to vote all of the shares of the Company's voting securities now or hereafter Shares owned by them, whether beneficially or otherwise such party (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing i) to elect as directors, so as to cause three persons nominated by the total number of authorized directors of the Company to Covered Stockholders, which persons shall initially be not more or less than nine Xxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, (9ii) and to elect members of the Board of Directors as more fully set forth below. a director a person designated by BCI, so long as BCI holds Investor Securities, which person shall initially be Xxxxxx X. Xxxxx, (aiii) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors")as a director a person designated jointly by NAVF and VVCF, so long as each holds Investor Securities, which designees ----------------- person shall initially be determined Xxxxxxx X. Xxxxxx, (iv) to elect as a director a person designated by the vote or written consent holders of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C D Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee person shall initially be Xxxxxxx XxxxxxxX. Xxxxxx, and (iiv) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect as a director a person designated by NWI, which person shall initially be C. Xxxxxx Xxxxxxx; provided; however, that if NWI shall fail to designate such a person, the Required Holders may designate a person to fill such position; (1vi) designee to elect as directors two independent representatives, one of which shall be designated by the Covered Stockholders and one of which shall be designated by a majority of the holders of the Series C Preferred Stock then outstanding (in either caseeight directors designated pursuant to this Section 4.1, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors person shall initially be Xxxxxx XxxxxXxxx X. Xxxxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement provided, however, that no independent representative shall be limited an Affiliate of either the Company, any of the Required Holders or the Management Stockholders and (vii) after a Remedy Event has occurred, to voting for the election of elect as additional directors of the Company such persons nominated by the Investors as is contemplated by Section 4.3 and shall not extend to voting upon questions and matters continue to vote for such persons (other than or any successors nominated by the election of directorsInvestors, as the case may be) upon which stockholders as directors of the Company have a right to vote under until the Restated Certificate or Bylaws of the Company or under the laws of the State of DelawareRemedy Event is cured.

Appears in 1 contract

Samples: Stockholders Agreement (Casella Waste Systems Inc)

Board Representation. During (a) Effective as of the term Restructuring Closing, for so long as this Section 2.1 remains in effect, and subject to Communications Laws, the Board shall consist of up to seven (7) Directors of whom: (i) Five (5) shall be designated or nominated by Stockholder Group 1 (such persons, the “Stockholder Group 1 Directors”) as follows: (A) Three (3) of the Stockholder Group 1 Directors shall be designated by Laurel Tree or its Permitted Transferees; provided, if at any time Laurel Tree or its Permitted Transferees hold at least a majority of the outstanding Common Stock on a fully diluted basis, four (4) of the Stockholder Group 1 Directors shall be designated by Laurel Tree or its Permitted Transferees (such persons, the “Laurel Tree Directors”); provided, further, that if Laurel Tree or its Permitted Transferees hold, together, less than 80% of its Original Shares, Laurel Tree shall no longer be entitled to designate any Stockholder Group 1 Directors pursuant to this AgreementSection 2.1(a)(i)(A); and (B) The remaining members of Stockholder Group 1 (excluding Laurel Tree for so long as Laurel Tree retains the right to designate any directors pursuant to Section 2.1(a)(i)(A)) shall have the right to nominate for election the remaining Stockholder Group 1 Directors not designated by Laurel Tree pursuant to paragraph (A) above (such persons, the “Stockholder Group 1 Nominees”). (ii) One (1) shall be nominated by Stockholder Group 2 and shall be, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all reasonable satisfaction of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent holders of a majority of the Founders' Sharesshares of Class A Common Stock held by Stockholder Group 1, an expert or specialist in the industry of the Company Business (such person, the “Stockholder Group 2 Nominee” and, if elected, the “Stockholder Group 2 Director”; and, together with the Stockholder Group 1 Directors, the “Stockholder Group Directors”); provided, however, that if Stockholder Group 2 holds, together, less than 80% of its aggregate Original Shares (assuming the full exercise of any Special Warrants and which designees 2L Warrants held by Stockholder Group 2) or less than 1% of the outstanding Common Stock on a fully diluted basis in the aggregate, Stockholder Group 2 shall no longer be entitled to nominate a candidate for election to the Board pursuant to this Section 2.1(a)(ii). (iii) One (1) shall be the principal executive officer of the Company which, for the avoidance of doubt, shall initially be Xxxxx Xxx and Xxxxx Xxxxx;, the Chief Executive Officer (the “CEO”), for so long as the CEO (or such person’s replacement) is employed by the Company or its Subsidiary or Affiliate. (b) The Founders Stockholder Group 1 Nominees and the Investors agree to vote Stockholder Group 2 Nominee shall become Directors upon the Shares to elect the Chief Executive Officer approval of the Company as one (1) member holders of a majority of the Company's Board then outstanding shares of DirectorsClass A Common Stock; provided, who initially however, that if any Stockholder Group 1 Nominee or Stockholder Group 2 Nominee is not so elected, Stockholder Group 1 (excluding Laurel Tree) or Stockholder Group 2, as applicable, shall be Xxxxxxx Xxxx;continue to have the right to nominate additional candidates for election until such time as a Stockholder Group 1 Nominee or Stockholder Group 2 Nominee, as applicable, is duly elected to the Board. (c) The Founders and All Directors designated or nominated, as applicable, pursuant to this Section 2.1 shall be qualified under the Investors agree Communications Laws to vote hold attributable interests (as such term is used in the Shares to elect one Communications Laws) in the Company. Neither any of the Stockholder Group 1 Nominees nor the Stockholder Group 2 Nominee shall be an employee or agent of any member of Stockholder Group 1 or Stockholder Group 2 who does not otherwise hold an attributable interest (1as such term is used in the Communications Laws) designee (in the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------Company unless any necessary regulatory approvals are obtained from the Federal Communications Commission. (d) The Founders To the extent that Stockholder Group 1 or Stockholder Group 2 loses the ability to designate or nominate (as applicable) one or more Directors as described above for failing to hold the applicable minimum amount of Common Stock (assuming, in the case of Stockholder Group 2, the exercise of any Special Warrants and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"2L Warrants held by Stockholder Group 2), ----------------- ----- which designee then such Board seat(s) shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx;filled by majority vote of the holders of Class A Common Stock. (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each A Stockholder Group 1 Director shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the selected by a majority of the holders Stockholder Group 1 Directors to serve as the Chairman of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and -----------------Board. (f) The Founders Except as otherwise set forth in Section 2.1(a) above for the election of directors, each share of Class A Common Stock shall be entitled to one vote and the Investors agree holders thereof shall be entitled to vote for all such matters that are put to the Shares Shareholders for approval under the Company’s Governing Documents and applicable law. The shares of Class B Common Stock, any equity provided under the Equity Incentive Plan and any other Company Securities shall be non-voting except as otherwise provided in the Company’s Governing Documents. (g) The Company shall take such action as may be required under applicable law to elect three (3) designees cause the Board to consist of the majority Directors specified in Sections 2.1(a) and 2.1(d) above. The Company further agrees to include in the slate of nominees recommended by the directors Board the Stockholder Group 1 Nominees and Stockholder Group 2 Nominees as required hereby. (h) In the "Outside Directors")event that a vacancy is created at any time by the death, ----------------- which Outside Directors shall initially be Xxxxxx Xxxxxdisability, retirement, resignation or removal (with or without cause) of any Director designated or elected pursuant to Section 2.1(a) above, the remaining vacancies Directors and the Company shall cause the vacancy created thereby to be filled as soon as reasonably practicalpossible by a new designee or nominee, as applicable, of the Stockholder(s) who have the right to designate or nominate for election such Director, as set forth in this Section 2.1, and the Company hereby agrees to take, at any time and from time to time, all actions necessary to accomplish the same. (gi) This Agreement Each of the Stockholders agrees to vote promptly, or act by written consent with respect to, any Voting Securities beneficially owned by it, at each annual or special meeting of Stockholders at which Directors are to be elected or to take all actions by written consent in lieu of any such meeting as are necessary, to cause the Board to be comprised as set forth in this Section 2.1; provided, however, that no Stockholder shall be limited obligated to voting vote in favor of the Stockholder Group 1 Nominee(s) or the Stockholder Group 2 Nominee. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal (with or without cause) of any Director designated or elected pursuant to Section 2.1(a) and the remaining Directors pursuant to Sections 2.1(g) and 2.1(h) have not caused the vacancy created thereby to be filled by a new designee of the applicable Stockholder, then in such case each Stockholder hereby agrees to take, at any time and from time to time, all actions necessary to fill such vacancy as provided in Section 2.1(g). Upon the written request of Laurel Tree, each other Stockholder shall vote promptly, or act by written consent with respect to, all Voting Securities beneficially owned by it and otherwise take or cause to be taken all actions necessary to remove any Director designated by Laurel Tree pursuant to Section 2.1(a) and to elect any replacement Director so designated by Laurel Tree. Any Director other than a Laurel Tree Director may be removed for cause from the Board at any time (with or without consent) by a vote of the majority of the shares of Class A Common Stock, and the Stockholders having the right to designate or nominate (as applicable) such Director shall have the sole right to designate or nominate (as applicable) any replacement thereof. (j) The Company shall reimburse each Director for reasonable out-of-pocket expenses incurred by them for the election purpose of directors attending meetings of the Board or committees thereof, subject to the Company’s expense reimbursement policies in effect from time to time. The Company and agrees all Directors (except for any Stockholder Group Director that is an employee of a Stockholder of Stockholder Group 1 or Stockholder Group 2, subject to Section 2.1(c) above) shall not extend be entitled to voting upon questions and matters the same compensation as may be approved by the Board from time to time. (other than k) In the election of directors) upon which stockholders event that, as a consequence of the Company provisions of Section 2.1(d), a Stockholder or group of Stockholders shall cease to have a the right to designate a Director in accordance with this Section 2.1, such Stockholder or group of Stockholders shall cause such Director(s) to resign from the Board immediately and such Board seat(s) shall be filled by majority vote under the Restated Certificate or Bylaws of the Company or under holders of shares of Class A Common Stock. In the laws event of any increase in the size of the State Board, the Stockholders shall act promptly to cause a proportional increase in the number of DelawareStockholder Group Directors (including Laurel Tree Directors) such that the composition of the Board immediately following the increase in the number of Directors shall reflect the relative number of Stockholder Group Directors that each Stockholder had been entitled to designate or nominate, as applicable, immediately prior to such increase. (l) The Company agrees to cause at least one meeting of the Board to be held each fiscal quarter, and to make provisions such that any member of the Board may attend such meetings by remote means (e.g., by telephone or video conference). (m) The Company shall maintain a directors’ and officers’ liability insurance policy with such levels of coverage as are reasonably appropriate for a company in the Company Business of the size of the Company.

Appears in 1 contract

Samples: Shareholders Agreement (Audacy, Inc.)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate"a) to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all At each election for directors of the shares of the Company's voting securities now or hereafter owned by themCorporation, whether beneficially or otherwise (the "Shares")at a stockholders meeting, by written consentaction by the stockholders of the Corporation or by an action taken by the Board of Directors of the Corporation, or at any annual or special ------ meeting called for the purpose Stockholders shall be entitled to nominate to the Corporation's Board of electing Directors, a number of directors, so as which, when added to cause the continuing directors on the Corporation's Board of Directors who were previously designated by the Stockholders pursuant to this Section 6(a) and Section 6(b), is equal to the Stockholder Percentage multiplied by the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders Corporation (rounded up to the nearest whole number) (the "Founder DirectorsStockholder Designees"), which designees ----------------- . The "Stockholder Percentage" shall be determined in the following manner: Percentage of Outstanding Common Stock Held by the vote Stockholders Stockholder Percentage ------------------------------------ ---------------------- 35% or written consent more 56% 27% or more but less than 35% 42% 19% or more but less than 27% 28% 10% or more but less than 19% 14% less than 10% 0% The Corporation shall cause the Stockholder Designees (unless, after customary investigation of a majority any Stockholder Designee's qualifications, the Board of Directors of the Founders' SharesCorporation reasonably determines in good faith that such person is not qualified or acceptable under standards applied fairly and equally to all nominees, in which event the Stockholders shall designate another person that meets the foregoing standards) to be included in the slate of nominees recommended by the Board of Directors of the Corporation or the nominating committee of the Board of Directors to the Corporation's stockholders for election as directors, and which designees the Corporation shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree use its best efforts to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of Directors, who initially shall be Xxxxxxx Xxxx; (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders and the Investors agree to vote the Shares to elect one (1) designee (the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; (e) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director"); and ----------------- (f) The Founders and the Investors agree to vote the Shares to elect three (3) designees of the majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practical. (g) This Agreement shall be limited to voting for cause the election of directors the Stockholder Designees in such stockholder elections, including voting all shares for which the Corporation holds proxies (unless otherwise directed by the stockholder submitting such proxy) or is otherwise entitled to vote, in favor of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of DelawareStockholder Designees.

Appears in 1 contract

Samples: Stockholders' Agreement (Special Metals Corp)

Board Representation. During (a) So long as at least 300,000 shares of Series A Preferred Stock (as adjusted for stock splits, stock dividends, recapitalizations and the term of this Agreement, to the extent -------------------- they like) are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matteroutstanding, the -------------------- Founders and the Investors parties hereto agree to vote all of the or act with respect to their shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine (9) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two (2) designees of the Founders (the "Founder Directors"), which designees ----------------- shall be determined by the vote or written consent of a majority of the Founders' Shares, and which designees shall initially be Xxxxx Xxx and Xxxxx Xxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member of the Company's Board of DirectorsDirectors designated by holders of the majority of the Series A Preferred Stock, who initially whose initial designee shall be Xxxxxxx Xxxx;Xxxxx Xxxxx, (cb) The Founders So long as at least 3,000,000 shares of Series B and Series C Preferred Stock (as adjusted for stock splits, stock dividends, recapitalizations and the Investors like) are outstanding, the parties hereto agree to vote the Shares or act with respect to their shares so as to elect one (1i) designee two (2) members of the "Company's Board of Directors designated by the holders of the majority of then-outstanding Series A Director") of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------ (d) The Founders B and the Investors agree to vote the Shares to elect one (1) designee Series C Preferred Stock (the "Series B Director") of Adobe Ventures II, L.P. ("Adobeand Series ------------------- C Directors"), ----------------- ----- which designee whose initial designees shall initially be Xxxxxxxxxxx X. Xxxxxxxxxx; Xxxxx Xxxxx and Xxx Xxxxxxxxxxx; ----------- and (eii) The Founders and the Investors agree that one (i1) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares member of the Company's Board of Directors nominated by the Series B and Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, Directors and (ii) in the event Sleepy Hollow owns less than 200,000 shares approved by a majority of the Company's Board of Directors other than the Series B and Series C Preferred StockDirectors, each whose initial designee shall vote the Shares to elect be Xxxxxxx Xxxxxxx. (1c) designee of the majority of the holders So long as Xxxx South holds at least 75% of the Series C Preferred Stock then outstanding (in either casepurchased by it, the "Series C Director"); and ----------------- (f) The Founders and the Investors parties hereto agree to vote the Shares or act with regard to their shares so as to elect three (3) designees one member of the majority Company's Board of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicaldesignated by BellSouth. (gd) This Agreement shall be limited The parties hereto agree to voting for vote or act with respect to their shares so as to elect the election of directors Chief Executive Officer of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders Company, who is Xxxxxx Xxxxxxx as of the Company have a right date of this Agreement, provided, however, that such person shall resign as director upon termination or resignation as Chief Executive Officer, such resignation to vote under the Restated Certificate be effective upon termination or Bylaws of the Company or under the laws of the State of Delawareresignation from such office, without further action by such person.

Appears in 1 contract

Samples: Voting Agreement (Flycast Communications Corp)

Board Representation. During the term of this Agreement, to the extent -------------------- they are entitled under the Company's Fifth Amended and Restated Certificate of Incorporation (the "Restated Certificate") to vote on a particular matter, the -------------------- Founders and the Investors agree to vote all of the shares of the Company's voting securities now or hereafter owned by them, whether beneficially or otherwise (the "Shares"), by written consent, or at any annual or special ------ meeting called for the purpose of electing directors, so as to cause the total number of authorized directors of the Company to be not more or less than nine five (95) and to elect members of the Board of Directors as more fully set forth below. (a) The Founders and the Investors agree to vote the Shares to elect two three (23) designees of the Founders (the "Founder Directors")Founders, which designees ----------------- shall be determined by the vote or written consent of a majority of the Shares held by the Founders' Shares, and which designees shall initially be Xxxxx Xxx Xxx, Xxxxx Xxxxx and Xxxxx XxxxxXxxxxx Xxxxxxxxx; (b) The Founders and the Investors agree to vote the Shares to elect the Chief Executive Officer of the Company as one (1) member designee of the Company's Board of DirectorsInvestors, who which designee shall initially shall be Xxxxxxx Xxxx;Xxxxx X. Xxxxxxxxx; and (c) The Founders and the Investors agree to vote the Shares to elect one (1) designee who shall be appointed with the unanimous consent of the directors identified in 1(a) and (the "Series A Director"b) of 21st Century Internet Fund, L.P. ----------------- ("21st Century"), which designee shall initially be Xxxxx X. Xxxxxxxxx; ------------above. (d) The If a majority of the Board of Directors determines that it is in the best interests of the Company to designate an additional non-employee director and there is at such time no vacancy on the Board of Directors, the Founders and the Investors agree to elect as directors the following designated nominees: (i) two (2) designees determined by the vote or written consent of a majority of the Shares to elect one (1) designee (held by the "Series B Director") of Adobe Ventures II, L.P. ("Adobe"), ----------------- ----- which designee shall initially be Xxxxxxxxxxx X. XxxxxxxxxxFounders; (eii) The Founders and the Investors agree that (i) for so long as Sleepy Hollow Investment Partnership, L.P. ("Sleepy Hollow") owns not less than ------------- 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect one (1) designee of Sleepy Hollow, which designee shall initially be Xxxxxxx Xxxxxxx, and (ii) in the event Sleepy Hollow owns less than 200,000 shares of the Company's Series C Preferred Stock, each shall vote the Shares to elect (1) designee of the majority of the holders of the Series C Preferred Stock then outstanding (in either case, the "Series C Director")Investors; and -----------------and (fiii) The Founders and the Investors agree to vote the Shares to elect three two (32) designees who shall be appointed with the consent of the a majority of the directors (the "Outside Directors"), ----------------- which Outside Directors shall initially be Xxxxxx Xxxxx, with the remaining vacancies to be filled as soon as reasonably practicalthen in office. (ge) This Agreement shall be limited to voting for the election of directors of the Company and shall not extend to voting upon questions and matters (other than the election of directors) upon which stockholders of the Company have a right to vote under the Restated Certificate or Bylaws of the Company or under the laws of the State of Delaware.

Appears in 1 contract

Samples: Series a Preferred Stock Purchase Agreement (Avantgo Inc)

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