Board Representative. (a) At the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles to implement the Charter Amendment (as defined herein), the Company shall (i) propose an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated for election to the Board at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such that a vacancy is created on the Board, the Majority Holders may propose to the Board another nominee for election to the Board, pursuant to the procedures set forth in Section 2(b), and the Company shall appoint such New Independent Director as a director to fill such vacancy. (b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company. (c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable. (d) The election or appointment of a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date. (e) At all times while serving as a member of the Board (and as a condition to such service), the New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e) by the New Independent Director. (f) Should the New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of the New Independent Director) will have the right to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement to the Board if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which the New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein). (g) On each date that a New Independent Director or a Replacement is nominated pursuant to this Agreement, each member of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Notes (which Notes, for the avoidance of doubt, may have been acquired in the Exchange or thereafter by such Holder).
Appears in 1 contract
Board Representative. (a) At In the event that a current director of the Company who is not a Section 4.15 Director, as defined in Section 2 of Schedule A to the Company’s Articles of Reorganization, resigns or becomes unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term and a New Independent Director is not then a director of the Company, the Company shall nominate one (1) nominee to serve as a new independent director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld (each such nominee, a “New Independent Director”). As soon as practicable after nomination, the directors of the Company shall cause such New Independent Director to be appointed as a director of the Company and, at the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, the Company shall cause such New Independent Director to be nominated for election as a director of the Company at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected as a director of the Company at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board).
(b) Provided that no New Independent Director has been appointed as a director of the Company by the directors of the Company in accordance with Section 2(a), at the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles to implement the Charter Amendment (as defined herein), the Company shall (i) propose an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Company Board by one (1) director from seven (7) directors to eight (8) directors and (ii) ), subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated for election to as a director of the Board Company at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected to as a director of the Board Company at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such that a vacancy is created on the Board, the Majority Holders may propose to the Board another nominee for election to as a director of the BoardCompany, pursuant to the procedures set forth in Section 2(b2(c), and the directors of the Company shall appoint call a meeting of shareholders to vote on the election of such New Independent Director as a director of the Company to fill such vacancy.
(bc) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a2(b)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the New Independent Director Criteria, (B) have been designated by for nomination as a director of the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheldCompany. The Company shall cause such nominee (the “New Independent Director”) Director to be nominated for election to as a director of the Board Company at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to as a director of the Board Company at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). .
(d) Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company.
(c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable.
(de) The election or appointment of a New Independent Director pursuant to Section 2(a), Section 2(b) or Section 2(b2(c) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a), Section 2(b) or Section 2(b2(c), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to as a director of the BoardCompany, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(ef) At all times while serving as a member of the Board (and as a condition to such service), the a New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e2(f) by the a New Independent Director.
(fg) Should the a New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of the such New Independent Director) will have the right to recommend for appointment to as a director of the Board Company one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement to as a director of the Board Company if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for the a New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which the a New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein).
(gh) On each date that a New Independent Director or a Replacement is nominated pursuant to this Agreement, each member of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Notes (which Notes, for the avoidance of doubt, may have been acquired in the Exchange or thereafter by such Holder).
(i) The Holders acknowledge that under no circumstances will the Company be required to nominate, elect or appoint more than one (1) New Independent Director as a director of the Company.
Appears in 1 contract
Samples: Director Nomination Agreement (Ultra Petroleum Corp)
Board Representative. (a) At With respect to each of the 2019 Annual Meeting Lead Investors, so long as either (i) the Note issued to such Lead Investor remains outstanding or (ii) such Lead Investor (together with its Affiliates) owns at least an aggregate of Shareholders 5% of the issued and outstanding shares of Restoragen Common Stock (assuming conversion of the Notes and conversion of all Restoragen Preferred Stock), Restoragen shall permit each such Lead Investor to designate one person as a voting member of the Board of Directors. If such Lead Investor's representative has a change in employment responsibilities or ceases to be employed by such Lead Investor, such Lead Investor shall be entitled to designate a replacement for its representative. Each Lead Investor's representative shall receive all notices, documents, and other information in the same time and manner as such information is supplied to members of the Board of Directors. Restoragen shall make reasonable efforts to permit such Lead Investor's representative to participate in Board of Directors meetings by telephone if such representative is unable to attend in person. Restoragen agrees to pay the reasonable expenses incurred by such Lead Investor's representative in connection with attending Board of Directors meetings if and to the extent that Restoragen pays any expenses of any other member of the Board of Directors.
(b) Each of the Lenders who are part of the SMS Group acknowledges that Erich Sager, who is already a member of the Company's Board of Xxxxxxxxx, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles shall initially be their designated representative. Restoragen agrees to implement the Charter Amendment (as defined herein), the Company shall (i) propose an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated Medtronic's designee for election to the Board of Directors and to use its best efforts to cause Medtronic's designee to be so elected within 60 days after Restoragen's receipt of Medtronic's written notice of the identity of its representative. In any and all future elections of directors of Restoragen (whether at a meeting or by written consent in lieu of a meeting), each of the Lenders shall vote or cause to be voted all shares of Restoragen capital stock now or hereafter owned by such Applicable Meeting Lender, or over which such Lender has voting control, and shall recommend otherwise use such Lender's best efforts, so as to holders of Voting Securities that such New Independent Director be elected elect each Lead Investor's representative to the Board at of Directors. No Lender shall vote to remove any Lead Investor's representative from the Board or Directors unless requested in writing by such Applicable Meeting (and shall Lead Investor. Each Lender hereby agrees that such Lender will not nominatesell, recommend transfer or otherwise endorse dispose of (or enter into a binding agreement to sell, transfer or otherwise dispose of) all or any competing nominee of such Lender's shares of Restoragen capital stock, whether now owned or hereafter acquired, except for transfers to fill the vacancy on the Board created persons who agree to be bound by the Charter Amendment)provisions of this Section 3.2 with respect to such transferred shares. If Each Lender and Restoragen agree to cause a legend to be printed on all certificates issued or reissued on or after the Company’s Articles date hereof representing shares of Restoragen capital stock owned beneficially or of record by a Lender with the following legend: "The shares represented by this certificate are amended subject to implement the Charter Amendment but Section 3.2 of a New Independent Director is not approved by the Shareholders such that a vacancy is created on the BoardBridge Loan Agreement dated December 13, the Majority Holders may propose to the Board another nominee for election to the Board2001 among Medtronic International, pursuant to the procedures set forth in Section 2(b)Ltd., Restoragen Inc. and the Company shall appoint such New Independent Director as a director to fill such vacancyregistered holder hereof.
(b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company."
(c) If Each Lead Investor shall receive from Restoragen notices of all meetings of the Charter Amendment is approved Board of Directors, including without limitation telephonic meetings, and becomes effectiveeach Lead Investor shall receive, with such limitations provided herein, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting materials distributed for such meeting, and may send one representative to be the New Independent Director shall be elected or appointed to the Board as soon as practicablesuch meetings.
(d) The election or appointment of a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed Medtronic's and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(e) At all times while serving as a member of the Board (and as a condition to such service), the New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e) by the New Independent Director.
(f) Should the New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of the New Independent Director) will have the right to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement to the Board if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which the New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein).
(g) On each date that a New Independent Director or a Replacement is nominated SMS Group's rights pursuant to this Agreement, each member Section 3.2 shall terminate upon the closing of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Notes (which Notes, for the avoidance of doubt, may have been acquired in the Exchange or thereafter an initial public offering by such Holder)Restoragen.
Appears in 1 contract
Board Representative. Provided that after giving effect to the Initial Closing the Purchasers will own shares of Class A Common Stock representing in the aggregate at least 9.0% of the outstanding Class A Common Stock after taking into account the purchase by the Purchasers herein and the purchases by Other Investors then being completed, as set forth on Schedule 3.1(a)(ii):
(a) At Prior to the 2019 Annual Meeting of Shareholders of the Company, and at each subsequent Applicable Meeting during the Term, until the amendment of the Company’s Articles to implement the Charter Amendment (as defined herein)Initial Closing, the Company Corporation shall (i) propose an amendment take all requisite corporate action to increase the size of its Board of Directors and Equity Bank’s Board of Directors to accommodate the appointment of one person nominated by the Purchasers to each such Board (the “Charter AmendmentBoard Representative”) ). Unless the Corporation or Equity Bank shall have received any objection from the Federal Reserve with respect to the Company’s Articles to increase the maximum number of directors of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve his service as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendmenta director, the Company shall cause such New Independent Director to be nominated for election to the Board at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such that a vacancy is created on the Board, the Majority Holders may propose to the Board another nominee for election to the Board, pursuant to the procedures set forth in Section 2(b), and the Company shall appoint such New Independent Director as a director to fill such vacancy.
(b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and Corporation shall cause the Board Representative to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company.
(c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Corporation’s Board of Directors and Equity Bank’s Board of Directors effective as soon of the Initial Closing. If the foregoing actions have not been taken by the Corporation and Equity Bank at or prior to the Initial Closing, the Corporation shall, and shall cause Equity Bank to, take such actions as practicablepromptly as practicable after the Initial Closing, and in any event prior to there being any meeting of or any action taken by either the Corporation’s or Equity Bank’s Board of Directors (including any action by written consent), such that the Board Representative is serving on such Boards prior to the time either such Board first meets or otherwise takes action following the Initial Closing.
(db) The election From and after the Initial Closing, so long as the Purchasers have not sold, transferred or appointment otherwise disposed of, in the aggregate, seventy-five percent (75%) or more of the securities being acquired hereunder, (A) the Corporation’s and Equity Bank’s nominating committees (or any other committee exercising a New Independent Director similar function) shall recommend to the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, that the Board Representative (or any successor designated by the Purchasers pursuant to Section 2(a4.15(c) or Section 2(b) will below), be subject included in the slate of nominees recommended by the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive stockholders for election as directors at each annual meeting of stockholders of the Board Corporation or Equity Bank at which such person’s term expires and which (B) the Corporation shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should cause the Board and Representative (or any successor designated by the Majority Holders be unable to mutually agree upon a New Independent Director Purchasers pursuant to Section 2(a4.15(c) or Section 2(b), the Majority Holders will below) to be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(e) At all times while serving as a member of the Corporation’s Board (of Directors and as a condition to such service), the New Independent Director shall (i) comply with Equity Bank’s Board of Directors at all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e) by the New Independent Directortimes.
(fc) Should From and after the New Independent Director resign from Initial Closing, so long as the Purchasers have not sold, transferred or otherwise disposed of, in the aggregate, seventy-five percent (75%) or more of the securities being acquired hereunder, if the Board or become unable Representative shall cease to serve as a director of the Company due Corporation’s Board of Directors or Equity Bank’s Board of Directors for any reason, which results in a vacancy on the Corporation’s Board of Directors or Equity Bank’s Board of Directors, as applicable, the Corporation shall cause the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, to deathtake all action required to fill the vacancy resulting therefrom with a person designated by the Purchasers, disability who shall thereafter be the Board Representative hereunder.
(d) The Board Representative shall have the right, at such person’s option and subject to any applicable exchange listing standards and independence requirements, to serve on up to two committees of each of the Corporation’s Board of Directors and Equity Bank’s Board of Directors, it being understood and agreed that the foregoing shall not restrict the Board Representative from serving on any other committee to which he is appointed by the Corporation’s Board of Directors and Equity Bank’s Board of Directors; provided that the Board Representative shall not serve as chairman or other reasons prior vice-chairman (or in any similar capacity) of any such committee or represent more than twenty-five percent (25%) of the members of any such committee.
(e) The Board Representative shall be entitled to the expiration of same indemnification in connection with his or her termrole as a director as the other members of the Corporation’s Board of Directors and Equity Bank’s Board of Directors, as applicable, and shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Majority Holders Corporation’s Board of Directors and Equity Bank’s Board of Directors, or any committees thereof, to the same extent as the other members of the Corporation’s Board of Directors and Equity Bank’s Board of Directors. The Corporation shall, or where applicable shall cause Equity Bank to, notify the Board Representative of all regular and special meetings of the Corporation’s Board of Directors and Equity Bank’s Board of Directors (as such group is determined on applicable) and shall notify the date Board Representative of resignation all regular and special meetings of any committee of the New Independent Director) will have the right to recommend for appointment to Corporation’s Board of Directors or Equity Bank’s Board of Directors of which the Board one (1) nominee that meets the Independent Director Criteria as Representative is a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”)member. The appointment Corporation or Equity Bank, as applicable, shall provide the Board Representative with copies of a Replacement for a New Independent Director will be subject to such Replacement having executed all notices, minutes, consents and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding other materials provided to any other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Corporation’s Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation Directors or Equity Bank’s Board of Directors concurrently as such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement are provided to the Board if (and only if), taking into account the Replacement’s skillset and experience (only if such replacement is a Replacement for the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, as a member of those Board committees on which the New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein)directors.
(g) On each date that a New Independent Director or a Replacement is nominated pursuant to this Agreement, each member of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Notes (which Notes, for the avoidance of doubt, may have been acquired in the Exchange or thereafter by such Holder).
Appears in 1 contract
Board Representative. (a) At the 2019 Annual Meeting So long as Medtronic (together with its Affiliates) owns at least an aggregate of Shareholders *** of the Companyissued and outstanding shares of Vista Common Stock (assuming conversion of all Vista Preferred Stock) (appropriately adjusted in the event of stock splits, and at each subsequent Applicable Meeting during reverse stock splits, or dividends paid in the Term, until the amendment form of the Company’s Articles to implement the Charter Amendment (as defined hereinVista stock), the Company Vista shall (i) propose permit Medtronic to designate one representative reasonably acceptable to Vista as an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated for election observer to the Board at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominateDirectors or, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such that a vacancy is created on the Boardanytime after December 31, the Majority Holders may propose to the Board another nominee for election to the Board, pursuant to the procedures set forth 1997 if Medtronic so elects in Section 2(b), and the Company shall appoint such New Independent Director as a director to fill such vacancy.
(b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company.
(c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable.
(d) The election or appointment of a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(e) At all times while serving as a member of the Board (and as of Directors. If Medtronic's representative has a condition change in employment responsibilities or ceases to such service)be employed by Medtronic, the New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders Medtronic shall be responsible entitled to designate a replacement for any breach of this Section 2(e) by its representative. Medtronic's representative shall receive all notices, documents, and other information in the New Independent Director.
(f) Should the New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (same time and manner as such group information is determined on the date of resignation of the New Independent Director) will have the right supplied to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (of Directors. Vista shall make reasonable efforts to be conducted within ten (10) Business Days permit Medtronic's representative to participate in or observe Board of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement to the Board if (and only if), taking into account the Replacement’s skillset and experience (only Directors meetings by telephone if such replacement representative is a Replacement for unable to attend in person. Vista agrees to pay the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the reasonable expenses incurred by Medtronic's representative in connection with attending Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, Directors meetings as a member of those Board committees on which the New Independent Director being replaced served. In the event (but not as an observer to) the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, of Directors if and such nominees will be subject to the foregoing approval process. For the avoidance extent that Vista pays any expenses of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and any other member of the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein)Directors.
(gb) On each date So long as Medtronic has the right to have a representative to the Board of Directors pursuant to (a) above and does not elect to have such representative become a member of the Board of Directors, Medtronic shall receive from Vista notices of all meetings of the Board of Directors, including without limitation telephonic meetings, and Medtronic shall receive, with such limitations provided herein, any materials distributed for such meeting, and may send one representative to such meetings.
(c) Notwithstanding the foregoing subsection (a) and (b), Vista may require as a condition precedent that such Medtronic's representative proposing to attend any meeting of the Board of Directors shall agree to hold in confidence and trust, and to act in a New Independent Director fiduciary manner if such individual is a Board member with respect to all information so received during such meetings and may require that such representative sign a confidentiality agreement with Vista and; provided, further, that Vista reserves the right not to provide information and to exclude such representative from any meeting or portion thereof if attendance at such meeting by such representative or dissemination of * * * Confidential Treatment Requested any information at such meeting to such representative would, in the good faith judgment of the Board of Directors, would compromise or adversely affect the attorney-client privilege between Vista and its counsel, or would, in the good faith judgment of the Board of Directors, result in a Replacement is nominated conflict of interest situation. In no event shall any provision of this Section waive any obligation of confidentiality to Vista owed by any such representative or Medtronic.
(d) Unless Medtronic elects to have its designee to act as a non-voting observer to the Board of Directors, from and after December 31, 1997, the Board of Directors agrees to nominate Medtronic's designee for election to the Board of Directors and Vista agrees to use its best efforts to cause Medtronic's designee to be so elected.
(e) Medtronic's rights pursuant to this Agreement, each member Section 2.2 shall terminate upon the earlier of (i) the Holder Group shall deliver closing of a public offering of Vista securities registered on Form S-1 or SB-2 (or comparable forms) which results in net proceeds to the Board Vista of more than *** * * * or (ii) if Vista has complied with Medtronic's "First Offer Purchase Rights" pursuant to Section 2.1 with respect to a certificate certifying that Proposed Transaction and such Holder beneficially owns the applicable Requisite Amount Proposed Transaction has resulted in a Change of Notes (which Notes, for the avoidance Control of doubt, may have been acquired in the Exchange or thereafter by such Holder)Vista.
Appears in 1 contract
Samples: Supplemental Rights Agreement (Vista Medical Technologies Inc)
Board Representative. (a) At the 2019 Annual Meeting So long as Medtronic (together with its Affiliates) owns at least an aggregate of Shareholders 10% of the Companyissued and outstanding shares of Vista Common Stock (assuming conversion of all Vista Preferred Stock) (appropriately adjusted in the event of stock splits, and at each subsequent Applicable Meeting during reverse stock splits, or dividends paid in the Term, until the amendment form of the Company’s Articles to implement the Charter Amendment (as defined hereinVista stock), the Company Vista shall (i) propose permit Medtronic to designate one representative reasonably acceptable to Vista as an amendment (the “Charter Amendment”) to the Company’s Articles to increase the maximum number of directors of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated for election observer to the Board at such Applicable Meeting and shall recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominateDirectors or, recommend or otherwise endorse any competing nominee to fill the vacancy on the Board created by the Charter Amendment). If the Company’s Articles are amended to implement the Charter Amendment but a New Independent Director is not approved by the Shareholders such that a vacancy is created on the Boardanytime after December 31, the Majority Holders may propose to the Board another nominee for election to the Board, pursuant to the procedures set forth 1997 if Medtronic so elects in Section 2(b), and the Company shall appoint such New Independent Director as a director to fill such vacancy.
(b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company.
(c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable.
(d) The election or appointment of a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(e) At all times while serving as a member of the Board (and as of Directors. If Medtronic's representative has a condition change in employment responsibilities or ceases to such service)be employed by Medtronic, the New Independent Director shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (the “Director Policies”) and (ii) otherwise qualify as “independent” of the Company pursuant to the applicable securities laws and stock exchange requirements; provided that none of the Holders Medtronic shall be responsible entitled to designate a replacement for any breach of this Section 2(e) by its representative. Medtronic's representative shall receive all notices, documents, and other information in the New Independent Director.
(f) Should the New Independent Director resign from the Board or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (same time and manner as such group information is determined on the date of resignation of the New Independent Director) will have the right supplied to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (of Directors. Vista shall make reasonable efforts to be conducted within ten (10) Business Days permit Medtronic's representative to participate in or observe Board of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interview. The Company shall appoint a Replacement to the Board if (and only if), taking into account the Replacement’s skillset and experience (only Directors meetings by telephone if such replacement representative is a Replacement for unable to attend in person. Vista agrees to pay the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the reasonable expenses incurred by Medtronic's representative in connection with attending Board and all applicable committees of the Board shall take all necessary actions to cause the Replacement to be appointed as a director of the Company and, if the Replacement is qualified under applicable securities laws and stock exchange requirements, Directors meetings as a member of those Board committees on which the New Independent Director being replaced served. In the event (but not as an observer to) the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, of Directors if and such nominees will be subject to the foregoing approval process. For the avoidance extent that Vista pays any expenses of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, the Company and any other member of the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein)Directors.
(gb) On each date So long as Medtronic has the right to have a representative to the Board of Directors pursuant to (a) above and does not elect to have such representative become a member of the Board of Directors, Medtronic shall receive from Vista notices of all meetings of the Board of Directors, including without limitation telephonic meetings, and Medtronic shall receive, with such limitations provided herein, any materials distributed for such meeting, and may send one representative to such meetings.
(c) Notwithstanding the foregoing subsection (a) and (b), Vista may require as a condition precedent that such Medtronic's representative proposing to attend any meeting of the Board of Directors shall agree to hold in confidence and trust, and to act in a New Independent Director fiduciary manner if such individual is a Board member with respect to all information so received during such meetings and may require that such representative sign a confidentiality agreement with Vista and; provided, further, that Vista reserves the right not to provide information and to exclude such representative from any meeting or portion thereof if attendance at such meeting by such representative or dissemination of any information at such meeting to such representative would, in the good faith judgment of the Board of Directors, would compromise or adversely affect the attorney-client privilege between Vista and its counsel, or would, in the good faith judgment of the Board of Directors, result in a Replacement is nominated conflict of interest situation. In no event shall any provision of this Section waive any obligation of confidentiality to Vista owed by any such representative or Medtronic.
(d) Unless Medtronic elects to have its designee to act as a non-voting observer to the Board of Directors, from and after December 31, 1997, the Board of Directors agrees to nominate Medtronic's designee for election to the Board of Directors and Vista agrees to use its best efforts to cause Medtronic's designee to be so elected.
(e) Medtronic's rights pursuant to this Agreement, each member Section 2.2 shall terminate upon the earlier of (i) the Holder Group shall deliver closing of a public offering of Vista securities registered on Form S-1 or SB-2 (or comparable forms) which results in net proceeds to the Board Vista of more than $15 million or (ii) if Vista has complied with Medtronic's "First Offer Purchase Rights" pursuant to Section 2.1 with respect to a certificate certifying that Proposed Transaction and such Holder beneficially owns the applicable Requisite Amount Proposed Transaction has resulted in a Change of Notes (which Notes, for the avoidance Control of doubt, may have been acquired in the Exchange or thereafter by such Holder)Vista.
Appears in 1 contract
Samples: Supplemental Rights Agreement (Vista Medical Technologies Inc)
Board Representative. Promptly following the Closing, the Company will take all appropriate action to effect the appointment of one person designated by Investor (athe “Investor Designee”) At the 2019 Annual Meeting to its Board of Shareholders of the CompanyDirectors; provided, that, as a condition to such appointment, such designee must first be considered by, and at each subsequent Applicable Meeting during receive the Termaffirmative approval of, until the amendment of the Company’s Articles nominating and corporate governance committee. Xx. Xxxxxx Xxxxxx has already received such approval. So long as the Investor and its affiliates beneficially own (within the meaning of the Exchange Act) at least 5% of the Common Stock, the Company shall nominate for election at each meeting of its stockholders at which an election of directors shall be held one Investor Designee. In addition, during such time as the Investor and its Affiliates beneficially own (within the meaning of the Exchange Act) at least 20% of the Common Stock (without giving effect to implement any outstanding warrants (including the Charter Amendment (as defined hereinWarrants), options or similar rights held by any party), the Company shall, at the written request of the Investor and in addition to the Investor Designee, nominate for election at each meeting of its stockholders at which an election of directors shall be held an additional director designated by the Investor who shall be “independent” of the Company within the meaning of the rules of the New York Stock Exchange (ior any other exchange on which the Company’s Common Stock is listed or admitted for trading) propose an amendment (the “Charter AmendmentIndependent Designee”) ); provided, that, as a condition to such nomination, any such Independent Designee must first be considered by, and receive the affirmative approval of, the Company’s Articles to increase nominating and corporate governance committee. If either the maximum number Investor Designee or, if applicable, the Independent Designee does not receive the requisite vote of directors stockholders of the Company by one (1) director from seven (7) directors to eight (8) directors and (ii) subject to the approval of the Shareholders by special resolution of the Charter Amendment, nominate one (1) director to serve as the New Independent Director, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date and (C) have been approved by the Board, such approval not to be unreasonably withheld. Upon approval of the Charter Amendment, the Company shall cause such New Independent Director to be nominated for election to its Board of Directors, the Board Company, at such Applicable Meeting and the written request of the Investor, shall recommend to holders of Voting Securities that such New appoint a different Investor Designee or, if applicable, Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee Designee to fill the vacancy on the Board created of Directors caused by the Charter Amendment). If failure to elect the Company’s Articles are amended to implement the Charter Amendment but a New original Investor Designee or Independent Director is not approved by the Shareholders such that a vacancy is created on the BoardDesignee, the Majority Holders may propose to the Board another nominee for election to the Boardas applicable; provided, pursuant to the procedures set forth in Section 2(b), and the Company shall appoint such New Independent Director as a director to fill such vacancy.
(b) For each Applicable Meeting during the Term at which the term of any New Independent Director then on the Board will expire or at which no New Independent Director is then on the Board (other than by reason of the failure of the Company to amend its Articles to implement the Charter Amendment in accordance with Section 2(a)): (i) the Majority Holders may propose to the Board one (1) nominee for election or appointment to the Board, which nominee shall (A) meet the Independent Director Criteria, (B) have been designated by the Majority Holders (as such group is determined ten (10) days prior to the Notification Date) and notified to the Company prior to the Notification Date, and (C) have been approved by the Board, such approval not to be unreasonably withheld. The Company shall cause such nominee (the “New Independent Director”) to be nominated for election to the Board at such Applicable Meeting, and shall cause the Board to recommend to holders of Voting Securities that such New Independent Director be elected to the Board at such Applicable Meeting (and shall not nominate, recommend or otherwise endorse any competing nominee to fill the applicable seat on the Board). Notwithstanding anything to the contrary in this Agreement, no director or officer of the Company shall, and the Company shall not be required to compel any director or officer to, take any action that such director or officer of the Company determines, in his or her sole discretion, may violation such officer or director’s fiduciary duties to the Company.
(c) If the Charter Amendment is approved and becomes effective, any nominee nominated by the Company in accordance with Section 2(a) or Section 2(b) hereof that has been approved by the Shareholders of the Company at any Applicable Meeting to be the New Independent Director shall be elected or appointed to the Board as soon as practicable.
(d) The election or appointment of a New Independent Director pursuant to Section 2(a) or Section 2(b) will be subject to such New Independent Director having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such New Independent Director prior to such Applicable Meeting. Should the Board and the Majority Holders be unable to mutually agree upon a New Independent Director pursuant to Section 2(a) or Section 2(b), the Majority Holders will be entitled to continue to recommend different nominees that meet the Independent Director Criteria, until a New Independent Director is so mutually agreed upon and nominated for election to the Board, provided that, for the avoidance of doubt, there shall be no requirement to notify the Company of such additional proposals prior to the Notification Date.
(e) At all times while serving as a member of the Board (and as a condition to such service)appointment, any such different Investor Designee or, if applicable, Independent Designee must first be considered by, and receive the affirmative approval of, the New Independent Director Company’s nominating and corporate governance committee; provided, however, that this sentence shall (i) comply with all policies, codes and guidelines applicable to Board members (subject to Section 4(b)) (not apply in the “Director Policies”) and (ii) otherwise qualify as “independent” circumstance where in lieu of the Company pursuant to Investor Designee or the applicable securities laws and stock exchange requirements; provided that none of the Holders shall be responsible for any breach of this Section 2(e) Independent Designee there was elected a candidate who was neither nominated, endorsed nor supported by the New Independent Director.
(f) Should the New Independent Director resign from the Company’s Board of Directors or become unable to serve as a director of the Company due to death, disability or other reasons prior to the expiration of his or her term, the Majority Holders (as such group is determined on the date of resignation of the New Independent Director) will have the right to recommend for appointment to the Board one (1) nominee that meets the Independent Director Criteria as a replacement director, subject to the approval by the Board, such approval not to be unreasonably withheld (each, a “Replacement”). The appointment of a Replacement for a New Independent Director will be subject to such Replacement having executed and agreed to comply with all director onboarding materials (which onboarding materials will be no more onerous than and in substantially the same form as the onboarding materials provided to other non-executive directors of the Board and which shall include a Confidentiality Agreement) provided to such Replacement, interviews with members of the Board (to be conducted within ten (10) Business Days of the Majority Holders’ recommendation of such Replacement), and a customary background check. The Company will complete its approval process within ten (10) Business Days of the later of its receipt of the Replacement’s executed director onboarding materials and the date of such interviewmanagement. The Company shall appoint a Replacement to not form any executive or similar committee of its Board of Directors which has the Board if (and only if), taking into account effect of excluding the Replacement’s skillset and experience (only if such replacement is a Replacement for the New Independent Director), it finds a Replacement to be reasonably acceptable. Promptly after a determination that a Replacement is reasonably acceptable, the Board and all applicable committees Investor Designee from active participation on matters requiring approval of the Board shall take all necessary actions to cause of Directors. During such time as an Investor Designee serves on the Replacement to be appointed as a director Board of Directors, except with the consent of the Company and, if the Replacement is qualified under applicable securities laws Investor (which may be withheld in its sole and stock exchange requirements, as a member of those Board committees on which the New Independent Director being replaced served. In the event the Board reasonably finds that a Replacement is not acceptable, such Majority Holders will be entitled to recommend different nominees which meet the Independent Director Criteria, and such nominees will be subject to the foregoing approval process. For the avoidance of doubt, such Majority Holders will be entitled to continue to recommend different nominees which meet the foregoing criteria until a Replacement is appointed. Except as otherwise specified in this Agreement, if a Replacement is appointed, all references in this Agreement to the term “New Independent Director” will include such Replacement, as applicable. Except as otherwise expressly permitted herein, absolute discretion) the Company shall maintain commercially reasonable Directors and Officers Insurance. The Investor Designee shall be express third party beneficiaries of this sentence and the Board shall not take any action to remove or seek the removal of any of the New Independent Director during the Term other than for Cause (as defined herein)preceding sentence.
(g) On each date that a New Independent Director or a Replacement is nominated pursuant to this Agreement, each member of the Holder Group shall deliver to the Board a certificate certifying that such Holder beneficially owns the applicable Requisite Amount of Notes (which Notes, for the avoidance of doubt, may have been acquired in the Exchange or thereafter by such Holder).
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