Common use of Board Seat Clause in Contracts

Board Seat. Holdings hereby agrees that ESI, or its designee, shall ---------- be entitled, from and after the Closing, to designate one member of the Board of Directors of Holdings, such member to be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI shall be deemed acceptable to Holdings (such director being referred to herein as the "Stockholder Director"). Notwithstanding the foregoing, if at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than five percent (5%), ESI thereafter shall not be entitled to designate a director. The Stockholder Director shall be entitled to the same indemnification, compensation and other benefits provided to all other non- employee members of Holdings' Board of Directors. In accordance with the foregoing, Holdings hereby agrees that its Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessary, and the person designated by ESI shall be elected as a director effective upon such date. Following the Closing, Holdings shall cause (i) the person designated by ESI as a director to be included (consistent with applicable law and Holdings' Certificate of Incorporation) in the group of nominees who are recommended for election to the Board of Directors by the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when directors are to be elected, and (ii) at any special meeting of the Board of Directors held as soon as practicable after the creation of any vacancy as a result of the death, resignation or removal of the Stockholder Director, the appointment of such person or persons as are designated by ESI to fill any such vacancy. Unless written notice, signed by the President of ESI, designating another individual shall be received by Holdings, the Stockholder Director shall be Xxxxxxx X. Xxxx.

Board Seat. Holdings hereby agrees that ESIFor as long as D. E. Shaw Laminar Lending 2, or Inc., a Delaware corporation (“Laminar”), together with any Affiliates thereof, beneficially owns (within the meaning of Rule 13d-3 under the Exchange Act) at least forty percent (40%) of the outstanding aggregate principal amount of the Notes, the Company will nominate and use its designee, best efforts to have elected to the Board one individual designated by Laminar (the “Laminar Board Member”). The Company’s proxy statement for the election of directors shall ---------- be entitled, from include the Laminar Board Member and after the Closing, to designate one member recommendation of the Board in favor of Directors election of Holdingsthe Laminar Board Member. For so long as Laminar is otherwise entitled under the provisions of this Agreement to nominate a Laminar Board Member, such member any vacancy created by the death, disability, retirement or removal (with or without cause) of the Laminar Board Member may be filled by Xxxxxxx. Subject to be reasonably acceptable to Holdingsapplicable law and any rules or regulations of any stock exchange on which the Common Stock is listed, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI in the event the Board shall be deemed acceptable to Holdings (such director being referred to herein as the "Stockholder Director"). Notwithstanding the foregoing, if at any time ESI's percentage beneficial ownership create a committee of Holdings' outstanding common stock is less than five percent (5%)the Board, ESI thereafter the Company shall use its best efforts to cause the Laminar Board Member to be a member of any such committee so created; provided, however, the foregoing shall not be entitled apply to designate any committee formed for the purpose of considering a directortransaction between the Company and Laminar. The Stockholder Director Laminar Board Member shall be entitled to given notice of (in the same indemnificationmanner that notice is given to other members of the Board) all meetings (whether in person, compensation telephonic or otherwise) of the Board, including all committee meetings with respect to committees on which the Laminar Board Member serves. The Laminar Board Member shall be provided with the same information, and other benefits access thereto, provided to all other non- employee members of Holdings' Board of DirectorsBoard. In accordance with addition to any other indemnification rights the foregoingLaminar Board Member has pursuant to this Agreement, Holdings hereby agrees the Transaction Documents, the Certificate of Incorporation of the Company and the Bylaws of the Company, each Laminar Board Member that its serves on the Board of Directors will take all action necessary such that upon shall have the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessaryright to enter into, and the person designated by ESI shall be elected as a director effective upon such date. Following Company agrees to enter into, the Closing, Holdings shall cause (i) the person designated by ESI as a director to be included (consistent with applicable law Director and Holdings' Certificate of Incorporation) Officer Indemnification Agreement in the group form attached hereto as Exhibit C (the “Indemnification Agreement”), with such changes as the Laminar Board Member and the Company may agree to at the time of nominees who are recommended for election to the Board of Directors by the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when directors are to be elected, and (ii) at any special meeting of the Board of Directors held as soon as practicable after the creation of any vacancy as a result of the death, resignation or removal of the Stockholder Director, the appointment execution of such person or persons as are designated by ESI to fill any such vacancyAgreement. Unless written notice, signed by the President of ESI, designating another individual shall be received by Holdings, the Stockholder Director shall be Xxxxxxx X. Xxxx[THE COMPANY TO PROVIDE DRAFT OF INDEMNIFICATION AGREEMENT.]

Board Seat. Holdings hereby agrees that ESIUpon the Effective Date, or its designee, shall ---------- be entitled, from and after the Closing, to designate one member of the Board of Directors of Holdings, such member to be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI shall be deemed acceptable to Holdings CYKN will appoint one (such director being referred to herein as 1) representative designated by NURO (the "Stockholder NURO Director"), who shall initially be Xxxx X. Xxxxxx, M.D., Ph.D., to serve on the Board of Directors of CYKN (the "Board") until the later of the next annual meeting of stockholders of CYKN or the date on which his successor is duly elected and qualified, or his earlier resignation. Notwithstanding Commencing on the foregoing, if Effective Date and until the date on which NURO ceases to own at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than least five percent (5%)) of the then issued and outstanding shares of Common Stock, ESI thereafter CYKN shall not be entitled to designate a director. The Stockholder Director shall be entitled to the same indemnification, compensation nominate and other benefits provided to all other non- employee members of Holdings' Board of Directors. In accordance with the foregoing, Holdings hereby agrees recommend that its Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessarystockholders elect, and otherwise use reasonable efforts to insure the person designated by ESI shall be elected as a director effective upon such date. Following election of, the Closing, Holdings shall cause (i) the person designated by ESI as a director to be included (consistent with applicable law and Holdings' Certificate of Incorporation) in the group of nominees who are recommended for election NURO Director to the Board of Directors by the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when CYKN at which directors are to be elected, and (ii) unless such NURO Director's term does not expire at any special meeting of such meeting. In the Board of Directors held as soon as practicable after the creation of any vacancy as a result event of the death, resignation or removal of the Stockholder NURO Director, NURO shall be entitled to designate a successor who will be appointed to the appointment Board upon the later of the date of such person death, resignation or persons removal or two (2) business days following NURO's designation of such successor. CYKN shall indemnify the NURO Director to the fullest extent permitted by applicable law. CYKN will indemnify and advance expenses to, and enter into agreements regarding the same with, each NURO Director in such manner as to provide such NURO Directors the same rights and benefits as are designated by ESI accorded to fill the most favorably covered of CYKN's officers and directors during the same period of service. For so long as a NURO Director shall remain a director of CYKN and with respect to any such vacancy. Unless written noticeprior service by any NURO Director, signed by the President in all policies of ESIdirector and officer liability insurance, designating another individual all such NURO Directors shall be received by Holdings, named as an insured in such a manner as to provide such NURO Directors the Stockholder Director shall be Xxxxxxx X. Xxxxsame rights and benefits as are accorded to the most favorably insured of CYKN's officers and directors during the same period of service.

Board Seat. Holdings hereby agrees that ESI(a) Upon the earlier to occur of (x) Holdings’ proxy statement (for the election of directions) for the annual meeting of stockholders to be held in calendar year 2010 or (y) June 30, or its designee2010 (the “Designee Date”), and for as long as the Notes are outstanding, MRC shall ---------- be entitled, from and after have the Closing, right to designate nominate one individual to serve as a member of the Holdings’ Board of Directors (“MRC’s Designee”), and Holdings agrees (i) to increase the size of Holdings, such member to be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI shall be deemed acceptable to Holdings (such director being referred to herein as the "Stockholder Director"). Notwithstanding the foregoing, if at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than five percent (5%), ESI thereafter shall not be entitled to designate a director. The Stockholder Director shall be entitled to the same indemnification, compensation and other benefits provided to all other non- employee members of Holdings' Board of Directors. In accordance with the foregoing, Holdings hereby agrees that its ’ Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, and appoint MRC’s Designee to Holdings' ’ Board of Directors shall be increased in sizeas promptly as practicable after the Designee Date, if necessaryor, at Holdings’ option, to nominate MRC’s Designee and the person designated by ESI shall recommend to Holdings’ stockholders that MRC’s Designee be elected as a director effective upon such date. Following the Closing, Holdings shall cause (i) the person designated by ESI as a director to be included (consistent with applicable law and Holdings' Certificate of Incorporation) in the group of nominees who are recommended for election to the ’ Board of Directors by at the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each annual meeting of stockholders of Holdings when directors are to be electedin 2010, and (ii) at any special meeting of the to recommend to Holdings’ stockholders that MRC’s Designee be elected to Holdings’ Board of Directors held as soon as practicable at annual meetings of stockholders occurring after the creation Designee Date and thereafter for as long as the Notes are outstanding. (b) In connection with any election of directors at an annual meeting of stockholders to which this Section 7.33 applies, MRC agrees to provide advance notice of MRC’s Designee to Holdings within the time periods set forth in Holdings’ Amended and Restated Bylaws. MRC agrees to provide notice of the initial MRC Designee to Holdings no later than April 30, 2010. In connection with MRC’s nomination of any vacancy as a result of the death, resignation or removal of the Stockholder DirectorMRC Designee, the appointment MRC Designee shall deliver a completed and signed questionnaire regarding the background and qualifications of such person to serve as a director, a copy of which may be obtained upon request to the secretary of Holdings, a signed consent to be named in Holdings’ proxy statement as a nominee for election as a director, such additional information that Holdings may reasonably request to determine the eligibility or persons qualifications of such person to serve as are designated by ESI a director of Holdings, or that could be material to fill any a reasonable stockholder’s understanding of the qualifications and/or independence, or lack thereof, of such vacancy. Unless written notice, signed by the President of ESI, designating another individual shall be received nominee as a director and all other documents reasonably requested by Holdings, the Stockholder Director shall be Xxxxxxx X. Xxxxincluding certifications as to compliance with Holdings’ xxxxxxx xxxxxxx policy and code of conduct.

Board Seat. Holdings hereby agrees that ESISubject to the terms and conditions of this Agreement, or its designeefollowing the date hereof, the Nominating Person(s) shall ---------- be entitledentitled to designate, from in each case in accordance with WBA’s Organizational Documents and after applicable law and stock exchange rules and subject to the Closing, to designate one member approval of the Nominating and Governance Committee of the Board after exercising its good faith customary due diligence review and fiduciary duties, the successor of Directors Xx. Xxxxxxx as a director of HoldingsWBA (the “VMD Director”) in writing. The Board shall cause the appointment of such VMD Director as a director of WBA within a reasonable time after such designation as allows WBA, the Board and the Nominating and Governance Committee of the Board to comply with their fiduciary duties and good faith customary due diligence review and director appointment process (but no earlier than the completion of the 2023 annual meeting of stockholders of WBA), in all cases in accordance with the terms of this Agreement (including, without limitation, in accordance with Section 4 hereof) and to the extent such member actions are not prohibited by applicable law or stock exchange rules. Prior to any designation of a VMD Director by the Nominating Person(s) pursuant to this Section 2, VMD and the Nominating Person(s) shall consult with and consider the opinions of WBA with respect thereto in good faith. Notwithstanding anything to the contrary set forth herein, the VMD Director must be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI shall be deemed acceptable to Holdings WBA (such acceptance not to be unreasonably withheld, conditioned or delayed) and qualify as independent for purposes of service as a director being referred on the Board, including under the applicable rules and standards set forth in the Corporate Governance Guidelines of WBA and of the Securities Exchange Commission and the Nasdaq Stock Market, as determined in good faith by the Board and its Nominating and Governance Committee at all times when proposed to herein serve and when serving as a director on the Board. Prior to the appointment of a VMD Director as a director of WBA, the Board shall take such actions as are necessary such that the Board is of a size that permits the appointment of such VMD Director as a director of WBA. In the event that the Nominating and Governance Committee of the Board or WBA do not approve the Person designated by the Nominating Person(s) to serve as the "Stockholder Director"). Notwithstanding VMD Director under this Section 2, (i) the foregoing, if at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than five percent (5%), ESI thereafter Nominating Person(s) shall not be entitled to designate a director. The Stockholder Director shall be entitled another designee in accordance with and subject to the same indemnificationterms and conditions of this Section 2, compensation and other benefits provided to all other non- employee members of Holdings' Board of Directors. In accordance with the foregoing, Holdings hereby agrees that its Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessary, and the person designated by ESI shall be elected as a director effective upon such date. Following the Closing, Holdings shall cause (i) the person designated by ESI as a director to be included (consistent with applicable law and Holdings' Certificate of Incorporation) in the group of nominees who are recommended for election to the Board of Directors by the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when directors are to be elected, and (ii) at any special meeting of the director position for which such Person was designated shall not be filled pending such subsequent designation by the Nominating Person(s) and (iii) upon such designation by the Nominating Person(s), the Board shall fill the vacancy with such successor designee in accordance with and subject to the terms and conditions of Directors held as soon as practicable after this Agreement (including the creation of any vacancy as requirements with respect to a result of the death, resignation or removal of the Stockholder Director, the appointment of such person or persons as are designated by ESI to fill any such vacancy. Unless written notice, signed by the President of ESI, designating another individual shall be received by Holdings, the Stockholder VMD Director shall be Xxxxxxx X. Xxxxset forth in this Section 2 and otherwise).

Board Seat. Holdings hereby agrees that ESI(a) Prior to the Closing Date, upon satisfactory completion of a Directors & Officers questionnaire and provision of other background information as may be reasonably requested by the Company, the Company shall cause Mr. Xxxx Xxxx or its designeeMr. Xxxxxx Xxxxxxxxx, shall ---------- be entitledat Purchaser’s option, from and after as a representative of Purchaser (the Closing“Board Representative”), to designate one member be appointed to the Company Board and commence serving on the Company Board immediately following the Closing Date. Prior to the Closing Date, the Company shall also cause the Board Representative to be appointed to the Executive Committee of the Company Board (or any successor committee thereto). (b) The Company shall include the Board Representative in the Company’s slate of Directors of Holdings, such member director nominees recommended by the Company Board to be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president voted on by stockholders of ESI shall be deemed acceptable to Holdings the Company at the 2009 Annual Meeting of Stockholders (such director being referred to herein as the "Stockholder Director"). Notwithstanding the foregoing, if at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than five percent (5%“2009 Meeting”), ESI thereafter shall not be entitled subject to designate a director. The Stockholder Director shall be entitled to the same indemnification, compensation satisfaction of all legal and other benefits provided governance requirements applicable to all other non- employee board members of Holdings' Board of Directors. In accordance with the foregoing, Holdings hereby agrees that its Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessary, and the person designated by ESI shall be elected regarding service as a director effective upon such date. Following of the ClosingCompany (including the approval of the Compensation, Holdings Nominating and Governance Committee of the Company Board) and the Company shall also cause the Board Representative to be re-appointed to the Executive Committee of the Company Board (or any successor committee thereto), provided that (i) through the person designated by ESI as a director to be included date of the 2009 Meeting, Purchaser shall hold shares of Company Common Stock representing at least ten percent (consistent with applicable law and Holdings' Certificate 10%) of Incorporation) in the group outstanding shares of nominees who are recommended for election to the Board of Directors by the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when directors are to be elected, Company Common Stock; and (ii) at any special meeting the Board Representative shall remain “independent” (as such term is defined in the listing standards of the Nasdaq Stock Market). (c) Through the 2009 Meeting and, assuming the conditions in the proviso in Section 5.4(b) are satisfied and the Board Representative is re-elected at the 2009 Meeting by the stockholders of Directors held as soon as practicable after the creation Company, through the 2010 Annual Meeting of any vacancy as a result of Stockholders, Purchaser shall have the power to designate the Board Representative’s replacement upon the death, resignation resignation, retirement, disqualification or removal from office of such director, subject to satisfaction of all legal and governance requirements applicable to all board members regarding service as a director of the Stockholder DirectorCompany (including the approval of the Compensation, Nominating and Governance Committee of the appointment of such person or persons as are designated by ESI to fill Company Board) and provided that any such vacancy. Unless written notice, signed by the President of ESI, designating another individual replacement shall be received by Holdings, “independent” (as such term is defined in the Stockholder Director shall be Xxxxxxx X. Xxxxlisting standards of the Nasdaq Stock Market).

Board Seat. Holdings hereby (a) During the term of this Agreement, the Company agrees that ESI, or its designee, shall ---------- be entitled, from and to: (i) appoint Xxxxxx Xxxxx (“Investor Director”) to serve as a director on the Board promptly after the Closingdate hereof. (ii) at each meeting of stockholders for election of directors at which the position to be occupied under this Agreement by the Investor Director on the Board is to be determined by stockholder election, (A) cause the Investor Director to designate one be recommended by the Nominating Committee for consideration by the Board and to be nominated by the Board for election as a director; (B) recommend to its stockholders the election of the Investor Director, and use its reasonable best efforts to cause the election of the Investor Director to the Board, including soliciting proxies for the election of the Investor Director to the same extent as it does, consistent with past practice, for any other Board nominee for election as a director; and (C) request each then-current member of such Board to vote as a stockholder for approval of the Board of Directors of HoldingsInvestor Director. (b) Following his appointment to the Board, such member to be reasonably acceptable to Holdings, it being understood that Xxxxxxx X. Xxxx or any senior or executive vice president of ESI shall be deemed acceptable to Holdings (such director being referred to herein as the "Stockholder Director"). Notwithstanding the foregoing, if at any time ESI's percentage beneficial ownership of Holdings' outstanding common stock is less than five percent (5%), ESI thereafter shall not be entitled to designate a director. The Stockholder Investor Director shall be entitled to the same indemnificationcompensation received by other Board members in consideration of his service as a director, compensation and reimbursement of out-of-pocket expenses incurred in attending Board meetings (collectively, “Board Compensation”). Board Compensation shall be paid by the Company to the Investor. The Investor Director shall be entitled to the same indemnification as provided to other members of the Board in connection with his role as a director, including the execution by the Company and the Investor Director of the Company’s standard form indemnification agreement in the form filed as an exhibit to the Company’s annual report on Form 10-K. (c) Following his appointment to the Board, the Company shall provide each Investor Director with copies of all notices, minutes, consents and other benefits materials provided to all the other non- employee members of Holdings' the Board of Directors. In accordance or any committee thereof concurrently with the foregoing, Holdings hereby agrees distribution of such materials to the other members. (d) From the date that its Board of Directors will take all action necessary such that upon the fifth (5th) business day following the Closing, Holdings' Board of Directors shall be increased in size, if necessary, and the person designated by ESI shall be elected Investor Director is appointed as a director effective of the Board until the time the Investor Director no longer serves as a director on the Board (the “Director Period”), neither Investor (nor any of its Affiliates) nor the Investor Director will propose a director or slate of directors in opposition to a nominee or slate of nominees proposed by the management or board of directors of the Company or any of its subsidiaries. (e) So long as Investor Director serves as a director of the Board, Investor and its controlled Affiliates shall vote in favor of the slate of nominees proposed by the management or the Board of the Company or any of its subsidiaries. (f) Investor’s rights under this Agreement shall terminate and be of no further force or effect upon such date. Following the Closing, Holdings shall cause earliest to occur of the first date upon which (i) the person designated by ESI as a director Investor and its Affiliates fail to Beneficially own, collectively, at least 2,506,987 shares of common stock (to be included adjusted for any forward or reverse stock splits), (consistent with applicable law and Holdings' Certificate ii) the Investor Director is not elected at any meeting of Incorporation) in the group of nominees who are recommended Company’s stockholders after having been nominated by the Board for election or re-election to the Board of Directors by at such meeting or any adjournment thereof, or (iii) the management of Holdings and included in Holdings' proxy statement pursuant to the Securities Exchange Act of 1934, as amended, at each meeting of stockholders of Holdings when directors are to be elected, and (ii) at any special meeting of the Board of Directors held as soon as practicable after the creation of any vacancy as a result of the Investor Director’s death, resignation or removal from the Board for cause (the “Termination Event”). Upon the occurrence of the Stockholder Directora Termination Event, the appointment of such person or persons as are designated by ESI to fill any such vacancy. Unless written notice, signed by the President of ESI, designating another individual shall be received by Holdings, the Stockholder Investor Director shall be Xxxxxxx X. Xxxxdeemed to have resigned from the Board (unless he is removed for cause or not elected or re-elected). Investor shall immediately inform the Company in writing when a Termination Event occurs as a result of (f)(i) above, and upon any Termination Event shall thereafter cooperate fully with the Company and the Board in transitioning his position to a new Board member, as requested by the Company. Notwithstanding the foregoing, the Investor Director serving as a director shall continue to be entitled to the indemnification and expense reimbursement, if any, in connection with his service as a director described in Section 1(b).