Boards of Directors; Voting Agreements. (a) From and after the date hereof to, but not including, December 10, 2009, and subject to paragraphs (b),(c) and (d) below, in any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder shall vote, or cause to be voted, or cause such Shareholder's designees as directors to vote, all Securities owned by such Shareholder or over which such Shareholder has voting control so as to nominate and elect such directors of the Company as follows: (i) The Chief Executive Officer of the Company; (ii) Two directors designated by Pequot Private Equity Fund III, L.P. (the "Pequot Designees"), for so long as the Pequot Shareholders own at least 25% of the Pequot Shares, who shall initially be Gerald A. Poch and Richaxx Xxxxxxxxx; provided, xxxxxxx, xxxx xx the Pequot Shareholders own less than 25% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's elected term; (iii) One director designated by the Constellation Shareholders (the "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman; (xx) Xxxxx "xxxxxendent directors" (as such term is used in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's Common Stock is listed on the date hereof) who shall be selected by the Company's nominating and corporate governance committee; (v) Two "independent directors" (as such term is used in clause (iv) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Company's nominating and corporate governance committee; (vi) Subject to Section 3.1(b), Steven Rothman. (b) Notxxxxxxxxxxxx xnything contained in Section 3.1(a) to the contrary, the Investor Shareholders shall only be obligated under Section 3.1(a)(vi) with respect to Mr. Rothman (i) for so long ax xx (x) xxs not been terminated by the Company pursuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his Employment Agreement and (ii) from and after the date hereof to, but not including, May 21, 2007. (c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereof. (d) If any vacancy shall occur in the Board of Directors as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), originally designated such vacating director; provided, however, that the foregoing shall not apply with respect to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate a director or a replacement for a director pursuant to Section 3.1(a) shall also be entitled to designate the removal of such director with or without cause. (e) The Investor Shareholders hereby agree that (i) one of the five directors designated pursuant to Sections 3.1(a)(iv) and (v) above shall be the "financial expert" required on the audit committee of the Company by the Sarbanes-Oxley Act of 2002, ax xxxxxxx xxx (ii) the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Shareholders pursuant to Section 3.1(a)(ii) shall qualify as "independent directors" (as such term is used in Section 3.1(a)(iv). (f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee. (g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting. (h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument. (i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
Appears in 1 contract
Boards of Directors; Voting Agreements. (a) From and after the date hereof to, but not including, December 10, 2009the fifth anniversary of the date hereof, and subject to paragraphs (b),(c) and (d) below, in any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder shall vote, or cause to be voted, or cause such Shareholder's ’s designees as directors to vote, all Securities owned by such Shareholder or over which such Shareholder has voting control so as to nominate and elect such directors of the Company as follows:
(i) The Chief Executive Officer of the Company;
(ii) Two Three directors designated by Pequot Private Equity Fund III, L.P. (the "“Pequot Designees"”), for so long as the Pequot Shareholders own at least 2575% of the Pequot Shares, who shall initially be Gerald A. Poch Xxxxxx X. Xxxx, Xxxxx Xxxx and Richaxx Xxxxxxx Xxxxxxxxx; provided, xxxxxxxhowever, xxxx xx that if the Pequot Shareholders own less than 2575% of the Pequot Shares but at least 331/3% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate two directors; and provided, further, however, that if the Pequot Shareholders own less than 331/3% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and and, in each case, each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's ’s elected term;
(iii) One director designated by the Constellation Shareholders (the "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman;
(xx) Xxxxx "xxxxxendent Three “independent directors" ” (as such term is used in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's ’s Common Stock is listed on the date hereofof the Series A-1 Closing) who shall be selected initially by the Board of Directors immediately prior to the Series A-1 Closing, and, thereafter by the Company's ’s nominating and corporate governance committee, as established pursuant to Section 3.2; provided, that, in any event, such independent directors shall not be selected by the Pequot Shareholders, their Affiliates or any other holder of the Pequot Shares;
(viv) Two "“independent directors" ” (as such term is used in clause (iviii) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Pequot Shareholders and initially, reasonably acceptable to the members of the Board of Directors who were such directors immediately prior to the Series A-1 Closing and, thereafter, to the Company's ’s nominating and corporate governance committee;
(viv) Subject to Section 3.1(b), Steven RothmanXxxxxx Xxxxxxx and Xxxxxx Xxxxxx.
(b) Notxxxxxxxxxxxx xnything Notwithstanding anything contained in Section 3.1(a) to the contrary, the Investor Pequot Shareholders shall only be obligated under Section 3.1(a)(vi3.1(a)(v) with respect to Mr. Rothman (i) Xx. Xxxxxxx and Xx. Xxxxxx for so long ax xx as such individual (x) xxs has not been terminated by the Company pursuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his the Employment Agreement Agreements and as follows:
(iii) from From and after the date hereof to, but not including, May 21the second anniversary of the Series A-1 Closing; and
(ii) From and after the second anniversary of the Series A-1 Closing to, 2007but not including, the third anniversary of the Series A-1 Closing, to vote their Securities to elect to the Board of Directors either Xx. Xxxxxx or Xx. Xxxxxxx as shall be determined by a majority vote of the Board of Directors (with Xx. Xxxxxx and Xx. Xxxxxxx not being entitled to such vote), and the other shall be entitled to attend each meeting of the Board of Directors as a non-voting observer, whether such meeting is conducted in person or by teleconference and shall receive all communications provided to the Board of Directors, at the same time and in the same manner that such communications are provided to such members of the Board of Directors.
(c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (ix)(i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock Pequot Shares and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereof.
(d) If any vacancy shall occur in the Board of Directors as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), originally designated such vacating director; provided, however, that the foregoing shall not apply with respect to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate entitled to designate a director or a replacement for a director pursuant to Section 3.1(a) shall also be entitled to designate the removal of such director with or without cause.
(e) The Investor Pequot Shareholders hereby agree that (i) one of the five directors designated pursuant to Sections 3.1(a)(iv3.1(a)(iii) and (viv) above shall be the "“financial expert" ” required on the audit committee of the Company by the SarbanesXxxxxxxx-Oxley Xxxxx Act of 2002, ax xxxxxxx xxx as amended and (ii) the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Pequot Shareholders pursuant to Section 3.1(a)(ii) shall qualify as "“independent directors" ” (as such term is used in Section 3.1(a)(iv3.1(a)(iii).
(f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee.
(g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting.
(h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument.
(i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
Appears in 1 contract
Boards of Directors; Voting Agreements. (a) From and after the date hereof December 21, 2004 to, but not including, December 10, 2009, and subject to paragraphs (b),(c) and (d) below, in any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder shall vote, or cause to be voted, or cause such Shareholder's designees as directors to vote, all Securities owned by such Shareholder or over which such Shareholder has voting control so as to nominate and elect such directors of the Company as follows:
(i) The Chief Executive Officer of the Company;
(ii) Two directors designated by Pequot Private Equity Fund III, L.P. (the "Pequot Designees"), for so long as the Pequot Shareholders own at least 25% of the Pequot Shares, who shall initially be Gerald A. Poch and Richaxx XxxxxxxxxRichard Heitzmann; provided, xxxxxxxhowever, that ix xxx Xxxxxx Xhareholderx xxx xxxx xx the Pequot Shareholders own less than xhan 25% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's elected term;
(iii) One director designated by the Constellation Shareholders (the "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman;
(xxiv) Xxxxx Three "xxxxxendent independent directors" (as such term is used xxxx xxxx xx xxxd in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's Common Stock is listed on the date hereof) who shall be selected by the Company's nominating and corporate governance committee;
(v) Two "independent directors" (as such term is used in clause (iv) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Company's nominating and corporate governance committee;
(vi) Subject to Section 3.1(b), Steven Rothman.
(b) Notxxxxxxxxxxxx xnything Notwithstanding anything contained in Section 3.1(aSectxxx 0.0(x) to xx the contrary, the Investor Shareholders shall only be obligated under Section 3.1(a)(vi) with respect to Mr. Rothman (i) for so long ax xx as he (x) xxs has not been terminated by the Company pursuant Xxxxxxx xxrsuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his Employment Agreement and (ii) from and after the date hereof December 21, 2004 to, but not including, May 21, 2007.
(c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereofDecember 21, 2004.
(d) If any vacancy shall occur in the Board of Directors as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), originally designated such vacating director; provided, however, that the foregoing shall not apply with respect to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate entitled to designate a director or a replacement for repxxxxxxxx xxx a director pursuant to Section 3.1(a) shall also be entitled to designate the removal of such director with or without cause.
(e) The Investor Shareholders hereby agree that (i) one of the five directors designated pursuant to Sections 3.1(a)(iv) and (v) above shall be the "financial expert" required on the audit committee of the Company by the Sarbanes-Oxley Act of 2002, ax xxxxxxx xxx as amended and (ii) the greatest extent permitted by applicable xxxxxxxxx xx xpplicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Shareholders pursuant to Section 3.1(a)(ii) shall qualify as "independent directors" (as such term is used in Section 3.1(a)(iv).
(f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee.
(g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting.
(h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument.
(i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
Appears in 1 contract
Boards of Directors; Voting Agreements. (a) From and after the date hereof to, but not including, December 10, 2009, and subject to paragraphs (b),(c) and (d) below, in any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder shall vote, or cause to be voted, or cause such Shareholder's designees as directors to vote, all Securities owned by such Shareholder or over which such Shareholder has voting control so as to nominate and elect such directors of the Company as follows:
(i) The Chief Executive Officer of the Company;
(ii) Two directors designated by Pequot Private Equity Fund III, L.P. (the "Pequot Designees"), for so long as the Pequot Shareholders own at least 25% of the Pequot Shares, who shall initially be Gerald A. Poch and Richaxx XxxxxxxxxRichard Heitzmann; provided, xxxxxxxhowever, xxxx txxx xx the Pequot Shareholders own less xxx Xxxxxx Sxxxxxxxxxxx xxx xess than 25% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's elected term;
(iii) One director designated by the Constellation Shareholders (the "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman;
(xxiv) Xxxxx Three "xxxxxendent directorsindependent directorx" (as such term xx xxxx xxxx is used in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's Common Stock is listed on the date hereof) who shall be selected by the Company's nominating and corporate governance committee;
(v) Two "independent directors" (as such term is used in clause (iv) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Company's nominating and corporate governance committee;
(vi) Subject to Section 3.1(b), Steven RothmanRothman and Howard Pavony.
(b) Notxxxxxxxxxxxx xnything Xxxxxxxxxxxding anything contained in Section 3.1(aXxxxxxx 0.0(a) to the contrary, the Investor Shareholders shall only be obligated under Section 3.1(a)(vi) with respect to Mr. Rothman (i) and Mr. Pavony for so long ax xx as such individual (x) xxs not been terminated by the Company has nox xxxx xxxxinatex xx xxx Xompany pursuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his the Employment Agreement Agreements and as follows:
(iii) from From and after the date hereof to, but not including, May 21, 2006; and
(ii) From and after May 21, 2006 to, but not including, May 21, 2007, to vote their Securities to elect to the Board of Directors either Mr. Pavony or Mr. Rothman as shall be determined by a majority xxxx of txx Xxxxx xx Directors (with Mr. Pavony and Mr. Rothman not being entitled to such vote), xxx xxx othex xxxxx xx entitled to attend each meeting of the Board of Directors as a non-voting observer, whether such meeting is conducted in person or by teleconference and shall receive all communications provided to the Board of Directors, at the same time and in the same manner that such communications are provided to such members of the Board of Directors.
(c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereof.
(d) If any vacancy shall occur in the Board of Directors as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), originally designated such vacating director; provided, however, that the foregoing shall not apply with respect to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate entitled to designate a director or a replacement for a director pursuant to Section 3.1(a) shall also be entitled to designate the removal of such director with or without cause.
(e) The Investor Shareholders hereby agree that (i) one of the five directors designated pursuant to Sections 3.1(a)(iv) and (v) above shall be the "financial expert" required on the audit committee of the Company by the Sarbanes-Oxley Act of 2002, ax xxxxxxx xxx as amended and (ii) the greatest extent permitted by applicable xxxxxxxxx xx xpplicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Shareholders pursuant to Section 3.1(a)(ii) shall qualify as "independent directors" (as such term is used in Section 3.1(a)(iv).
(f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee.
(g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting.
(h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument.
(i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
Appears in 1 contract
Boards of Directors; Voting Agreements. (a) From and after the date hereof to, but not including, December 10, 2009the fifth anniversary of the date hereof, and subject to paragraphs (b),(c) and (d) below, in any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder shall vote, or cause to be voted, or cause such Shareholder's designees as directors to vote, all Securities owned by such Shareholder or over which such Shareholder has voting control so as to nominate and elect such directors of the Company as follows:
(i) The Chief Executive Officer of the Company;
(ii) Two Three directors designated by Pequot Private Equity Fund III, L.P. (the "Pequot Designees"), for so long as the Pequot Shareholders own at least 2575% of the Pequot Shares, who shall initially be Gerald A. Poch Xxxxxx X. Xxxx, Xxxxx Xxxx and Richaxx Xxxxxxx Xxxxxxxxx; provided, xxxxxxxhowever, xxxx xx that if the Pequot Shareholders own less than 2575% of the Pequot Shares but at least 33 1/3% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate two directors; and provided, further, however, that if the Pequot Shareholders own less than 33 1/3% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and and, in each case, each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's elected term;
(iii) One director designated by the Constellation Shareholders (the Three "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman;
(xx) Xxxxx "xxxxxendent independent directors" (as such term is used in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's Common Stock is listed on the date hereofof the Series A-1 Closing) who shall be selected initially by the Board of Directors immediately prior to the Series A-1 Closing, and, thereafter by the Company's nominating and corporate governance committee, as established pursuant to Section 3.2; provided, that, in any event, such independent directors shall not be selected by the Pequot Shareholders, their Affiliates or any other holder of the Pequot Shares;
(viv) Two "independent directors" (as such term is used in clause (iviii) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Pequot Shareholders and initially, reasonably acceptable to the members of the Board of Directors who were such directors immediately prior to the Series A-1 Closing and, thereafter, to the Company's nominating and corporate governance committee;
(viv) Subject to Section 3.1(b), Steven RothmanXxxxxx Xxxxxxx and Xxxxxx Xxxxxx.
(b) Notxxxxxxxxxxxx xnything Notwithstanding anything contained in Section 3.1(a) to the contrary, the Investor Pequot Shareholders shall only be obligated under Section 3.1(a)(vi3.1(a)(v) with respect to Mr. Rothman (i) Xx. Xxxxxxx and Xx. Xxxxxx for so long ax xx as such individual (x) xxs has not been terminated by the Company pursuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his the Employment Agreement Agreements and as follows:
(iii) from From and after the date hereof to, but not including, May 21the second anniversary of the Series A-1 Closing; and
(ii) From and after the second anniversary of the Series A-1 Closing to, 2007but not including, the third anniversary of the Series A-1 Closing, to vote their Securities to elect to the Board of Directors either Xx. Xxxxxx or Xx. Xxxxxxx as shall be determined by a majority vote of the Board of Directors (with Xx. Xxxxxx and Xx. Xxxxxxx not being entitled to such vote), and the other shall be entitled to attend each meeting of the Board of Directors as a non-voting observer, whether such meeting is conducted in person or by teleconference and shall receive all communications provided to the Board of Directors, at the same time and in the same manner that such communications are provided to such members of the Board of Directors.
(c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (ix)(i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock Pequot Shares and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereof.
(d) If any vacancy shall occur in the Board of Directors as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), originally designated such vacating director; provided, however, that the foregoing shall not apply with respect to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate entitled to designate a director or a replacement for a director pursuant to Section 3.1(a) shall also be entitled to designate the removal of such director with or without cause.
(e) The Investor Pequot Shareholders hereby agree that (i) one of the five directors designated pursuant to Sections 3.1(a)(iv3.1(a)(iii) and (viv) above shall be the "financial expert" required on the audit committee of the Company by the SarbanesXxxxxxxx-Oxley Xxxxx Act of 2002, ax xxxxxxx xxx as amended and (ii) the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Pequot Shareholders pursuant to Section 3.1(a)(ii) shall qualify as "independent directors" (as such term is used in Section 3.1(a)(iv3.1(a)(iii).
(f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee.
(g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting.
(h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument.
(i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
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Boards of Directors; Voting Agreements. (a) From and after the date hereof to, but not including, December 10, 2009, and subject to paragraphs (b),(c) and (d) below, in In any and all elections of directors of the Company (whether at a meeting or by written consent in lieu of a meeting), each Shareholder Stockholder shall vote, or cause to be voted, or cause such ShareholderStockholder's designees as directors to vote, all Voting Securities owned by such Shareholder Stockholder or over which such Shareholder Stockholder has voting control so as to fix the number of directors of the Company at five (5), and to nominate and elect such five (5) directors of the Company as follows:
(i) The two (2) individuals designated by the Majority Class C Holders, who shall initially be Xxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxx, shall constitute the Class C Directors pursuant to Part B, Section 2(d) of Article Fourth of the Charter and shall each be entitled to that number of votes determined pursuant to Part B, Section 2(d) of Article Fourth of the Charter;
(ii) one (1) individual designated by the Majority Green Mountain Holders so long as the Green Mountain Investor and its Affiliates own, in the aggregate, five percent (5%) or more of the then outstanding shares of Common Stock (on a fully-diluted basis), who shall initially be Xxx Xxxxxxx, shall constitute a Class A Director pursuant to Part B, Section 2(d) of Article Fourth of the Charter and shall each be entitled to one (1) vote;
(iii) one (1) individual designated by the Majority Fulham Holders so long as the Fulham Investors and their Affiliates own, in the aggregate, five percent (5%) or more of the then outstanding shares of Common Stock (on a fully-diluted basis), who shall initially be Xxx Fulham, shall constitute a Class A Director pursuant to Part B, Section 2(d) of Article Fourth of the Charter and shall each be entitled to one (1) vote; and
(iv) Xxxx Xxxxxxxx, so long as he continues to be employed by the Company as Chief Executive Officer, and thereafter, his successor as Chief Executive Officer of the Company;
(ii, shall constitute a Class A Director pursuant to Part B, Section 2(d) Two directors designated by Pequot Private Equity Fund III, L.P. (the "Pequot Designees"), for so long as the Pequot Shareholders own at least 25% of Article Fourth of the Pequot Shares, who shall initially be Gerald A. Poch Charter and Richaxx Xxxxxxxxx; provided, xxxxxxx, xxxx xx the Pequot Shareholders own less than 25% of the Pequot Shares, then the Pequot Shareholders will only be entitled to designate one director; and each director designated by the Pequot Designees shall be entitled to serve as director for the remainder of such director's elected term;
one (iii1) One director designated by the Constellation Shareholders (the "Constellation Designees" and together with the Pequot Designees, the "Investor Designees"), who shall initially be Clifford Friedman;
(xx) Xxxxx "xxxxxendent directors" (as such term is used in the applicable regulations promulgated by Nasdaq or any other national stock exchange on which the Company's Common Stock is listed on the date hereof) who shall be selected by the Company's nominating and corporate governance committee;
(v) Two "independent directors" (as such term is used in clause (iv) above) selected by the Chief Executive Officer of the Company and reasonably acceptable to the Company's nominating and corporate governance committee;
(vi) Subject to Section 3.1(b), Steven Rothmanvote.
(b) Notxxxxxxxxxxxx xnything contained in Section 3.1(a) to the contrary, the Investor Shareholders shall only be obligated under Section 3.1(a)(vi) with respect to Mr. Rothman (i) for so long ax xx (x) xxs not been terminated by the Company pursuant to Section 4(a) or (y) has not terminated his employment with the Company other than pursuant to Section 4(b), in each case of his Employment Agreement and (ii) from and after the date hereof to, but not including, May 21, 2007.
(c) Notwithstanding anything contained in Section 3.1(a) to the contrary, the Principal Shareholders shall not be obligated pursuant to (x) Section 3.1(a)(ii) and (iii), if (i) the Pequot Shareholders own less than 10% of the shares of Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock issued to such Pequot Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-1 Preferred Stock, Series A-2 Preferred Stock and Series A-3 Preferred Stock owned by such Pequot Shareholders, (ii) the Constellation Shareholders own less than 10% of the shares of Series A-3 Preferred Stock issued to such Constellation Shareholders and all shares of Common Stock issued or issuable on conversion of the Series A-3 Preferred Stock owned by such Constellation Shareholders, and (iii) any other shareholders that are introduced to the Company by the Pequot Shareholders own less than 10% of the shares acquired by such shareholders from the Company in a transaction not including a public offering or (y) Section 3.1(a)(vi), if the Principal Shareholders own less than 10% of the number of shares of Common Stock owned by such Principal Shareholders on the date hereof.
(d) If any vacancy shall occur in the Board of Directors of the Company as a result of death, disability, resignation or any other termination of a director, the replacement for such vacating director shall be designated by the Person or Persons who, pursuant to Section 3.1(a), who originally designated such vacating director; provided, however, that the foregoing shall not apply with respect . The Person or Persons entitled to the vacancy occurring as a result of the resignation of Howard Pavony. Each Person enxxxxxx xx xxxignate designate a director or a replacement for a director pursuant to this Section 3.1(a) 4.1 shall also be entitled to designate the removal of such director director, with or without cause.
(e) The Investor Shareholders . Each Stockholder hereby agree that (i) one of the five agrees to vote or cause to be voted or cause such Stockholder's designees as directors designated pursuant to Sections 3.1(a)(iv) and (v) above shall be the "financial expert" required on the audit committee of the Company vote all Voting Securities owned by the Sarbanes-Oxley Act of 2002, ax xxxxxxx xxx (ii) the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, the directors designated by the Investor Shareholders pursuant such Stockholder or over which such Stockholder has voting control so as to comply with this Section 3.1(a)(ii) shall qualify as "independent directors" (as such term is used in Section 3.1(a)(iv4.1(b).
(f) To the greatest extent permitted by applicable law and the rules and regulations of the Nasdaq, at least one of the directors designated by the Pequot Shareholders pursuant to Section 3.1(a)(ii) above shall be a member of any committee formed by the Board of Directors including, without limitation, the compensation committee, audit committee, the nominating and the corporate governance committee.
(g) In addition to the Investor Designees, each of Pequot and Constellation shall be entitled to have one representative attend each meeting of the Board and any committee meetings as a non-voting observer, whether such meeting is conducted in person or by teleconference; provided, that each such non-voting observer, at the request of the Company, shall execute a confidentiality agreement with the Company prior to his first attendance of any such meeting.
(h) The Company shall not enter into any contract, agreement or other instrument with (i) any of its affiliates, (ii) any holder of Securities or (iii) any employee or director of the Company, on terms more favorable than the Company would obtain on an arms-length basis with a third party without first obtaining the written consent of a majority of members of the Board who do not have an interest (direct or indirect) in such contract, agreement or other instrument.
(i) The Company shall have no less than three (3) members on each of its audit committee and compensation committee. The nominating committee and the corporate governance committee shall have no less than four (4) members; one of which shall have been designated by the Pequot Shareholders and one of which shall have been designated by the Constellation Shareholders.
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