Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board. (b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors. (c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee. (d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board). (e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5. (f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 5 contracts
Samples: Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Walgreens Boots Alliance, Inc.), Shareholder Agreement (Amerisourcebergen Corp)
Composition of the Board of Directors. Promptly upon the Share Purchase, Sub shall be entitled to designate such number of directors on the Board of Directors of the Corporation, rounded up to the next whole number, as will give Sub, subject to compliance with Section 14(f) of the Exchange Act, representation on such Board of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (agiving effect to the directors elected pursuant to this sentence) Upon the occurrence of multiplied by a Walgreens Investor Rights Initiation Eventfraction, the Company’s board numerator of directors (which shall be the “Board”) took number of shares of Common Stock so accepted for payment and paid for or otherwise acquired or owned by Sub or Parent and the denominator of which shall be the number of shares of Common Stock then outstanding, and the Corporation and its Board of Directors shall, at such time, take any and all such action necessary needed to cause one (1) Walgreens Designee Sub's designees to be appointed to the Board.
Corporation's Board of Directors (b) Upon including to cause directors to resign). Promptly upon the occurrence Share Purchase, Corporation and its Board of Directors shall take such further action as may be requested by Sub to cause Sub's designees to constitute at least a Walgreens Investor Rights Step-Up Eventmajority of the Board of Directors of each direct or indirect Subsidiary of the Corporation (other than Allied Bond & Collection Agency, Inc.). Subject to applicable law, the Board Corporation shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action requested by Parent which is reasonably necessary (to effect any such election, including mailing to its shareholders an Information Statement containing the information required by amending the organizational documents Section 14(f) of the CompanyExchange Act and Rule 14f-1 promulgated thereunder, if necessary) and the Corporation agrees to cause one (1) additional Walgreens Designee make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Corporation on a timely basis all information required to be appointed included in such Information Statement with respect to Sub's designees. In furtherance thereof, the Board, such that Corporation will increase the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting size of the stockholders Corporation's Board of Directors, or use its reasonable efforts to secure the Company at which directors are resignation of directors, or both, as is necessary to permit Sub's designees to be elected to the Board, Corporation's Board of Directors. Upon the Company will nominate and use its reasonable best efforts Share Purchase (which shall, subject to Applicable Law, include including as defined in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation Section 1.1 hereof) all directors of the Board that stockholders Corporation, other than Sub's designees and two directors of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the CompanyCorporation, and, in each case of clause (i) and clause (ii)unless otherwise agreed, such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member officers of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5Corporation shall resign.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 4 contracts
Samples: Share Purchase Agreement (Union Corp), Share Purchase Agreement and Plan of Merger (Gulf State Credit LLP), Share Purchase Agreement (Outsourcing Solutions Inc)
Composition of the Board of Directors. (a) Upon Concurrently with the occurrence effectiveness of this Agreement, the Avista Investor Group and the Crestview Investor Group shall each have the right to designate the number of directors specified in the table below to the Board based on their respective Investor Ownership Percentage (any individual designated by the Avista Investor Group or the Crestview Investor Group, as applicable, an “Investor Director Designee”). The Company and each Stockholder shall take all Necessary Action to cause the Investor Director Designees to be elected and/or appointed to the Board. 22.5% or more 3 3 15-22.5% 2 2 5-15% 1 1
(b) As of the date hereof, the directors designated for appointment to the Board (i) by the Avista Investor Group shall be Xxxx Xxxxxx, designated as a Walgreens Class I Director, Xxxxxx Xxxxxxxx, designated as a Class II Director, and Xxxxx Xxxxxxxxxxx, designated as a Class III Director and (ii) by the Crestview Investor Rights Initiation EventGroup shall be Xxxxxxx Xxxxxx, designated as a Class I Director, Xxxxxx Xxxxxxxxxx, designated as a Class II Director, and Xxxxx Xxxxxxx, designated as a Class III Director. In addition, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of Chief Executive Officer, Xxxxxx Xxxxxxx, will initially serve as a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens DirectorsClass I Director.
(c) During It is the Walgreens Investor Rights Periodintent of the Investors to cause the Board to be comprised of eight directors, subject to until such time as the other provisions of this Section 1.1, including Section 1.1(d)Requisite FCC Approval is obtained, and Section 1.2, thereafter to expand the Board to nine directors at each annual or special meeting the discretion of the stockholders Board. In the event that a vacancy is created at any time by the death, disability, retirement, resignation or removal of the Company at which directors are to be elected to the Boardany director who was an Investor Director Designee, the Company will nominate agrees to take at any time and use its reasonable best efforts (which shall, subject from time to Applicable Law, include including in any proxy statement used time all actions necessary to cause the vacancy created thereby to be filled as promptly as practicable by a new Investor Director Designee designated by the Company same Investor that designated the Investor Director Designee to solicit the vote Board seat that has become vacant; provided that, for the avoidance of its stockholders in connection doubt, an Investor shall not have the right to designate a replacement director, and the Board of Directors and the Stockholders shall not be required to take any action to cause any vacancy to be filled with any such meeting Investor Director Designee, to the recommendation extent that election or appointment of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election such Investor Director Designee to the Board of Directors would result in a slate number of directors designated by the Investor in excess of the number of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designeeis then entitled to designate for membership on the Board of Directors pursuant to Section 3.1(a).
(d) WBA No Stockholder shall notify take any action with respect to the Company that would be inconsistent with the provisions of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board)this Agreement.
(e) Subject to Section 1.1(d) The Company and Section 1.2, so long as no Walgreens its Subsidiaries shall reimburse the Investor Rights Termination Event has occurred, Director Designees for all reasonable out-of-pocket costs or expenses incurred in the event connection with their attendance at meetings of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director or the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure board of a Walgreens Designee to be elected to the Board at directors of any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company’s Subsidiaries, andand any committees thereof, in each case of clause (i) including, without limitation, travel, lodging and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5meal expenses.
(f) The Company will at all times provide and its Subsidiaries shall obtain customary director and officer indemnity insurance on commercially reasonable terms which insurance shall cover each Walgreens Director (in his or her capacity as a member of the Board) with Board and the same rights to indemnification and exculpation that it provides to the other members of each board of directors of each of the BoardCompany’s Subsidiaries. The Company acknowledges and agrees that any such its Subsidiaries shall enter into director and officer indemnification obligations to indemnify or advance expenses agreements, in form and substance reasonably satisfactory to each Walgreens Directorof the Investors, in his or her capacity as such, for with each of the matters covered by such indemnification obligations, Investor Director Designees. The provisions of this Section 3.1(f) shall be the primary source survive any termination of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsAgreement.
Appears in 3 contracts
Samples: Stockholders Agreement (WideOpenWest, Inc.), Stockholders Agreement (WideOpenWest, Inc.), Stockholders Agreement (WideOpenWest, Inc.)
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject Subject to the other provisions of this Section 1.12.1, including Section 1.1(d)(i) for so long as the Investors Beneficially Own any Company Ordinary Shares, the Shareholder shall have the right to designate one Shareholder Designee, and Section 1.2to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; and (ii) for so long as the Investors Beneficially Own (collectively) at least ten percent (10%) of the then issued and outstanding Company Ordinary Shares, the Shareholder shall have the right to designate two Shareholder Designees, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; provided that no other Person shall have the exercisable right to designate more directors to the Board than the Shareholder as a result of any agreement between the Company and such Person and the Company shall take all necessary actions to give effect to this proviso, including, if necessary adjusting the size of the Board and the number of Shareholder Designees that the Shareholder has the right to designate.
(b) During the Board Seat Period, the Company shall procure that the appointment of the Shareholder Designees to the Board is proposed and recommended for approval by the Company’s shareholders at each the next annual or special general meeting of the stockholders Company following any designation by the Shareholder of such Shareholder Designee.
(c) If any Shareholder Designee is not appointed to the Board at any annual general meeting of the Company at which directors are to be elected during the Board Seat Period the Shareholder may designate a replacement Shareholder Designee for appointment to the Board, . The Company shall propose and recommend the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by appointment of such replacement Shareholder Designee at an extraordinary general meeting of the Company to solicit the vote of its stockholders in connection with be held not later than sixty (60) days after any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designeeannual general meeting.
(d) WBA If the Shareholder wishes to remove a Shareholder Director and designate another Shareholder Designee in his or her place pursuant to this Section 2.1, the Company shall propose and recommend the appointment of such replacement at the next annual general meeting of the Company following any such designation.
(e) The Shareholder shall notify the Company of the identity of any proposed Walgreens Designee, Shareholder Designee in writing, on at or before the time such information is reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company for inclusion in any materials to be provided to shareholders of the Company in connection with a proxy statement for a general meeting of stockholdersthe Company, together with all information about such proposed Walgreens Shareholder Designee as shall be reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company (including, at a minimum, any information regarding such proposed Walgreens Shareholder Designee to the extent required by applicable securities laws or for any other person nominated for election to the BoardLaw).
(ef) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurredDuring the Board Seat Period, in the event of (i) the death, disability, removal or resignation of a Walgreens Shareholder Director, the Board will promptly appoint as Shareholder may propose a replacement Walgreens Director the Walgreens Shareholder Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected for appointment to the Board and the Company shall propose and recommend the appointment of such replacement Shareholder Designee at any the next annual or special general meeting of the stockholders of Company after the Company at which Shareholder has proposed such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens replacement Shareholder Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(fg) The Company will at all times provide each Walgreens Shareholder Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation insurance that it provides to the other members of the Board and shall procure that the agenda for each annual general meeting of the Company during the Board Seat Period and the first annual general meeting following the termination of the Board Seat Period includes a resolution discharging all directors of the Board. , including any Shareholder Directors, in respect of their management during the prior fiscal year.
(h) During any period between the death, disability, removal or resignation of a Shareholder Director and the appointment of any replacement Shareholder Designee to the Board, such Shareholder Designee shall be entitled to attend meetings of the Board in the capacity of an observer with the right to speak and participate in discussions of the Board, but without any voting rights, and the Company shall provide such Shareholder Designee with written notice of all Board meetings and all Board papers on the same basis as notices and Board documents are provided to the directors of the Company.
(i) The Parent and the Shareholder acknowledge that the Company acknowledges will require, prior to his or her nomination:
(i) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other non-executive directors of the Company, to be bound by and agrees that any such indemnification obligations duly comply with applicable Law, the Articles of Association, the rules and practices applicable to indemnify the Board and its committees and the corporate governance principles applied by the Company;
(ii) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other members of the Board, to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses to each Walgreens Director, she becomes aware in his or her capacity as sucha member of the Board;
(iii) each Shareholder Designee to be appointed to the Board to agree in writing to recuse himself or herself from any deliberations or discussions of the Board or any committee of the Board regarding any Transaction Agreement, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, transactions contemplated thereby and any obligation matter related thereto;
(iv) each Shareholder Designee to be appointed to the Board to agree in writing to (x) resign from the Board effective immediately upon the termination of the Board Seat Period and (y) resign from the Board effective on the part date that the Investors Beneficially Own (collectively) less than ten percent (10%) of any Investor Indemnitor under any Investor Indemnification Agreement the then issued and outstanding Company Ordinary Shares, to indemnify the extent such Shareholder Designee is designated by the Shareholder to resign; and
(v) each Shareholder Designee that acts as an observer to agree in writing to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses she becomes aware in his or her capacity as an observer. The Parent and the Shareholder shall cause each Shareholder Designee and each Shareholder Director to such Walgreens comply with all of the agreements referenced in the foregoing clauses (i)-(v).
(j) Notwithstanding anything to the contrary herein, during the Board Seat Period, each Shareholder Director shall be secondary entitled to attend meetings of the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsShareholders.
Appears in 3 contracts
Samples: Shareholder Agreement (American International Group Inc), Share Purchase Agreement (AerCap Holdings N.V.), Share Purchase Agreement (American International Group Inc)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Merger Sub in accordance with the Offer for, shares of Common Stock equal to at least a Walgreens Investor Rights Initiation Eventmajority of the outstanding shares of Common Stock, pursuant to the Offer, Merger Sub shall be entitled to designate up to such number of directors on the Board of Directors of the Company, rounded up to the next whole number, as will give Merger Sub, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on such Board of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the Company’s board numerator of directors (which shall be the “Board”) took number of shares of Common Stock beneficially owned by Merger Sub and Parent and the denominator of which shall be the number of shares of Common Stock then outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary needed to cause one (1) Walgreens Designee Merger Sub's designees to be appointed to the BoardCompany's Board of Directors (including using its reasonable best efforts to cause directors to resign). Subject to applicable law, the Company shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its stockholders an information statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder (the "Information Statement"), and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Merger Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Merger Sub's designees. Parent or Merger Sub will be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company will increase the size of the Company's Board of Directors (subject to the limitations set forth in the Company Charter and By-Laws), or use its reasonable efforts to secure the resignation of directors, or both, as is necessary to permit Merger Sub's designees to be elected to the Company's Board of Directors. At the Effective Time, the Company, if so requested, will use its reasonable efforts to cause persons designated by Merger Sub to constitute the same percentage of each committee of such board, each board of directors of each Subsidiary and each committee of each such board (in each case to the extent of the Company's ability to elect such persons and subject to any applicable stock exchange regulations).
(b) Upon Following the occurrence election or appointment of a Walgreens Investor Rights StepMerger Sub's designees pursuant to this Section 2.3 and prior to the Effective Time, any amendment or termination of this Agreement or the Company Charter or By-Up EventLaws, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including termination of this Agreement by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used extension by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity time for the performance of any proposed Walgreens Designeeof the obligations or other acts of Parent and Merger Sub or waiver of any of the Company's rights hereunder, in writing, on and any other consent or before the time such information is reasonably requested action by the Board or of Directors hereunder, will require the Governance and Nominating Committee for inclusion in concurrence of a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as majority (which shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(eleast two) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders directors of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), then in office who are directors on the Board will promptly appoint another Walgreens Designee date hereof and who voted to approve this Agreement or are designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting majority of the stockholders directors of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation who are directors on the part of any Investor Indemnitor under any Investor Indemnification Agreement date hereof and who voted to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and approve this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsAgreement.
Appears in 3 contracts
Samples: Merger Agreement (Entertainment Inc), Merger Agreement (Bison Acquisition Corp), Merger Agreement (United Pan Europe Communications Nv)
Composition of the Board of Directors. (a) Upon The Company shall have a Board of Directors composed of 12 (twelve) members each Director having a term in office of 3 (three) years, re-election being permitted. Subject to the occurrence provisions of a Walgreens Investor Rights Initiation EventSections 2.12 and 6 hereto, each of the Company’s board TEF Group and the PT Group shall have the right to make binding nominations to appoint 6 (six) Directors, provided that at least 3 (three) of directors each such 6 (the “Board”six) took the action necessary to cause one (1) Walgreens Designee Directors shall be required to be appointed to resident in the BoardNetherlands.
(b) Upon Each of the occurrence Shareholders agrees to exercise its voting rights in the relevant Shareholders Meeting to appoint the Directors nominated by each of the TEF Group and the PT Group in terms of Section 2.2(a) above. In the event of a Walgreens Investor Rights Step-Up Eventvacancy in the Board of Directors (including, without limitation, as a result of removal), the Board replacement member shall promptly (be nominated by binding nomination of the Shareholder’s Group which nominated the Director being replaced, for the period left to complete the relevant term in office. A Shareholder may require the suspension, removal or replacement of a Director nominated by that Shareholder’s Group at any time and for any reason. Each Shareholder in a Group shall have the right to require the suspension or removal of a Director nominated by the Shareholders in the other Group, provided that this is for Just Cause. The Shareholder requesting the replacement of a Director shall deliver a notice to the other Shareholders which shall contain the request to replace the relevant Director and in the event that such Director was nominated by the other Group a description of the relevant Just Cause. Provided that the Just Cause as stated in such notice is accepted by the other Shareholders, a Shareholders Meeting shall be held within 30 (thirty) days of the receipt of such notice to replace the relevant Director. Subject to the mandatory provisions of any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending applicable law, and more particularly Netherlands employment law, each of the organizational documents of TEF Group, the PT Group and the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to as the Boardcase may be, such shall procure that the Board shall have two (2) Walgreens Directors.
(c) During terms and conditions upon which Directors are appointed in terms of the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.12.2, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by such that the Board or Directors will not have the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee right to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, indemnification in the event of (i) the death, disability, suspension or removal or resignation of a Walgreens Director, the Board will promptly appoint from their duty as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5Directors.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 3 contracts
Samples: Shareholder Agreement (Portugal Telecom SGPS Sa), Shareholder Agreement (Telefonica Mobile Inc), Shareholder Agreement (Telefonica S A)
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Initiation Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA Walgreens shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA Walgreens to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA Walgreens to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBAWalgreens, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or if to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 3 contracts
Samples: Shareholder Agreement (Walgreen Co), Framework Agreement (Walgreen Co), Shareholder Agreement (Amerisourcebergen Corp)
Composition of the Board of Directors. During the Specified Period:
(a) Upon the occurrence Entire Board of a Walgreens Investor Rights Initiation EventDirectors shall be comprised of sixteen (16) Directors, of which eight (8) shall be Legacy South State Directors (one of whom, as of the Company’s board Effective Time, shall be the Chief Executive Officer of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed Legacy South State as of immediately prior to the Board.Effective Time) and eight (8) shall be Legacy CenterState Directors (one of whom, as of the Effective Time, shall be the Chief Executive Officer of Legacy CenterState as of immediately prior to the Effective Time and one of whom, as of the Effective Time, shall be Cxxxxxx X. XxXxxxxxx, who shall serve as Lead Independent Director as of the Effective Time);
(b) Upon all vacancies resulting from the occurrence cessation of a Walgreens Investor Rights Step-Up Event, service by any Legacy South State Director for any reason shall be filled by the Board shall promptly (and in any case within ten (10) Business Days) after receiving of Directors with a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including nominee selected by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.Legacy South State Directors Nominating Committee;
(c) During all vacancies resulting from the Walgreens Investor Rights Periodcessation of service by any Legacy CenterState Director for any reason shall be filled by the Board of Directors with a nominee selected by the Legacy CenterState Directors Nominating Committee;
(d) the Legacy South State Directors Nominating Committee shall have the exclusive authority to nominate, subject to on behalf of the other provisions Board of this Section 1.1Directors, including Section 1.1(d), and Section 1.2, directors for election at each annual meeting, or at any special meeting of the stockholders of the Company at which directors are to be elected elected, to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used fill each seat previously held by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).Legacy South State Director;
(e) Subject the Legacy CenterState Directors Nominating Committee shall have the exclusive authority to Section 1.1(dnominate, on behalf of the Board of Directors, directors for election at each annual meeting, or at any special meeting at which directors are to be elected, to fill each seat previously held by a Legacy CenterState Director; and
(f) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in at the event of (i) the death, disability, removal or resignation of a Walgreens DirectorEffective Time, the Board Legacy South State Directors Nominating Committee shall determine which class of directors each Legacy South State Director will promptly appoint join as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders Effective Time and the Legacy CenterState Directors Nominating Committee shall determine which class of directors each Legacy CenterState Director will join as of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, andEffective Time, in each case subject to achieving as near as possible proportional representation of clause (i) Legacy CenterState Directors and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent Legacy South State Directors in each class of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5directors.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 3 contracts
Samples: Merger Agreement (CenterState Bank Corp), Merger Agreement (CenterState Bank Corp), Merger Agreement (SOUTH STATE Corp)
Composition of the Board of Directors. (a) Upon Following the occurrence Closing Date, each Investor shall have the right to designate for election to the Board, and the Issuer shall include among the Issuer’s and its Directors’ nominees for election to the Board at all of the Issuer’s applicable annual or special meetings of stockholders (or written consents) at which Directors are to be elected (adjusted as appropriate to take into account the Issuer’s classified Board structure), subject to satisfaction of all legal and governance requirements regarding service as a Walgreens Investor Rights Initiation EventDirector in accordance with Section 3.1(d), the Company’s board number of directors designees that, if elected, will result in such Investor having the number of Directors serving on the Board as follows:
(i) If the “Board”TA Stockholders collectively Beneficially Own 15% or more of the Combined Voting Power as of the record date for a stockholders’ meeting, two (2) took Directors designated by the action necessary to cause TA Stockholders; and if the TA Stockholders collectively Beneficially Own 5% or more, but less than 15%, of the Combined Voting Power as of the record date for a stockholders’ meeting, one (1) Walgreens Designee to be appointed to Director designated by the BoardTA Stockholders (any such designee, a “TA Designee”); and
(ii) If the Carlyle Stockholders collectively Beneficially Own 15% or more of the Combined Voting Power as of the record date for a stockholders’ meeting, two (2) Directors designated by the Carlyle Stockholders; and if the Carlyle Stockholders collectively Beneficially Own 5% or more, but less than 15%, of the Combined Voting Power as of the record date for a stockholders’ meeting, one (1) Director designated by the Carlyle Stockholders (any such designee, a “Carlyle Designee”).
(b) Upon Following the occurrence of a Walgreens Investor Rights Step-Up EventClosing Date, the Board Founder Stockholders shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending have the organizational documents of the Company, if necessary) right to cause designate one (1) additional Walgreens Designee to be appointed Director designee for election to the Board, and the Issuer shall include such that designee among the Issuer’s and its Directors’ nominees for election to the Board shall have two at all of the Issuer’s applicable annual or special meetings of stockholders (2or written consents) Walgreens Directorsat which Directors are to be elected (adjusted as appropriate to take into account the Issuer’s classified Board structure), subject to satisfaction of all legal and governance requirements regarding service as a director of the Issuer in accordance with Section 3.1(d), so long as the Founder Stockholders, directly or indirectly, collectively Beneficially Own 5% or more of the Combined Voting Power as of the record date for a stockholders’ meeting (the “Founder Designee”).
(c) During As of the Walgreens Investor Rights PeriodClosing Date, subject the Board shall be comprised of nine Directors, and the Directors initially designated for appointment to the other provisions of this Section 1.1Board (i) by the TA Stockholders shall be Xxxxx Xxxxxxx, including Section 1.1(d)designated as a Class II Director, and Section 1.2Xxxx Xxxxxxxx, at each annual or special meeting designated as a Class III Director, (ii) by the Carlyle Stockholders shall be Xxxxxxx XxXxxxxx, designated as a Class II Director and Xxxxxx Xxxxx, designated as a Class III Director, and (iii) by the Founder Stockholders shall be Xxxxx Xxxxxx, designated as a Class I Director. Notwithstanding any resolution adopted by the Board which determines the number of Directors constituting the stockholders of the Company at which directors are to be elected to the whole Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation size of the Board shall not be increased above nine Directors (or seven or eight in the event that stockholders the size of the Company vote in favor Board is decreased pursuant to Section 3.1(e)) without the consent of each of the slate of directors) TA Stockholders or the Carlyle Stockholders so long as the TA Stockholders or the Carlyle Stockholders, as applicable, have the right to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, designate at least one (1) Walgreens DesigneeDirector pursuant to Section 3.1(a).
(d) WBA shall notify If the Company Issuer’s Nominating and Corporate Governance Committee determines that a Director Designee (i) is not qualified to serve on the Board consistent with such committee’s policies and procedures or (ii) does not satisfy all legal and governance requirements regarding service as a Director of the identity of any proposed Walgreens Issuer, the applicable nominating Investor shall have the right to designate a different Director Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject Except as provided in Section 3.1(a), if the number of individuals that the TA Stockholders or the Carlyle Stockholders have the right to designate for election to the Board is decreased pursuant to Section 1.1(d) 3.1(a), then the corresponding number of Director designees of such Investor shall immediately tender his or her resignation for consideration by the Board, and Section 1.2in the event the Board accepts such resignation, so long as no Walgreens Investor Rights Termination Event has occurredthe Issuer and the Investors shall immediately take any and all actions necessary or appropriate to cooperate in ensuring the removal of such individual; provided that the last remaining Director designated by the TA Stockholders or the Carlyle Stockholders shall resign from the Board at the end of his or her then current term. Notwithstanding any resolution adopted by the Board which determines the number of Directors constituting the whole Board, in the event that the number of individuals that the TA Stockholders or the Carlyle Stockholders have the right to designate for election to the Board is decreased to one (1) pursuant to Section 3.1(a) for such Stockholder, as applicable, the total authorized number of Directors of the Board shall automatically be reduced by the corresponding number of Directors. Except as provided above and subject to the applicable provisions of the Amended and Restated Certificate of Incorporation of the Issuer, each Investor shall have the sole and exclusive right to (i) direct the other Investors and Founder Stockholders to vote all their Shares immediately for the removal of such Investor’s designees to the Board and (ii) designate a Carlyle Designee or TA Designee, as applicable (serving in the same class as the predecessor), to fill vacancies on the Board pursuant to Section 3.1(a) that are created by reason of death, disability, removal or resignation of a Walgreens Directorsuch designees, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant subject to Section 1.2 or to the extent necessary to remedy a breach of Section 1.53.1(d).
(f) The Company will at Issuer and each of the Investors and the Founder Stockholders shall take all times provide actions necessary and within their control to give effect to the provisions contained in this Article III, including (i) in the case of the Issuer, soliciting proxies for each Walgreens Director (in his or her capacity Designee and otherwise using its best efforts to cause each Director Designee to be elected as a member Director of the BoardIssuer, and (ii) in the case of the Investors and the Founder Stockholders, voting the Shares held directly or indirectly by such Investors and Founder Stockholders (whether at a meeting or by written consent) and any of their respective Affiliates, to cause the nomination, election, removal or replacement of the Director Designees as provided for herein and otherwise using their best efforts to cause the Issuer to comply with its obligations hereunder. No Person shall take any action that would be inconsistent with or otherwise circumvent the provisions of this Agreement.
(g) The Issuer and its Subsidiaries shall reimburse the Directors for all reasonable out-of-pocket expenses incurred in connection with their attendance at meetings of the Board or the board of directors of any of the Issuer’s Subsidiaries, and any committees thereof, including without limitation travel, lodging and meal expenses, in accordance with the same rights to indemnification Issuer’s reimbursement policies. Except as otherwise determined by the Board, the TA Designees and exculpation that it provides to the other Carlyle Designees shall not be compensated for their services as members of the Board. If the Issuer adopts a policy that Directors own a minimum amount of equity in the Issuer, Director Designees shall not be subject to such policy.
(h) The Company acknowledges Issuer and agrees that any such its Subsidiaries shall obtain customary director and officer indemnity insurance on commercially reasonable terms which insurance shall cover each member of the Board and the members of each board of directors of each of the Issuer’s Subsidiaries. The Issuer and its Subsidiaries shall enter into director and officer indemnification obligations to indemnify or advance expenses to agreements substantially in the form attached as Exhibit C hereto, with each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be Investor’s and the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation Founder Stockholders’ designees on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsBoard.
Appears in 2 contracts
Samples: Stockholders Agreement (ZoomInfo Technologies Inc.), Stockholders Agreement (ZoomInfo Technologies Inc.)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence ------------------------------------- acceptance for payment of, and payment by Acquiror for, Shares equal to at least a majority of a Walgreens Investor Rights Initiation Eventthe outstanding shares of Common Stock, the Company’s board Acquiror shall be entitled to designate up to such number of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, on the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of Directors of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed rounded up to the Boardnext whole number, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Periodas will give Acquiror, subject to the other provisions of this compliance with Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting 14(f) of the stockholders Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors are to be elected on the Board of Directors of the Company (giving effect to the Boarddirectors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock directly or indirectly beneficially owned by Acquiror and Parent and the denominator of which shall be the number of shares of Common Stock then outstanding. Subject to applicable law, the Company will nominate shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its shareholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Parent shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Parent's designees. Parent and Acquiror shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company shall increase the size of the Board of Directors of the Company (subject to the limitations set forth in the Company's Articles of Incorporation or the Company's Bylaws or imposed by applicable law), or use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by secure the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate resignation of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwiseboth, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information as is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee necessary to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee permit Acquiror's designees to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders Directors of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 2 contracts
Samples: Merger Agreement (Pine Holdings Inc), Merger Agreement (Pulaski Furniture Corp)
Composition of the Board of Directors. Promptly upon the acceptance for payment of, and payment by Purchaser in accordance with the Offer for, any Shares, and from time to time thereafter as Shares are acquired by Purchaser, Purchaser shall be entitled to designate such number of directors on the Board of Directors of the Company, rounded up to the next whole number, as will give Purchaser, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on such Board of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (agiving effect to the directors elected pursuant to this sentence) Upon the occurrence of multiplied by a Walgreens Investor Rights Initiation Eventfraction, the Company’s board numerator of directors (which shall be the “Board”) took number of Shares so accepted for payment and paid for or otherwise acquired or owned by Parent or Purchaser and the action necessary denominator of which shall be the number of shares of Common Stock then issued and outstanding, and the Company and its Board of Directors shall, at such time, use its reasonable efforts to cause one (1) Walgreens Designee Purchaser's designees to be appointed to the Board.
Company's Board of Directors. In no event shall there be less than two Independent Directors (bas hereinafter defined) Upon on the occurrence Company's Board of a Walgreens Investor Rights Step-Up EventDirectors. Subject to applicable law, the Board Company shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action requested by Parent which is reasonably necessary (to effect any such election, including mailing to its shareholders an information statement containing the information required by amending Section 14(f) of the organizational documents Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9, so long as Purchaser shall have provided to the Company on a timely basis all information required to be included in an information statement with respect to Purchaser's designees. In furtherance thereof, the Company will increase the size of the Company's Board of Directors, if necessary) or use its reasonable efforts to cause one (1) additional Walgreens Designee secure the resignation of directors, or both, as is necessary to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are permit Purchaser's designees to be elected to the BoardCompany's Board of Directors. Following the election of any Purchaser's designees pursuant to this Section 1.03 and prior to the Effective Time, any amendment of this Agreement or the Company will nominate and use its reasonable best efforts (which shallArticles of Incorporation or By-Laws of the Company, subject to Applicable Law, include including in any proxy statement used termination of this Agreement by the Company to solicit the vote of its stockholders in connection with Company, any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify extension by the Company of the identity time for the performance of any proposed Walgreens Designee, in writing, on of the obligations or before other acts of Purchaser or waiver of any of the time such information is reasonably requested by Company's rights hereunder shall require the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation concurrence of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting majority of the stockholders directors of the Company then in office who neither are Parent nor Purchaser's designees nor are employees of the Company or any of its Subsidiaries (the "Independent Directors"). The Independent Directors shall have the authority to retain such counsel and other advisors at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”)the expense of the Company as are reasonably appropriate to the exercise of their duties in connection with this Agreement. In addition, the Board will promptly appoint another Walgreens Designee designated by WBA Independent Directors shall have the authority to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders institute any action, on behalf of the Company, and, in each case to enforce performance of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5this Agreement.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 2 contracts
Samples: Merger Agreement (Travel Services International Inc), Merger Agreement (Travel Services International Inc)
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Amazon Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten fifteen (1015) Business Days) after receiving a Walgreens an Amazon Investor Rights Step-Up Initiation Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Amazon Designee to be appointed to the Board. For the avoidance of doubt, the Amazon Investor Rights Initiation Event Notice shall be delivered in Amazon’s sole discretion, and nothing herein obligates Amazon to deliver such that the Board shall have two (2) Walgreens Directorsnotice.
(cb) During the Walgreens Amazon Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d1.1(c), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will shall nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Amazon Designee.
(dc) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the The Board or the Nominating and Governance and Nominating Committee shall notify Amazon at least sixty (60) days prior to the time the Company requires information with respect to any proposed Amazon Designee for inclusion in a proxy statement for a meeting of stockholders. At least thirty (30) days prior to such time, together with Amazon shall (i) notify the Company of the identity of any proposed Amazon Designee, in writing; (ii) furnish all information about such proposed Walgreens Amazon Designee as shall be reasonably requested by the Board or the Nominating and Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Amazon Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board); and (iii) use reasonable best efforts to cause the Amazon Designee to (x) meet with the Board and Nominating and Governance Committee (to the extent requested by the Board or the Nominating and Governance Committee), and (y) provide the Board or the Nominating and Governance Committee with a completed director and officer questionnaire in the form reasonably requested by the Board or Nominating and Governance Committee.
(ed) Subject to Section 1.1(d1.1(c) and Section 1.2, so long as no Walgreens Amazon Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens an Amazon Director, the Board will shall promptly appoint as a replacement Walgreens Amazon Director the Walgreens Amazon Designee designated by WBA Amazon to fill the resulting vacancy, or (ii) the failure of a Walgreens an Amazon Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Amazon Designee stood for election but was nevertheless not elected (such Walgreens Amazon Designee, a an “Walgreens Amazon Specified Designee”), the Board will shall promptly appoint another Walgreens Amazon Designee designated by WBA Amazon to serve in lieu of such Walgreens Amazon Specified Designee as a Walgreens an Amazon Director during the term that such Walgreens Amazon Specified Designee would have served had such Walgreens Amazon Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens an Amazon Director for all purposes hereunder. Neither the Company nor the Board will shall remove any Walgreens Amazon Director without the prior written consent of WBAAmazon, unless such Walgreens Amazon Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or if to the extent necessary to remedy a breach of Section 1.5.
(fe) The Company will shall at all times provide each Walgreens Amazon Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, Amazon Director in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Amazon Director in connection therewith, and any obligation on the part of any Investor Amazon Indemnitor under any Investor Amazon Indemnification Agreement to indemnify or advance expenses to such Walgreens Amazon Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Companyobligation. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “If there are Unpaid Indemnitee Amounts”)Amounts with respect to such Amazon Director, and any Investor Amazon Indemnitor makes any payment to such Walgreens Amazon Director in respect of indemnification or advancement of expenses under any Investor Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Amazon Indemnitor shall be subrogated to the rights of such Walgreens Amazon Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 2 contracts
Samples: Stockholders Agreement (Air Transport Services Group, Inc.), Stockholders Agreement (Air Transport Services Group, Inc.)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Sub for, Offer Securities equal to at least a majority of a Walgreens Investor Rights Initiation Eventthe Common Stock Equivalents, the Company’s board Sub shall be entitled to designate up to such number of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, on the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of Directors of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed rounded up to the Boardnext whole number, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Periodas will give Sub, subject to the other provisions of this compliance with Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting 14(f) of the stockholders Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors are to be elected on the Board of Directors of the Company (giving effect to the Boarddirectors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Common Stock Equivalents represented by Offer Securities beneficially owned by Sub and Parent and the denominator of which shall be the number of Common Stock Equivalents represented by Offer Securities then outstanding. Subject to applicable law, the Company will nominate shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees. Parent and Sub shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company shall increase the size of the Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-Laws), or use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by secure the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate resignation of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwiseboth, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information as is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee necessary to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee permit Sub's designees to be elected to the Board at any annual or special meeting of Directors of the stockholders of Company; PROVIDED, HOWEVER, in the Company at which such Walgreens Designee stood for election but was nevertheless not event that Sub's designees are elected (such Walgreens Designee, a “Walgreens Specified Designee”), or appointed to the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders Directors of the Company, anduntil the Effective Time, the Board of Directors of the Company shall have at least one director who is a director on the date hereof and who is not an Affiliate or associate of Parent or Sub or any other Person who beneficially owns Offer Securities representing 5% or more of the Common Stock Equivalents, or is designated by a majority of the directors of the Company who are such directors (each, an "INDEPENDENT Director"). At the Effective Time, the Company, upon the request of Parent or Sub, shall use its reasonable best efforts to cause Persons designated by Sub to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary and each committee of each such Board of Directors (in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary of the Company's ability to remedy a breach elect such Persons). Promptly upon the exercise by Sub of Section 1.5any of the Warrants, the Company shall issue the relevant number of shares of Common Stock to Sub, all in accordance with the terms of the Common Stock Purchase Warrant Agreement or the Microsoft Warrant Agreement, as the case may be.
(fb) The Following the election or appointment of Sub's designees pursuant to this Section 2.3 and prior to the Effective Time, any amendment or termination of this Agreement, the Company's Certificate of Incorporation or the Company's By-Laws, any termination of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Parent and agrees that Sub or waiver of any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany's rights hereunder, and any obligation on other consent or action by the part Board of any Investor Indemnitor under any Investor Indemnification Directors of the Company hereunder, shall require the concurrence of a majority of the Independent Directors. Notwithstanding anything in this Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In contrary, in the event that Parent's and Sub's designees constitute a majority of the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountsdirectors on the Board of Directors of the Company, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor Independent Directors shall be subrogated entitled, on behalf and at the expense of the Company, to the rights of such Walgreens Director take any action under this Agreement or in respect connection with this Agreement and the transactions contemplated hereby, including taking legal action regarding the enforcement of such Unpaid Indemnitee Amountsthe terms of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Wang Laboratories Inc), Merger Agreement (Wang Laboratories Inc)
Composition of the Board of Directors. (a) Upon Effective as of the occurrence Effective Time, the Board of Directors of the Corporation shall be comprised of nine Directors, of which four shall be Knight Directors (which shall include Xx. Xxxxx and at least three Independent Directors) and five of which shall be GETCO Directors (which shall include Xx. Xxxxxxx and at least two Independent Directors). During the Specified Period, subject to compliance with the applicable Independent Director Requirement, all vacancies on the Board of Directors of the Corporation created by the cessation of service of a Walgreens Investor Rights Initiation EventKnight Director shall be filled by a nominee proposed by the Knight Director Committee, and all vacancies on the Board of Directors of the Corporation created by the cessation of service of a GETCO Director shall be filled by a nominee proposed by the GETCO Director Committee. During the Specified Period and subject to the Independent Director Requirement, the Company’s board Knight Directors Committee shall have the exclusive authority to nominate, on behalf of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee Board of Directors, Directors for election at each annual meeting, or at any special meeting at which Directors are to be appointed elected, to fill each seat previously held by a Knight Director. During the Specified Period and subject to the BoardIndependent Director Requirement, the GETCO Directors Committee shall have the exclusive authority to nominate, on behalf of the Board of Directors, Directors for election at each annual meeting, or at any special meeting at which Directors are to be elected, to fill each seat previously held by a GETCO Director. Neither the Knight Directors nor the GETCO Directors will take any action that would cause them to fail to remain in compliance with the Independent Director Requirement.
(b) Upon The Board of Directors shall establish a Knight Directors Committee, which shall be comprised of all the occurrence Knight Directors. The Knight Directors Committee shall, in consultation with the GETCO Directors Committee, have all the power and may exercise all the authority of the Board of Directors to (i) fill all vacancies on the Board of Directors created by the cessation of service of a Walgreens Investor Rights Step-Up EventKnight Director and (ii) to nominate Directors for election at each annual meeting, or at any special meeting at which Directors are to be elected, to fill each seat previously held by a Knight Director. At the end of the Specified Period, the Board Knight Directors Committee shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directorsautomatically disbanded.
(c) During The Board of Directors shall establish a GETCO Directors Committee, which shall be comprised of all the Walgreens Investor Rights Period, subject GETCO Directors. The GETCO Directors Committee shall have all the power and may exercise all the authority of the Board of Directors to (i) fill all vacancies on the other provisions Board of this Section 1.1, including Section 1.1(d), Directors created by the cessation of service of a GETCO Director and Section 1.2, (ii) to nominate Directors for election at each annual meeting, or at any special meeting of the stockholders of the Company at which directors Directors are to be elected elected, to fill each seat previously held by a GETCO Director. At the Boardend of the Specified Period, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating GETCO Directors Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board)automatically disbanded.
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 2 contracts
Samples: Merger Agreement (Knight Capital Group, Inc.), Merger Agreement (GETCO Holding Company, LLC)
Composition of the Board of Directors. (a) Upon As of one (1) Business Day after the occurrence of a Walgreens Investor Rights Initiation Eventdate hereof, the Company’s board of directors of the Company (the “Board”) took the action necessary to cause shall consist of ten (10) directors designated by Parent, one (1) Walgreens Designee to of which shall be Xx. Xxxx Xx (“FH”), who shall be appointed as the Company’s initial Chairman; provided, that, and notwithstanding anything contained in this Section 1.1 to the contrary, if FH is unable to serve due to death, disability or incapacity as of such time of appointment, PV shall be entitled to designate another Person to serve as the Investor Designee and a director (who need not be the Chairman) of the Company effective as of one Business Day after the Effective Time, in which event the Board shall consist of ten (10) directors or eleven (11) directors, as determined in the Board’s discretion. FH and any other Investor Designee (as defined below) shall, at the time of his or her appointment to the Board, execute and deliver to the Company an irrevocable conditional letter of resignation in the form attached hereto as Exhibit A (the “Resignation Letter”).
(b) Upon Following the occurrence Effective Time, so long as PV together with its Affiliates Beneficially Owns a number of a Walgreens Investor Rights Step-Up Event, the Board shall promptly shares of Company Common Stock that is at least fifty percent (and in any case within ten (1050.0%) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Companynumber of PV Shares as of immediately following the Closing (as defined in the PV Investment Agreement) (but giving effect to any adjustment pursuant to Section 2.4(b) or Section 2.4(c) of the PV Investment Agreement) (the “PV Shareholding Requirement”), if necessary) PV shall have the right to cause nominate one (1) additional Walgreens Investor Designee to who shall be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, a Qualified Director for election at each annual or special meeting of the stockholders of the Company or action by written consent at which directors are to be elected and, for the avoidance of doubt, the Board shall include such Investor Designee in the slate of nominees recommended by the Board in the Company’s proxy statement (and any related proxy cards); provided, that prior to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote third annual meeting of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote after the date hereof, PV shall only have the right to nominate an Investor Designee for election at an annual meeting at which such Investor Designee’s term expires in favor accordance with the Certificate; provided, further, that prior to the third annual meeting of stockholders of the slate of directors) Company, unless FH is unable to cause the election serve due to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal incapacity or resignation retirement or ceases to be employed by PV or any of a Walgreens Directorits Affiliates, the Board will promptly appoint Investor Designee shall be FH. FH or any person designated to serve as a replacement Walgreens Director director by PV pursuant to the Walgreens Designee designated by WBA foregoing sentence is referred to fill as the resulting vacancy“Investor Designee.” At such time when the PV Shareholding Requirement is not met, or then (iix) the failure conditions set forth in the applicable Investor Designee’s Resignation Letter shall be satisfied and the Board shall be entitled (but not required) to accept such Investor Designee’s resignation (and, for the avoidance of a Walgreens Designee doubt, such Investor Designee’s resignation shall not be effective until accepted by the Board) and (y) in the event the Board accepts such Investor Designee’s resignation, PV’s right to designate the PV Observer (as defined below) in accordance with Section 1.1(f) shall terminate and the PV Observer shall automatically cease to be elected a Board Observer and shall have no further rights as a Board Observer. In connection with the election of directors at any annual meeting of stockholders or action by written consent of the Company after the Effective Time, and subject to the terms of this Agreement (including the immediately preceding sentence) and Applicable Law, the Company shall take all actions necessary to provide that the Investor Designee is nominated for election or re-election (including by using substantially the same level of efforts and providing no less than substantially the same level of support as is used and/or provided for the other director nominees of the Company with respect to the applicable meeting of stockholders or action by written consent), as applicable, to the Board at such annual meeting or pursuant to such action by written consent and the remaining directors shall be nominated in accordance with the provisions of this Agreement, the Certificate and the Bylaws, and the Company shall solicit proxies for such Investor Designee to the same extent as it does for any annual or special meeting of its other nominees to the Board. For the avoidance of doubt, failure of the stockholders of the Company at which to elect such Walgreens Investor Designee stood provided for in this Section 1.1(b) to the Board shall not affect the right of PV to nominate a director for election but was nevertheless not elected in any future election of directors. The Company shall take all actions necessary to provide that, upon his appointment to the Board, FH is included as a “Class III” director as such term is used in the Certificate.
(c) PV shall have the right to designate, subject to Section 1.1(b), any replacement for the Investor Designee, who shall be a Qualified Director, upon the death, resignation, retirement, disqualification or removal from office of any such Walgreens Investor Designee and the Board shall take all necessary action to appoint such replacement Investor Designee, subject in all cases to (i) compliance with the Certificate, the Bylaws, Applicable Law and applicable stock exchange rules and (ii) the execution, delivery and acceptance of a Resignation Letter to the Company.
(d) For purposes of this Agreement, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as Qualified Director” shall mean a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause director who (i) qualifies as an Independent Director and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor ) is otherwise reasonably acceptable to the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation (as determined by a member majority of the Board pursuant to Section 1.2 or directors not including any Investor Designee); provided, that no Person shall be a Qualified Director if such Person Engages in a Competing Business. Notwithstanding anything to the extent necessary contrary, (x) if at any time an Investor Designee Engages in a Competing Business, then the conditions set forth in such Investor Designee’s Resignation Letter shall be satisfied (and the Board shall be entitled (but not required) to remedy a breach of Section 1.5.
accept such Investor Designee’s resignation (f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as suchand, for the matters covered avoidance of doubt, such Investor Designee’s resignation shall not be effective until accepted by such indemnification obligationsthe Board)), and (y) if at any time from and after the Effective Time, PV or any of its Affiliates Engages in a Competing Business, then, PV shall no longer have the right to designate an Investor Designee (provided, however, that nothing in this Agreement shall be deemed to prohibit PV from seeking a waiver from the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany with respect to this subclause (y), and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify which waiver may be given or advance expenses to such Walgreens Director shall be secondary to withheld at the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”sole discretion), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 2 contracts
Samples: Shareholder Agreement (Yum China Holdings, Inc.), Shareholder Agreement (Yum Brands Inc)
Composition of the Board of Directors. (a) Upon Promptly ------------------------------------- upon the occurrence acceptance for payment of, and payment by Sub for, Shares equal to at least a majority of a Walgreens Investor Rights Initiation Eventthe outstanding shares of Common Stock pursuant to the terms of the Offer, the Company’s board Sub shall be entitled to designate up to such number of directors ("Parent Designees") on the “Board”Board of Directors of the Company, rounded up to the ---------------- next whole number, as will give Sub, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock beneficially owned by Sub and Parent and the denominator of which shall be the number of shares of Common Stock then issued and outstanding, and the Company shall, at such time, use commercially reasonable efforts to take any and all such action necessary to cause one (1) Walgreens Designee Parent Designees to be appointed to the Board.
Board of Directors of the Company (b) Upon including using its commercially reasonable efforts to cause relevant directors to resign and/or increasing the occurrence size of a Walgreens Investor Rights Stepthe Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-Up Eventlaws)). Subject to applicable law, the Board Company shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents required pursuant to Section 14(f) of the Company, if necessary) Exchange Act and Rule 14f-1 promulgated thereunder to cause one (1) additional Walgreens Designee to be appointed to effect the Board, election of such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1Parent Designees, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during mailing to its stockholders the Walgreens Enhanced Investor Rights Period, two (2information required by Section 14(f) Walgreens Designees of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time including such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) Schedule 14D-9 filed with the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA Commission and distributed to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, andand the Company agrees to make such mailing so long as Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees. Parent and Sub shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. At the Effective Time, the Company, if so requested, shall use its reasonable best efforts to cause Persons designated by Sub to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each material Subsidiary and each committee of each such Board of Directors (in each case to the extent of clause the Company's ability to elect such Persons).
(ib) The provisions of Section 2.3(a) are in addition to and clause shall not limit any rights which Parent, Sub or any of their respective Affiliates may have as a holder or beneficial owner of Common Stock as a matter of applicable law with respect to the election of directors or otherwise.
(iic) Notwithstanding the provisions of this Section 2.3, the parties hereto shall use their respective commercially reasonable efforts to ensure that at least three (3) of the members of the Board of Directors shall, at all times prior to the Effective Time, be Persons who are directors of the Company on the date hereof (the "Continuing Directors"), provided that, if there shall be in -------------------- -------- office less than three (3) Continuing Directors, the Board of Directors may cause the Person designated by the remaining Continuing Director or Continuing Directors to fill such individual vacancy and such Person shall then be deemed to be a Walgreens Continuing Director for all purposes hereunder. Neither of this Agreement, or if no Continuing Directors then remain, the other directors of the Company nor then in office shall designate three (3) Persons to fill such vacancies who will not be officers, employees or Affiliates of the Board will Company or Parent and such Persons shall be deemed to be Continuing Directors for all purposes of this Agreement; provided, -------- further, that Parent, Sub and the Parent Designees shall take no action prior to ------- the Effective Time to remove any Walgreens Director without Continuing Director. Following the election or appointment of Sub's designees pursuant to this Section 2.3 and prior written consent to the Effective Time, any amendment or modification of WBAthis Agreement, unless such Walgreens Director is no longer eligible for designation as a member the Company's Certificate of Incorporation or the Company's By-laws, any termination of this Agreement by the Company, any extension by the Company of the Board pursuant to Section 1.2 or to time for the extent necessary to remedy a breach performance of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member any of the Board) with the same rights to indemnification obligations or other acts of Parent and exculpation that it provides to the other members Sub or waiver of any of the Board. The Company's rights hereunder, and any other consent or action by the Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligationshereunder, shall be effected only if there are in office one or more Continuing Directors and such action is approved by a majority of the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsContinuing Directors.
Appears in 2 contracts
Samples: Merger Agreement (Royal Ahold), Merger Agreement (Us Foodservice/Md/)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Sub in accordance with the Offer for, shares of Common Stock equal to at least two-thirds of the outstanding shares of Common Stock, pursuant to the Offer, Sub shall be entitled to designate up to such number of directors on the Board of Directors of the Company, rounded up to the next whole number, as will give Sub, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on such Board of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors elected pursuant to this sentence) multiplied by a Walgreens Investor Rights Initiation Eventfraction, the Company’s board numerator of directors (which shall be the “Board”) took number of shares of Common Stock beneficially owned by Sub and Parent and the denominator of which shall be the number of shares of Common Stock then outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary needed to cause one (1) Walgreens Designee Sub's designees to be appointed to the Board.
Company's Board of Directors (b) Upon the occurrence of a Walgreens Investor Rights Step-Up Eventincluding using its reasonable best efforts to cause directors to resign). Subject to applicable law, the Board Company shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action requested by Parent which is reasonably necessary (to effect any such election, including mailing to its shareholders the Information Statement containing the information required by amending Section 14(f) of the organizational documents Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees. Parent or Sub will be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company will increase the size of the Company, if necessary) to cause one 's Board of Directors (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions limitations set forth in the Company's Restated and Amended Certificate of this Section 1.1, including Section 1.1(dIncorporation and By-Laws), and Section 1.2or use its reasonable efforts to secure the resignation of directors, at each annual or special meeting of the stockholders of the Company at which directors are both, as is necessary to permit Sub's designees to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.'s
Appears in 2 contracts
Samples: Merger Agreement (Raymond Corp), Merger Agreement (Lift Acquisition Co Inc)
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens Investor Rights Initiation Event, the Company’s board The number of directors (comprising the “Board”) took Board of Directors immediately after the action necessary Effective Time shall be increased to cause one (1) Walgreens Designee to be appointed to the Boardtwelve.
(b) Upon Immediately after the occurrence Effective Time, the Company shall cause to be appointed to its Board of Directors two individuals to be designated by BMS prior to the Effective Time, which individuals shall serve as BMS Directors in accordance with the terms of this Section 2.01; PROVIDED that (i) if immediately after the Effective Time, BMS has the right to nominate only one BMS Director pursuant to this Section 2.01, the Company shall cause one individual designated by BMS to be appointed to its Board of Directors, and such individual shall serve as a Walgreens Investor Rights Step-Up EventBMS Director in accordance with the terms of this Section 2.01, and (ii) if immediately after the Effective Time, BMS has no right to designate a BMS Director pursuant to this Section 2.01, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) not be required to cause one (1) additional Walgreens Designee to be appointed the appointment of any individual to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject as a BMS Director. Subject to the other provisions of this Section 1.12.01, including such BMS Directors shall remain in office until the next election of directors (or any earlier termination, resignation or removal). Following the Effective Time, all Directors in office immediately prior to the Effective Time shall remain in office until the next election of directors (or any earlier termination, resignation or removal).
(c) Except as otherwise provided herein, at all times from and after the Effective Time, but subject to Section 1.1(d2.01(d), and Section 1.2, BMS shall have the right to designate two BMS Directors for election at each annual or special meeting of the stockholders Company's stockholders. Any individual designated by BMS to serve as a BMS Director pursuant to this Section 2.01 shall be a senior officer or director of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which BMS. Each individual so designated shall, subject to Applicable Lawapplicable law, include including in any proxy statement used be recommended by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the for election to the Board of a slate of directors that includes (i) during by the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens DesigneeCompany's stockholders.
(d) WBA shall notify At all times from and after the Effective Time, if the Board is comprised of twelve members, BMS will have the right to have the Company nominate two BMS Directors; PROVIDED that if at any time BMS' Common Stock Interest is less than 12.5% for a period of forty-five consecutive calendar days, thereafter BMS will only have the right to have the Company nominate one BMS Director until such time as BMS' Common Stock Interest is 12.5% or greater. In the event that the number of Directors is increased from twelve during any period in which BMS has the right to have the Company nominate at least one BMS Director pursuant to this Section 2.01, BMS shall be entitled to designate a number of BMS Directors equal to (i) the lesser of (A) BMS' Common Stock Interest or (B) the Standstill Interest, multiplied by (ii) the total number of Directors (rounded down to next lowest whole number in the case of fractions less than .5 and rounded up to the next highest whole number in the case of fractions of .5 or greater). Notwithstanding the foregoing, if the Company has terminated the Commercial Arrangements pursuant to Section 13.2 of the identity Commercial Arrangements, BMS shall have no right to have the Company nominate a BMS Director, regardless of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board)BMS' Common Stock Interest.
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurredapplicable law, in the event that at any time after the Effective Time, the number of BMS Directors differs from the number of Directors that BMS has the right to designate pursuant to this Section 2.01, (i) if the deathnumber of BMS Directors exceeds such number, disabilityBMS shall promptly cause to resign, and take all other action reasonably necessary to cause the prompt removal or resignation of, that number of a Walgreens Director, BMS Directors as required to make the Board will promptly appoint as a replacement Walgreens Director remaining number of BMS Directors conform to the Walgreens Designee designated by WBA number of BMS Directors that BMS has the right to fill the resulting vacancy, or nominate pursuant to this Section 2.01 and (ii) if the failure number of a Walgreens Designee BMS Directors is less than such number, the Company shall promptly take all necessary action to be elected to create sufficient vacancies on the Board at any annual or special meeting of Directors to permit BMS to designate the full number of BMS Directors which it is entitled to designate pursuant to this Section 2.01 (such action to include expanding the size of the stockholders Board of Directors or seeking the resignation or removal of Directors). The Company at which such Walgreens Designee stood shall have the right to designate replacement Directors for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve BMS Directors removed in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of accordance with clause (i) of the preceding sentence and upon the creation of any vacancy pursuant to clause (ii)) of the preceding sentence BMS shall designate the person to fill such vacancy in accordance with this Section 2.01 and, such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor subject to applicable law, the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5Directors shall appoint each person so designated.
(f) The Company will BMS shall have the right to designate any replacement for a BMS Director designated in accordance with this Section 2.01 by BMS at all times provide the termination of such Director's term or upon death, resignation, retirement, disqualification, removal from office or other cause. Subject to applicable law, the Board of Directors shall appoint each Walgreens Director person so designated.
(g) Notwithstanding anything in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides this Agreement to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountscontrary, the “Unpaid Indemnitee Amounts”provisions of Sections 2.01(a), (b), (c), (d) and any Investor Indemnitor makes any payment to such Walgreens Director in respect (f) shall terminate immediately and have no further force or effect upon the occurrence of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsa BMS Dilution Event.
Appears in 2 contracts
Samples: Stockholder Agreement (Imclone Systems Inc/De), Stockholder Agreement (Bristol Myers Squibb Co)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of Shares equal to at least a Walgreens Investor Rights Initiation Eventmajority of the outstanding shares of Common Stock pursuant to the terms of the Offer, the Company’s board Acquisition shall be entitled to designate up to such number of directors ("Buyer Designees") on the “Board”Board of Directors of the Company, rounded up to the next whole number, as shall give Acquisition, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Shares beneficially owned by Acquisition and Buyer and the denominator of which shall be the number of Shares then issued and outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary to cause one (1) Walgreens Designee Buyer Designees to be appointed to the Board.
Board of Directors of the Company in such class of directors (bif any) Upon as shall ensure the occurrence longest possible term for such Buyer Designees (including using commercially reasonable efforts to cause relevant directors to resign and/or increasing the size of a Walgreens Investor Rights Step-Up Event, the Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-laws)). The Company shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents required pursuant to Section 14(f) of the Company, if necessary) Exchange Act and Rule 14f-1 promulgated thereunder to cause one (1) additional Walgreens Designee to be appointed to effect the Board, election of such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1Buyer Designees, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during mailing to its stockholders the Walgreens Enhanced Investor Rights Period, two (2information required by Section 14(f) Walgreens Designees of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time including such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) Schedule 14D-9 filed with the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA Commission and distributed to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, andand the Company agrees to make such mailing so long as Acquisition shall have provided to the Company, on a timely basis, all information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Buyer Designees. Buyer and Acquisition shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. At the Effective Time, the Company, if so requested by Buyer, shall use its commercially reasonable efforts to cause Persons designated by Buyer to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary and each committee of each such Board of Directors (in each case to the extent of clause the Company's ability to elect such Persons).
(ib) The provisions of Section 2.3(a) are in addition to, and clause shall not limit, any rights which Buyer, Acquisition or any of their respective Affiliates may have as holders or beneficial owners of Shares as a matter of applicable law with respect to the election of directors or otherwise.
(iic) Notwithstanding the provisions of this Section 2.3, the parties hereto shall use their respective commercially reasonable efforts to ensure that at least two (2) of the members of the Board of Directors shall, at all times prior to the Effective Time, be Persons who are directors of the Company on the date hereof (the "Continuing Directors"); provided that, if there shall be in office less than two (2) Continuing Directors, the Board of Directors may cause the Person designated by the remaining Continuing Director or Continuing Directors to fill such individual vacancy, and such Person shall then be deemed to be a Walgreens Continuing Director for all purposes hereunder. Neither of this Agreement, or if no Continuing Directors then remain, the other directors of the Company nor the Board then in office shall designate two (2) Persons to fill such vacancies who will remove any Walgreens Director without the prior written consent of WBAnot be officers, unless such Walgreens Director is no longer eligible for designation as a member employees or Affiliates of the Board Company or Buyer, and such Persons shall be deemed to be Continuing Directors for all purposes of this Agreement. Following the election or appointment of the Buyer Designees pursuant to this Section 1.2 or 2.3 and prior to the extent necessary to remedy a breach Effective Time, any amendment of Section 1.5.
(f) The this Agreement, the Company's Certificate of Incorporation or the Company's By-laws, any termination of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Buyer and agrees that Acquisition or waiver of any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany's rights hereunder, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify other consent or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced action by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify hereunder, shall require the concurrence of a majority of the Continuing Directors, if there are more than two (2) Continuing Directors, or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement the concurrence of one (such unpaid amounts1) Continuing Director, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsif there are two (2) Continuing Directors.
Appears in 1 contract
Samples: Merger Agreement (T Netix Inc)
Composition of the Board of Directors. (a) Upon Subject to the occurrence other provisions of a Walgreens Investor Rights Initiation Eventthis Section 2.1, (i) for so long as the Investors Beneficially Own any of the then-issued and outstanding Company Ordinary Shares, the Company’s board Parent shall have the right to designate one (1) Shareholder Designee, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; and (ii) for so long as the Investors Beneficially Own (collectively) at least ten percent (10%) of the then-issued and outstanding Company Ordinary Shares, the Parent shall have the right to designate two (2) Shareholder Designees, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; provided that no other Person shall have the exercisable right to designate more directors to the Board than the Parent as a result of any agreement between the Company and such Person. The Company shall take all necessary actions to give effect to this Section 2.1(a), including, if necessary adjusting the size of the Board and/or seeking and accepting the resignations of incumbent directors.
(b) Unless waived by the “Board”Parent or restricted by Law, during the Board Seat Period, (i) took the action necessary to Company shall cause one (1) Walgreens Designee Shareholder Director to be appointed to the Board.
(b) Upon the occurrence Nomination and Compensation Committee of a Walgreens Investor Rights Step-Up Event, the Board and (ii) the other Shareholder Director (or, if there is only one Shareholder Director, such Shareholder Director) shall promptly (and in upon request of Parent or such Shareholder Director) be permitted to attend any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents meeting of each other committee of the Company, if necessaryBoard in an observer (non-voting) capacity and to cause one (1) additional Walgreens Designee to be appointed receive all materials provided to the Board, members of each such that the Board shall have two (2) Walgreens Directorscommittee when provided to such members.
(c) During the Walgreens Investor Rights Board Seat Period, subject the Company shall procure that the appointment of the relevant number of Shareholder Designees to the other provisions of this Board that Parent is entitled to designate pursuant to Section 1.1, including Section 1.1(d), 2.1(a) is proposed and Section 1.2, recommended for approval by the Company’s shareholders at each the next annual or special general meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in following any proxy statement used designation by the Company to solicit the vote Parent of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Shareholder Designee.
(d) WBA If any Shareholder Designee is not appointed to the Board at any annual general meeting of the Company during the Board Seat Period (including if a Shareholder Designee was designated by the Parent and appointed prior to and effective as of the Completion (as defined in the Transaction Agreement), but is unable to serve or has resigned as a Shareholder Director as of the Completion, or any Shareholder Designee has not been elected prior to the Completion) the Parent may designate a replacement (or initial, as applicable) Shareholder Designee for appointment to the Board. The Company shall (i) appoint such replacement Shareholder Designee to the Board in accordance with clause (e) and (ii) propose and recommend the appointment of such replacement Shareholder Designee at an extraordinary general meeting of the Company to be held not later than sixty (60) days after any such annual general meeting.
(e) Notwithstanding anything in this Section 2.1 to the contrary, in the event that at any time (i) Parent has the right to nominate a Shareholder Designee and (ii) a Shareholder Designee is not yet appointed or a Shareholder Designee shall cease to serve as a director for any reason, upon written notice from Parent to the Company, the vacancy resulting therefrom shall be filled by the Board as promptly as reasonably practicable with a substitute Shareholder Designee until the Shareholder Designee is formally appointed at the relevant next general shareholder meeting.
(f) The Parent shall have the right to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place. If the Parent wishes to remove a Shareholder Director and designate another Shareholder Designee in his or her place pursuant to this Section 2.1, the Company shall, upon written notice from the Parent to the Company, (i) fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with clause (e) and (ii) propose and recommend the appointment of such replacement Shareholder Designee at the next general meeting of the Company following any such designation.
(g) The Parent shall notify the Company of the identity of any proposed Walgreens Designee, Shareholder Designee in writing, on at or before the time such information is reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company for inclusion in any materials to be provided to shareholders of the Company in connection with a proxy statement for a general meeting of stockholdersthe Company, together with all information about such proposed Walgreens Shareholder Designee as shall be reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company (including, at a minimum, any information regarding such proposed Walgreens Shareholder Designee to the extent required by applicable securities laws or for any other person nominated for election to the BoardLaw).
(eh) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurredDuring the Board Seat Period, in the event of (i) the death, disability, removal or resignation of a Walgreens Shareholder Director, the Board will promptly appoint as Parent may propose a replacement Walgreens Director Shareholder Designee for appointment to the Walgreens Designee designated by WBA Board and the Company shall upon written notice from the Parent to the Company, (i) fill the vacancy resulting vacancy, or from such removal with such replacement Shareholder Designee in accordance with clause (e) and (ii) propose and recommend the failure appointment of a Walgreens such replacement Shareholder Designee to be elected to at the Board at any annual or special next general meeting of the stockholders of the Company at which following any such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5designation.
(fi) The Company will at all times provide each Walgreens Shareholder Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation insurance that it provides to the other members of the Board and shall procure that the agenda for each annual general meeting of the Company during the Board Seat Period and the first annual general meeting following the termination of the Board Seat Period includes a resolution discharging all directors of the Board. , including any Shareholder Directors, in respect of their management during the prior fiscal year.
(j) During any period between (A) the designation of a Shareholder Designee and the appointment of such Shareholder Designee to the Board or (B) the death, disability, removal or resignation of a Shareholder Director and the appointment of any replacement Shareholder Designee to the Board, such Shareholder Designee shall be entitled to attend meetings of the Board in the capacity of an observer with the right to speak and participate in discussions of the Board, but without any voting rights, and the Company shall provide such Shareholder Designee with written notice of all Board meetings and all Board papers on the same basis as notices and Board documents are provided to the directors of the Company.
(k) The Parent and the Shareholder acknowledge that the Company acknowledges will require, prior to his or her nomination:
(i) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other non-executive directors of the Company, to be bound by and agrees that any such indemnification obligations duly comply with applicable Law, the Articles of Association, the rules and practices applicable to indemnify the Board and its committees and the corporate governance principles applied by the Company;
(ii) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other members of the Board, to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses to each Walgreens Director, she becomes aware in his or her capacity as sucha member of the Board;
(iii) each Shareholder Designee to be appointed to the Board to agree in writing to recuse himself or herself from any deliberations or discussions of the Board or any committee of the Board regarding the Transaction Agreement, the transactions contemplated thereby and any matter related thereto;
(iv) each Shareholder Designee to be appointed to the Board to agree in writing to (x) resign from the Board effective immediately upon the termination of the Board Seat Period and (y) if requested by the Parent or the Shareholder (including, for the matters covered by such indemnification obligationsavoidance of doubt, shall be pursuant to Section 2.4), resign from the primary source Board to the extent that a Shareholder Designee is required to resign in order to (A) result in the requisite number of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation Shareholder Designees serving on the part Board as set forth in Section 2.1(a) or (B) satisfy the requirements of any Investor Indemnitor under any Investor Indemnification Agreement Section 2.2; and
(v) each Shareholder Designee that acts as an observer to indemnify agree in writing to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses she becomes aware in his or her capacity as an observer. The Parent and the Shareholder shall cause each Shareholder Designee and each Shareholder Director to such Walgreens comply with all of the agreements referenced in the foregoing clauses (i)-(v).
(l) Notwithstanding anything to the contrary herein, during the Board Seat Period, each Shareholder Director shall be secondary entitled to attend meetings of the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsShareholder.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Amazon Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten fifteen (1015) Business Days) after receiving a Walgreens an Amazon Investor Rights Step-Up Initiation Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Amazon Designee to be appointed to the Board. For the avoidance of doubt, the Amazon Investor Rights Initiation Event Notice shall be delivered in Amazon’s sole discretion, and nothing herein obligates Amazon to deliver such that the Board shall have two (2) Walgreens Directorsnotice.
(cb) During the Walgreens Amazon Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d1.1(c), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will shall nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate SV:315627.6 1001640689v15 of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Amazon Designee.
(dc) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the The Board or the Nominating and Governance and Nominating Committee shall notify Amazon at least sixty (60) days prior to the time the Company requires information with respect to any proposed Amazon Designee for inclusion in a proxy statement for a meeting of stockholders. At least thirty (30) days prior to such time, together with Amazon shall (i) notify the Company of the identity of any proposed Amazon Designee, in writing; (ii) furnish all information about such proposed Walgreens Amazon Designee as shall be reasonably requested by the Board or the Nominating and Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Amazon Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board); and (iii) use reasonable best efforts to cause the Amazon Designee to (x) meet with the Board and Nominating and Governance Committee (to the extent requested by the Board or the Nominating and Governance Committee), and (y) provide the Board or the Nominating and Governance Committee with a completed director and officer questionnaire in the form reasonably requested by the Board or Nominating and Governance Committee.
(ed) Subject to Section 1.1(d1.1(c) and Section 1.2, so long as no Walgreens Amazon Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens an Amazon Director, the Board will shall promptly appoint as a replacement Walgreens Amazon Director the Walgreens Amazon Designee designated by WBA Amazon to fill the resulting vacancy, or (ii) the failure of a Walgreens an Amazon Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Amazon Designee stood for election but was nevertheless not elected (such Walgreens Amazon Designee, a an “Walgreens Amazon Specified Designee”), the Board will shall promptly appoint another Walgreens Amazon Designee designated by WBA Amazon to serve in lieu of such Walgreens Amazon Specified Designee as a Walgreens an Amazon Director during the term that such Walgreens Amazon Specified Designee would have served had such Walgreens Amazon Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens an Amazon Director for all purposes hereunder. Neither the Company nor the Board will shall remove any Walgreens Amazon Director without the prior written consent of WBAAmazon, unless such Walgreens Amazon Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or if to the extent necessary to remedy a breach of Section 1.5.
(fe) The Company will shall at all times provide each Walgreens Amazon Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Amazon Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of SV:315627.6 1001640689v15 indemnification and advancement of such Walgreens Amazon Director in connection therewith, and any obligation on the part of any Investor Amazon Indemnitor under any Investor Amazon Indemnification Agreement to indemnify or advance expenses to such Walgreens Amazon Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Amazon Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens such Amazon Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Amazon Indemnitor makes any payment to such Walgreens Amazon Director in respect of indemnification or advancement of expenses under any Investor Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Amazon Indemnitor shall be subrogated to the rights of such Walgreens Amazon Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Samples: Stockholders Agreement (Air Transport Services Group, Inc.)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Sub for, Ordinary Shares pursuant to the Offer, Sub shall be entitled to designate, subject to Section 2.3(c) of a Walgreens Investor Rights Initiation Eventthis Agreement, the Company’s board up to such number of directors ("Parent Designees") on the “Board”Board of Directors of the Company, rounded up to the next whole number, as shall give Sub, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of votes represented by the Ordinary Shares (determined on an as-converted basis assuming that all then-outstanding Preferred Shares owned by Parent and Sub are converted into Ordinary Shares) beneficially owned by Sub and Parent and the denominator of which shall be the aggregate number of votes represented by the Ordinary Shares (determined on an as-converted basis assuming that all then-outstanding Preferred Shares are converted into Ordinary Shares) then issued and outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary to cause one (1) Walgreens Designee Parent Designees to be appointed to the BoardBoard of Directors of the Company in such class of directors (if any) as shall ensure the longest possible term for such Parent Designees (including using commercially reasonable efforts to cause relevant directors to resign and/or increasing the size of the Board of Directors of the Company (subject to the limitations set forth in the Company's Memorandum of Association and the Company's Articles of Association)). The Company shall take all action required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1, promulgated thereunder, to effect the election of such Parent Designees, including (i) mailing to its shareholders the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) including such information in the Schedule 14D-9 filed with the Commission and distributed to the shareholders of the Company, and the Company agrees to make such mailing so long as Sub shall have provided to the Company, on a timely basis, all information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Parent Designees. Parent and Sub shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. Upon acceptance for payment of Ordinary Shares pursuant to the Offer (the date Ordinary Shares are first accepted for payment, the "Acceptance Date"), the Company, if so requested, shall use its commercially reasonable efforts to cause Persons designated by Parent to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary and each committee of each such Board of Directors (in each case to the extent of the Company's ability to elect such Persons) as the percentage of the full Board of Directors of the Company that the Parent Designees constitutes.
(b) Upon the occurrence The provisions of Section 2.3(a) are in addition to, and shall not limit any, rights which Parent, Sub or any of their respective Affiliates may have as holders or beneficial owners of Shares as a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents matter of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed applicable law with respect to the Board, such that the Board shall have two (2) Walgreens Directorselection of directors or otherwise.
(c) During the Walgreens Investor Rights Period, subject to Notwithstanding the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board2.3, the Company will nominate and parties hereto shall use its their respective commercially reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board ensure that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, at least two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity members of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (includingDirectors shall, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of all times prior to: (i) the death, disability, removal if Parent or resignation Sub requests a Scheme of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board Arrangement pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f3.1(a) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountshereof, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment earlier to such Walgreens Director in respect occur of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to (A) the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.Scheme
Appears in 1 contract
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Amazon Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens an Amazon Investor Rights Step-Up Initiation Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Amazon Designee to be appointed to the Board. For the avoidance of doubt, the Amazon Investor Rights Initiation Event Notice shall be delivered in Amazon’s sole discretion, and nothing herein obligates Amazon to deliver such that notice or to have any Amazon Designee appointed to the Board shall have two (2) Walgreens DirectorsBoard.
(cb) During the Walgreens Amazon Investor Rights Period, provided that Amazon has delivered the Amazon Investor Rights Initiation Event Notice in accordance with Section 1.1(a) above, and subject to the other provisions of this Section 1.1, including Section 1.1(d1.1(c), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will shall nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Amazon Designee.
(dc) WBA Amazon shall notify the Company of the identity of any proposed Walgreens Amazon Designee, in writing, on at or before the time such information is reasonably requested by the Board or the Nominating and Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with and shall furnish all information about such proposed Walgreens Amazon Designee as shall be reasonably requested by the Board or the Nominating and Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Amazon Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(ed) Subject to Section 1.1(d1.1(c) and Section 1.2, so long as no Walgreens Amazon Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens an Amazon Director, the Board will shall promptly appoint as a replacement Walgreens Amazon Director the Walgreens Amazon Designee designated by WBA Amazon to fill the resulting vacancy, or (ii) the failure of a Walgreens an Amazon Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Amazon Designee stood for election but was nevertheless not elected (such Walgreens Amazon Designee, a an “Walgreens Amazon Specified Designee”), the Board will shall promptly appoint another Walgreens Amazon Designee designated by WBA Amazon to serve in lieu of such Walgreens Amazon Specified Designee as a Walgreens an Amazon Director during the term that such Walgreens Amazon Specified Designee would have served had such Walgreens Amazon Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens an Amazon Director for all purposes hereunder. Neither the Company nor the Board will shall remove any Walgreens Amazon Director without the prior written consent of WBAAmazon, unless (A) such Walgreens Amazon Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or 1.2, (B) to the extent necessary to remedy a breach of Section 1.51.5 or (C) as a result of the acceptance of such Amazon Director’s resignation tendered in accordance with the Company’s bylaws and corporate governance guidelines requiring the resignation of a director upon the failure to obtain the requisite majority vote for such director’s election to the Board pursuant to the Company’s bylaws.
(fe) The Company will shall at all times provide each Walgreens Amazon Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Amazon Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Amazon Director in connection therewith, and any obligation on the part of any Investor Amazon Indemnitor under any Investor Amazon Indemnification Agreement to indemnify or advance expenses to such Walgreens Amazon Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Amazon Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens such Amazon Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Amazon Indemnitor makes any payment to such Walgreens Amazon Director in respect of indemnification or advancement of expenses under any Investor Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Amazon Indemnitor shall be subrogated to the rights of such Walgreens Amazon Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Samples: Shareholder Agreement (Atlas Air Worldwide Holdings Inc)
Composition of the Board of Directors. (a) Upon The Board of Directors shall consist of seven Directors, of whom:
(i) (A) two shall be designated by the occurrence Goldentree Stockholders for so long as the Party Ownership Percentage of the Goldentree Stockholders is at least 20% (each, a Walgreens Investor Rights Initiation Event“Goldentree Director”); provided that for so long as the Party Ownership Percentage of the Goldentree Stockholders is less than 20% (but is at least 10%), then the Company’s board Goldentree Stockholders shall only be entitled to designate one Goldentree Director to the Board of directors Directors;
(ii) one shall be designated by the Monarch Stockholders for so long as the Party Ownership Percentage of Monarch is at least 10% (the “BoardMonarch Director”);
(iii) took one shall be the action necessary to cause one Chief Executive Officer of the Corporation at the relevant time; and
(1iv) Walgreens Designee to three shall be appointed to elected by stockholders of the BoardCorporation in accordance with the Charter and Bylaws (the “Majority Directors”).
(b) Upon Should the occurrence Party Ownership Percentage of a Walgreens Investor Rights Step-Up Eventthe Goldentree Stockholders cease to be at least 20% (but is at least 10%), the Board Goldentree Stockholders shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action actions necessary (including by amending the organizational documents of the Company, if necessary) or appropriate to cause one (1) additional Walgreens Designee Goldentree Director to immediately resign. Should the Party Ownership Percentage of the Goldentree Stockholders cease to be appointed at least 10%, the Goldentree Stockholders shall take all actions necessary or appropriate to cause the Boardremaining Goldentree Director to immediately resign. Should the Party Ownership Percentage of the Monarch Stockholders cease to be at least 10%, the Monarch Stockholders shall take all actions necessary or appropriate to cause the Monarch Director to immediately resign. For the avoidance of doubt, once the Goldentree Stockholders or the Monarch Stockholders cease to meet any Party Ownership Percentage specified above, the Goldentree Stockholders or the Monarch Stockholders, as applicable, shall permanently lose any rights pursuant to this Article 2 associated with the applicable Party Ownership Percentage and shall not be entitled to regain such that rights if the Board shall have two (2) Walgreens DirectorsGoldentree Stockholders or the Monarch Stockholders, as applicable, later meet or exceed such Party Ownership Percentage.
(c) During the Walgreens Investor Rights Period, subject Should any Director be required to resign pursuant to the other provisions of this preceding Section 1.1, including Section 1.1(d2.01(b), the number of Majority Directors at such time shall automatically be increased by one, and the vacancy shall be filled in accordance with the procedures for filling a Majority Director vacancy set forth in Section 1.2, at each 2.03(a)(ii) who shall then serve as a Director until the next annual or special meeting election of Directors by the stockholders of the Company at which directors are to be elected to Corporation in accordance with the Board, Charter and the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens DesigneeBylaws.
(d) WBA shall notify the Company As of the identity effective date of any proposed Walgreens Designeethis Agreement, in writing, on or before one Goldentree Director shall be Xxxxxx X. Xxxxxx and the time such information is reasonably requested remaining Goldentree Director shall be designated by the Board or Goldentree Stockholders following the Governance and Nominating Committee for inclusion in a proxy statement for a meeting effective date of stockholdersthis Agreement, together with all information about such proposed Walgreens Designee as the Monarch Director shall be reasonably requested by Xxxxxx Xxxxxxxxxx, the Board or Majority Directors shall be Xxxxxxx (Xxx) X. Xxxxxxx, Xxxxxxx Xxxxxxx and Xxxxxxx X. XxXxxxxx and the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to Chief Executive Officer of the extent required by applicable securities laws or for any other person nominated for election to the Board)Corporation is Xxxxx Xxxxxx.
(e) Subject Each Stockholder agrees that, if at any time it is then entitled to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in vote for the event election of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected directors to the Board at any annual of Directors, it shall vote all of its shares of Common Stock or execute proxies or written consents, as the case may be, and take all other necessary action (including causing the Corporation to call a special meeting of Stockholders) in order to ensure that the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member composition of the Board pursuant to of Directors is as set forth in this Section 1.2 or to the extent necessary to remedy a breach of Section 1.52.01.
(f) (i) The Company will at all times provide each Walgreens Goldentree Stockholders may: (A) transfer the right to appoint two Goldentree Directors (to the extent the Goldentree Stockholders are then entitled to appoint two Goldentree Directors) to any Person (together with its Related Persons) acquiring shares of Common Stock (through one or more transactions) from the Goldentree Stockholders constituting a Party Ownership Percentage of 20% or more, (B) transfer the right to appoint one Goldentree Director (to the extent the Goldentree Stockholders are then entitled to appoint one Goldentree Director but not two Goldentree Directors) to any Person (together with its Related Persons) acquiring shares of Common Stock (through one or more transactions) from the Goldentree Stockholders constituting a Party Ownership Percentage of 10% or more but less than 20%, and (ii) the Monarch Stockholders may transfer the right to appoint the Monarch Director (to the extent the Monarch Stockholders are then entitled to appoint the Monarch Director) to any Person (together with its Related Persons) acquiring shares of Common Stock (through one or more transactions) from the Monarch Stockholders constituting a Party Ownership Percentage of 10% or more (in his or her capacity as the case of clauses (i) and (ii), a member “Transferred Director Right”); provided that, upon the effectiveness of any Transferred Director Right, all rights, limitations and obligations of the Board) with Goldentree Stockholders and the same rights to indemnification and exculpation that it provides Monarch Stockholders, as applicable, in this Agreement relating to the other members Goldentree Directors and/or the Monarch Director, as applicable (including the right of the Board. The Company acknowledges Goldentree Stockholders and agrees that any the Monarch Stockholders to appoint or remove such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligationsDirector(s)), shall be deemed to apply to the primary source Person acquiring the Transferred Director Right (each a “Director Recipient”); provided further that (x) no Transferred Director Right will be effective until (i) the transferring party(s) has or have provided the Corporation with written notice of indemnification and advancement the transfer, (ii) the Director Recipient has provided the Corporation with reasonably satisfactory evidence of such Walgreens Person’s (and its Related Persons’) share ownership and (iii) the Director in connection therewith, Recipient has delivered a properly executed Joinder to this Agreement pursuant to Section 4.01 and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary (y) notwithstanding anything to the Company’s obligation and shall be reduced by any amount that such Walgreens contrary in this Section 2.01(f), the right to appoint the Goldentree Directors or the Monarch Director may collect as indemnification or advancement from not be transferred to a Competitor. Any Director Recipient shall have the Company. In the event that the Company fails right to indemnify or advance expenses to each Walgreens further transfer its Transferred Director as required by such indemnification obligations and this Agreement (such unpaid amountsRight, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated subject to the rights of such Walgreens Director under this Agreement conditions set forth in respect of such Unpaid Indemnitee Amountsthe preceding sentence.
Appears in 1 contract
Samples: Stockholders Agreement (Superior Energy Services Inc)
Composition of the Board of Directors. (a) Upon Promptly ------------------------------------- upon the occurrence acceptance for payment of, and payment by Sub for, Offer Securities equal to at least a majority of a Walgreens Investor Rights Initiation Eventthe Common Stock Equivalents, the Company’s board Sub shall be entitled to designate up to such number of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, on the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of Directors of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed rounded up to the Boardnext whole number, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Periodas will give Sub, subject to the other provisions of this compliance with Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting 14(f) of the stockholders Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors are to be elected on the Board of Directors of the Company (giving effect to the Boarddirectors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Common Stock Equivalents represented by Offer Securities beneficially owned by Sub and Parent and the denominator of which shall be the number of Common Stock Equivalents represented by Offer Securities then outstanding. Subject to applicable law, the Company will nominate shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees. Parent and Sub shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company shall increase the size of the Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-Laws), or use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by secure the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate resignation of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwiseboth, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information as is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee necessary to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee permit Sub's designees to be elected to the Board at any annual or special meeting of Directors of the stockholders of Company; provided, however, in the Company at which such Walgreens Designee stood for election but was nevertheless not event that Sub's designees -------- ------- are elected (such Walgreens Designee, a “Walgreens Specified Designee”), or appointed to the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders Directors of the Company, anduntil the Effective Time, the Board of Directors of the Company shall have at least one director who is a director on the date hereof and who is not an Affiliate or associate of Parent or Sub or any other Person who beneficially owns Offer Securities representing 5% or more of the Common Stock Equivalents, or is designated by a majority of the directors of the Company who are such directors (each, an "Independent Director"). At the Effective Time, the Company, upon the -------------------- request of Parent or Sub, shall use its reasonable best efforts to cause Persons designated by Sub to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary and each committee of each such Board of Directors (in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary of the Company's ability to remedy a breach elect such Persons). Promptly upon the exercise by Sub of Section 1.5any of the Warrants, the Company shall issue the relevant number of shares of Common Stock to Sub, all in accordance with the terms of the Common Stock Purchase Warrant Agreement or the Microsoft Warrant Agreement, as the case may be.
(fb) The Following the election or appointment of Sub's designees pursuant to this Section 2.3 and prior to the Effective Time, any amendment or termination of this Agreement, the Company's Certificate of Incorporation or the Company's By-Laws, any termination of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Parent and agrees that Sub or waiver of any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany's rights hereunder, and any obligation on other consent or action by the part Board of any Investor Indemnitor under any Investor Indemnification Directors of the Company hereunder, shall require the concurrence of a majority of the Independent Directors. Notwithstanding anything in this Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In contrary, in the event that Parent's and Sub's designees constitute a majority of the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountsdirectors on the Board of Directors of the Company, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor Independent Directors shall be subrogated entitled, on behalf and at the expense of the Company, to the rights of such Walgreens Director take any action under this Agreement or in respect connection with this Agreement and the transactions contemplated hereby, including taking legal action regarding the enforcement of such Unpaid Indemnitee Amountsthe terms of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Getronics N V)
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Amazon Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board Company shall promptly (and in any case within ten fifteen (1015) Business Days) after receiving a Walgreens an Amazon Investor Rights Step-Up Initiation Event Notice take all action necessary Necessary Action (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Amazon Designee to be appointed to the Board. For the avoidance of doubt, the Amazon Investor Rights Initiation Event Notice shall be delivered in Amazon’s sole discretion, and nothing herein obligates Amazon to deliver such that the Board shall have two (2) Walgreens Directorsnotice.
(cb) During the Walgreens Amazon Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d1.1(c), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will shall nominate and take all Necessary Action and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the Company’s stockholders to be able to vote on the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Amazon Designee.
(dc) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the The Board or the Nominating and Governance and Nominating Committee shall notify Amazon at least sixty (60) days prior to the time the Company requires information with respect to any proposed Amazon Designee for inclusion in a proxy statement for a meeting of stockholders. At least thirty (30) days prior to such time, together with Amazon shall (i) notify the Company of the identity of any proposed Amazon Designee, in writing; (ii) furnish all information about such proposed Walgreens Amazon Designee as shall be reasonably requested by the Board or the Nominating and Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Amazon Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board); and (iii) use reasonable best efforts to cause the Amazon Designee to (x) meet with the Board and Nominating and Governance Committee (to the extent requested by the Board or the Nominating and Governance Committee), and (y) provide the Board or the Nominating and Governance Committee with a completed director and officer questionnaire in the form reasonably requested by the Board or Nominating and Governance Committee.
(ed) Subject to Section 1.1(d1.1(c) and Section 1.2, so long as no Walgreens Amazon Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens an Amazon Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens an Amazon Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Amazon Designee stood for election but was nevertheless not elected (such Walgreens Amazon Designee, a an “Walgreens Amazon Specified Designee”), Amazon shall have the right to designate a director for election to the Board will to fill such vacancy and the Company shall promptly appoint another Walgreens Designee designated by WBA take all Necessary Action to serve cause any vacancy created in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case event of clause (i) and clause or (ii) to be filled by the replacement director designated by Amazon as promptly as practicable after such designation (and in any event at or prior to the next meeting or action of the Board or any committee on which such nominee served), such . Such individual shall then be deemed a Walgreens an Amazon Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(fe) The Company will shall at all times provide each Walgreens Amazon Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, Amazon Director in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Amazon Director in connection therewith, and any obligation on the part of any Investor Amazon Indemnitor under any Investor Amazon Indemnification Agreement to indemnify or advance expenses to such Walgreens Amazon Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Companyobligation. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “If there are Unpaid Indemnitee Amounts”)Amounts with respect to such Amazon Director, and any Investor Amazon Indemnitor makes any payment to such Walgreens Amazon Director in respect of indemnification or advancement of expenses under any Investor Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Amazon Indemnitor shall be subrogated to the rights of such Walgreens Amazon Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Samples: Stockholders Agreement (Air Transport Services Group, Inc.)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Merger Sub in accordance with the Offer for, shares of a Walgreens Investor Rights Initiation EventCompany Common Stock pursuant to the Offer, and from time to time thereafter as shares of Company Common Stock are acquired by Merger Sub, Merger Sub shall be entitled to designate such number of directors, rounded up to the next whole number, but at no time prior to the Effective Time (as hereinafter defined) more than three fewer than the total number of directors on the Board of Directors of the Company’s , equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that such number of shares of Common Stock so accepted for payment and paid for or otherwise acquired or owned by Merger Sub or Parent bears to the number of shares of Company Common Stock outstanding. The Company shall, at such time, cause Merger Sub's designees to be so elected; PROVIDED, HOWEVER, that such election may be effected by means of increasing the size of the Board of Directors of the Company or obtaining the resignation of incumbent directors and causing Merger Sub's designees to be elected; PROVIDED, FURTHER, that (i) notwithstanding the foregoing, Merger Sub shall not be entitled to elect a majority of the Company's directors under this SECTION 1.3(a) until such time as it owns more than fifty percent (50%) of the outstanding shares of Company Common Stock, (ii) the obligation to increase the size of the Company's board of directors is subject to restrictions contained in the Company's certificate of incorporation and bylaws, and (the “Board”iii) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Boardextent the Company is so restricted from increasing the size of its board of directors, the Company will use its best efforts to obtain resignations from the members of its board of directors in order to effect the right of Merger Sub to elect designated members of the Company's board of directors and have such nominees elected to such board of directors.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the The Company, if necessary) 's obligations to cause one (1) additional Walgreens Designee designees of Merger Sub to be elected or appointed to the Boardboard of directors of the Company shall be subject to Section 14(f) of the `34 Act, and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this SECTION 1.3, and shall include in the Schedule 14D-9 such that information with respect to the Board shall have two (2Company and its officers and directors as is required under Section 14(f) Walgreens Directorsand Rule 14f-1. Parent and Merger Sub will supply to the Company any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) During After the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, time that Merger Sub's designees constitute at each annual or special meeting least a majority of the stockholders board of directors of the Company at which directors are to be elected to and until the BoardEffective Time, any amendment or termination of this Agreement, extension for the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation performance or waiver of the Board that stockholders obligations or other acts of Parent or Merger Sub or waiver of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights PeriodCompany's rights hereunder, two (2) Walgreens Designees which amendment, termination, extension or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of waiver would adversely affect the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders or optionholders of the Company, andshall also require the approval of a majority (or such higher percentage as is required under the bylaws of the Company) of the then serving directors, in each case if any, who are directors as of clause the date hereof (i) and clause (iithe "Continuing Directors"). If the number of Continuing Directors prior to the Effective Time is reduced below three for any reason, the remaining Continuing Directors or Director shall be entitled to designate persons to fill such individual vacancies who shall then be deemed a Walgreens Director Continuing Directors for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5this Agreement.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon The Company shall have a Board of Directors composed of 12 (twelve) members each Director having a term in office of 3 (three) years, re-election being permitted. Subject to the occurrence provisions of a Walgreens Investor Rights Initiation EventSections 2.12 and 6 hereto, each of the Company’s board TEF Group and the PT Group shall have the right to make binding nominations to appoint 6 (six) Directors, provided that at least 3 (three) of directors each such 6 (the “Board”six) took the action necessary to cause one (1) Walgreens Designee Directors shall be required to be appointed to resident in the BoardNetherlands.
(b) Upon Each of the occurrence Shareholders agrees to exercise its voting rights in the relevant Shareholders Meeting to appoint the Directors nominated by each of the TEF Group and the PT Group in terms of Section 2.2(a) above. In the event of a Walgreens Investor Rights Step-Up Eventvacancy in the Board of Directors (including, without limitation, as a result of removal), the Board replacement member shall promptly (be nominated by binding nomination of the Shareholder’s Group which nominated the Director being replaced, for the period left to complete the relevant term in office. A Shareholder may require the suspension, removal or replacement of a Director nominated by that Shareholder’s Group at any time and for any reason. Each Shareholder in a Group shall have the right to require the suspension or removal of a Director nominated by the Shareholders in the other Group, provided that this is for Just Cause. The Shareholder requesting the replacement of a Director shall deliver a notice to the other Shareholders which shall contain the request to replace the relevant Director and in the event that such Director was nominated by the other Group a description of the relevant Just Cause. Provided that the Just Cause as stated in such notice is accepted by the other Shareholders, a Shareholders Meeting shall be held within 30 (thirty) days of the receipt of such notice to replace the relevant Director. Subject to the mandatory provisions of any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending applicable law, and more particularly Netherlands employment law, each of the organizational documents of TEF Group, the PT Group and the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to as the Boardcase may be, such shall procure that the Board shall have two (2) Walgreens Directors.
(c) During terms and conditions upon which Directors are appointed in terms of the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.12.2, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by such that the Board or Directors will not have the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee right to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, indemnification in the event of (i) the death, disability, suspension or removal or resignation of a Walgreens Director, the Board will promptly appoint from their duty as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunderDirectors. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board Any text removed pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) Telefónica, S.A.’s confidential treatment request has been separately filed with the same rights to indemnification U.S. Securities and exculpation that it provides to the other members of the Board. The Company acknowledges Exchange Commission and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the is marked “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts[***]” herein.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Stockholder Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to Buyer shall cause one (1) Walgreens Stockholder Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Stockholder Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company Buyer at which directors are to be elected to the Board, the Company will Buyer shall nominate and use its reasonable best efforts (which shall, subject to Applicable Lawapplicable Law and Judgment, include including in any proxy statement used by the Company Buyer to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company Buyer vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Stockholder Designee. 1 To be updated based on type of entity at Closing.
(dc) WBA The Stockholder shall notify the Company Buyer of the identity of any proposed Walgreens Stockholder Designee, in writing, on at or before the time such information is reasonably requested by the Board or any applicable committee of the Board responsible for governance and board nominating matters (the “Governance and Nominating Committee Committee”) to permit a reasonable time for the Board to review such proposed Stockholder Designee and for inclusion in a proxy statement for a meeting of stockholders, together with and shall furnish all information about such proposed Walgreens Stockholder Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee in connection therewith (including, at a minimum, any information regarding such proposed Walgreens Stockholder Designee to the extent required by applicable Law or Judgment, including applicable securities laws or Laws). Notwithstanding the provisions of this Article I, the Stockholder shall not be entitled to designate a particular Stockholder Designee (or, for the avoidance of doubt, any other person nominated for election particular Stockholder Director) to the BoardBoard pursuant to this Article I if such Stockholder Designee is not reasonably acceptable to the Board and the Governance and Nominating Committee (it being understood that each of Xxxxxxx X. Xxxxxxx XX and Xxxxxxx X. Xxxxxxx III is, as of the date of this Agreement, reasonably acceptable to the Board and the Governance and Nominating Committee).
(ed) Subject to Section 1.1(d) and Section 1.21.1(c), so long as no Walgreens Stockholder Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens the Stockholder Director, the Board will shall promptly appoint as a replacement Walgreens Stockholder Director the Walgreens Stockholder Designee designated by WBA the Stockholder to fill the resulting vacancyvacancy and to serve for the term that such Stockholder Director would have served but for such Stockholder Director’s death, disability, removal or resignation, or (ii) the failure of a Walgreens Stockholder Designee to be elected to the Board at any annual or special meeting of the stockholders of Buyer during the Company Stockholder Investor Rights Period and at which such Walgreens Stockholder Designee stood for election but was nevertheless not elected (such Walgreens Stockholder Designee, a “Walgreens Stockholder Specified Designee”), the Board will shall promptly appoint another Walgreens Stockholder Designee designated by WBA the Stockholder to serve in lieu of such Walgreens Stockholder Specified Designee as a Walgreens the Stockholder Director during the term that such Walgreens Stockholder Specified Designee would have served had such Walgreens Stockholder Specified Designee been elected at such meeting of the stockholders of the CompanyBuyer, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens the Stockholder Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(fe) The Company will Buyer shall at all times provide each Walgreens Stockholder Director (in his or her capacity as a member of the Board) with the same rights to indemnification indemnification, advancement of expenses and exculpation that it provides to the other members of the Board. The Company acknowledges .
(f) For the avoidance of doubt, subject to applicable Law and agrees that any Judgment, for so long as a Stockholder Director is a member of the Board, Buyer and its subsidiaries will prepare and provide, or cause to be prepared and provided, to such indemnification obligations to indemnify or advance expenses to each Walgreens Director, Stockholder Director (in his or her capacity as such) any materials or other information prepared for or given to any other member of the Board (excluding any such materials or other information prepared for and given solely to the [Chief Executive Officer] and no other member of the Board), as and when prepared for or given to any such other member, or any other materials or other information relating to the matters covered by such indemnification obligationsmanagement, operations and finances of Buyer and its subsidiaries as and when generally provided to directors of Buyer; provided, however, that the Stockholder Director shall not be the primary source of indemnification and advancement of such Walgreens Director in connection therewithentitled to attend or participate in, and shall, to the extent applicable, waive notice and recuse himself or herself from, such meetings as a party thereto, and shall not be entitled to receive any obligation information, in each case to the extent related to the Stockholder or the Purchase Agreement, any ancillary transaction documents related thereto or any of the transactions contemplated thereby or otherwise related to any other commercial relationship between the Stockholder or any of its affiliates, on the part one hand, and Buyer or any of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens its affiliates, on the other hand. Each Stockholder Director shall be secondary bound by and subject to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect same confidentiality obligations as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect other director of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsBuyer.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Virgin Trains USA LLC)
Composition of the Board of Directors. (a) Upon Subject to the occurrence other provisions of a Walgreens Investor Rights Initiation Eventthis Section 2.1, (i) for so long as the Investors Beneficially Own any of the then-issued and outstanding Company Ordinary Shares, the Company’s board Parent shall have the right to designate one (1) Shareholder Designee, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; and (ii) for so long as the Investors Beneficially Own (collectively) at least ten percent (10%) of the then-issued and outstanding Company Ordinary Shares, the Parent shall have the right to designate two (2) Shareholder Designees, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; provided that no other Person shall have the exercisable right to designate more directors to the Board than the Parent as a result of any agreement between the Company and such Person. The Company shall take all necessary actions to give effect to this Section 2.1(a), including, if necessary adjusting the size of the Board and/or seeking and accepting the resignations of incumbent directors.
(b) Unless waived by the “Board”Parent or restricted by Law, during the Board Seat Period, (i) took the action necessary to Company shall cause one (1) Walgreens Designee Shareholder Director to be appointed to the Board.
(b) Upon the occurrence Nomination and Compensation Committee of a Walgreens Investor Rights Step-Up Event, the Board and (ii) the other Shareholder Director (or, if there is only one Shareholder Director, such Shareholder Director) shall promptly (and in upon request of Parent or such Shareholder Director) be permitted to attend any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents meeting of each other committee of the Company, if necessaryBoard in an observer (non-voting) capacity and to cause one (1) additional Walgreens Designee to be appointed receive all materials provided to the Board, members of each such that the Board shall have two (2) Walgreens Directorscommittee when provided to such members.
(c) During the Walgreens Investor Rights Board Seat Period, subject the Company shall procure that the appointment of the relevant number of Shareholder Designees to the other provisions of this Board that Parent is entitled to designate pursuant to Section 1.1, including Section 1.1(d), 2.1(a) is proposed and Section 1.2, recommended for approval by the Company’s shareholders at each the next annual or special general meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in following any proxy statement used designation by the Company to solicit the vote Parent of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Shareholder Designee.
(d) WBA If any Shareholder Designee is not appointed to the Board at any annual general meeting of the Company during the Board Seat Period (including if a Shareholder Designee was designated by the Parent and appointed prior to and effective as of the Completion (as defined in the Transaction Agreement), but is unable to serve or has resigned as a Shareholder Director as of the Completion, or any Shareholder Designee has not been elected prior to the Completion) the Parent may designate a replacement (or initial, as applicable) Shareholder Designee for appointment to the Board. The Company shall [(i) appoint such replacement Shareholder Designee to the Board in accordance with clause (e) and (ii)]5 propose and recommend the appointment of such replacement Shareholder Designee at an extraordinary general meeting of the Company to be held not later than sixty (60) days after any such annual general meeting.
(e) [Notwithstanding anything in this Section 2.1 to the contrary, in the event that at any time (i) Parent has the right to nominate a Shareholder Designee and (ii) a Shareholder Designee is not yet appointed or a Shareholder Designee shall cease to serve as a director for any reason, upon written notice from Parent to the Company, the vacancy resulting therefrom shall be filled by the Board as promptly as reasonably practicable with a substitute Shareholder Designee until the Shareholder Designee is formally appointed at the relevant next general shareholder meeting.]6 [In the event that at any time (i) the collective Beneficial Ownership of Company Ordinary Shares of the Investors, as a group, is equal to or more than ten percent (10%) of the then-issued and outstanding Company Ordinary Shares and (ii) the Articles of Association do not permit the filling of vacancies on the Board other than at an annual or extraordinary general meeting of the Company, the Company shall propose and recommend for approval by the Company’s shareholders at each annual general meeting of the Company amendments to 5 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained. 6 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained. the Articles of Association to permit the interim filling of vacancies of the Board until such amendment is approved.]7
(f) The Parent shall have the right to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place. If the Parent wishes to remove a Shareholder Director and designate another Shareholder Designee in his or her place pursuant to this Section 2.1, the Company shall, upon written notice from the Parent to the Company, [(i) fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with clause (e) and (ii)][8] propose and recommend the appointment of such replacement Shareholder Designee at the next general meeting of the Company following any such designation.
(g) The Parent shall notify the Company of the identity of any proposed Walgreens Designee, Shareholder Designee in writing, on at or before the time such information is reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company for inclusion in any materials to be provided to shareholders of the Company in connection with a proxy statement for a general meeting of stockholdersthe Company, together with all information about such proposed Walgreens Shareholder Designee as shall be reasonably requested by the Board, any committee of the Board or the Governance and Nominating Committee Company (including, at a minimum, any information regarding such proposed Walgreens Shareholder Designee to the extent required by applicable securities laws or for any other person nominated for election to the BoardLaw).
(eh) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurredDuring the Board Seat Period, in the event of (i) the death, disability, removal or resignation of a Walgreens Shareholder Director, the Board will promptly appoint as Parent may propose a replacement Walgreens Director the Walgreens Shareholder Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected for appointment to the Board and the Company shall upon written notice from the Parent to the Company, [(i) fill the vacancy resulting from such removal with such replacement Shareholder Designee in accordance with clause (e) and (ii)][9] propose and recommend the appointment of such replacement Shareholder Designee at any annual or special the next general meeting of the stockholders Company following any such designation. [In the event of the death or disability of a Shareholder Director, or the resignation or removal of a Shareholder Director in connection with the termination of such Shareholder Director’s employment with the Parent or its Affiliate, if the next annual general meeting of the Company at which following such Walgreens Designee stood for election but was nevertheless event will not elected (occur within the next six months following such Walgreens Designee, a “Walgreens Specified Designee”)event, the Board will Company shall cause an extraordinary general meeting to be convened as promptly appoint another Walgreens as practicable for the purpose of approving the appointment of a replacement Shareholder Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause Board.][10]
(i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Shareholder Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation insurance that it provides to the other members of the Board and shall procure that the agenda for each annual general meeting of the Company during the Board 7 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is not obtained. 8 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained. 9 To be included if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained. 10 To be deleted if Shareholder Approval to permit the interim filling of vacancies on the Board is obtained. Seat Period and the first annual general meeting following the termination of the Board Seat Period includes a resolution discharging all directors of the Board. , including any Shareholder Directors, in respect of their management during the prior fiscal year.
(j) During any period between (A) the designation of a Shareholder Designee and the appointment of such Shareholder Designee to the Board or (B) the death, disability, removal or resignation of a Shareholder Director and the appointment of any replacement Shareholder Designee to the Board, such Shareholder Designee shall be entitled to attend meetings of the Board in the capacity of an observer with the right to speak and participate in discussions of the Board, but without any voting rights, and the Company shall provide such Shareholder Designee with written notice of all Board meetings and all Board papers on the same basis as notices and Board documents are provided to the directors of the Company.
(k) The Parent and the Shareholders acknowledge that the Company acknowledges will require, prior to his or her nomination:
(i) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other non-executive directors of the Company, to be bound by and agrees that any such indemnification obligations duly comply with applicable Law, the Articles of Association, the rules and practices applicable to indemnify the Board and its committees and the corporate governance principles applied by the Company;
(ii) each Shareholder Designee to be appointed to the Board to agree in writing, on substantially the same terms as accepted in writing by the other members of the Board, to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses to each Walgreens Director, she becomes aware in his or her capacity as sucha member of the Board;
(iii) each Shareholder Designee to be appointed to the Board to agree in writing to recuse himself or herself from any deliberations or discussions of the Board or any committee of the Board regarding the Transaction Agreement, the transactions contemplated thereby and any matter related thereto;
(iv) each Shareholder Designee to be appointed to the Board to agree in writing to (x) resign from the Board effective immediately upon the termination of the Board Seat Period and (y) if requested by the Parent or the Shareholders (including, for the matters covered by such indemnification obligationsavoidance of doubt, shall be pursuant to Section 2.4), resign from the primary source Board to the extent that a Shareholder Designee is required to resign in order to (A) result in the requisite number of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation Shareholder Designees serving on the part Board as set forth in Section 2.1(a) or (B) satisfy the requirements of any Investor Indemnitor under any Investor Indemnification Agreement Section 2.2; and
(v) each Shareholder Designee that acts as an observer to indemnify agree in writing to keep confidential all information regarding the Company and its Subsidiaries of which he or advance expenses she becomes aware in his or her capacity as an observer. The Parent and the Shareholders shall cause each Shareholder Designee and each Shareholder Director to such Walgreens comply with all of the agreements referenced in the foregoing clauses (i)-(v).
(l) Notwithstanding anything to the contrary herein, during the Board Seat Period, each Shareholder Director shall be secondary entitled to attend meetings of the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsShareholders.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon Subsequent to the occurrence Closing and prior to and including the date of the Listing, in any and all votes for the number or election of directors of AOPP (whether at a meeting or by written consent in lieu of a Walgreens Investor Rights Initiation Eventmeeting), each Stockholder shall, taking into account the Company’s manner of voting, whether cumulative or majority, vote or cause to be voted all Shares (as defined in Section 3 below) owned by it, or over which it has voting control, and otherwise use its respective best efforts, so as to fix the number of directors of AOPP at three (3) and to elect (i) two board members designated by PSA and meeting the approval of Acquiport Two, with such approval not unreasonably withheld, and (ii) one board member designated by Acquiport Two and meeting the approval of PSA, with such approval not unreasonably withheld. The directors initially designated by PSA are Xxxxxx X. Xxxxxx, Xx. and Xxxxxx Xxxxxx, and the director initially designated by Acquiport Two is Xxxx Xxxx. For purposes of this Section 2(a), these three initial directors are hereby approved by Acquiport Two and PSA. So long as this Section 2(a) is in effect, AOPP shall cause the members of the board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee of Acquisition Corporation to be appointed to the Boardsame as the AOPP board.
(b) Upon Subsequent to the occurrence Listing, in any and all votes for the number or election of directors of AOPP (whether at a meeting or by written consent in lieu of a Walgreens Investor Rights Step-Up Eventmeeting), each Stockholder shall, taking into account the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents manner of the Companyvoting, if necessary) to whether cumulative or majority, vote or cause one (1) additional Walgreens Designee to be appointed voted all Shares (as defined in Section 3 below) owned by it, or over which it has voting control, and otherwise use its respective best efforts, so as to fix the Boardnumber of directors of AOPP at seven and to elect (i) two board members designated by PSA, (ii) one board member designated by Acquiport Two, and (iii) four independent board members mutually approved by Acquiport Two and PSA, such that the Board shall have two (2) Walgreens Directorsapproval not to be unreasonably withheld or delayed. For purposes of this Section 2(b), Xxxx X. Xxxxxx, Xxxxxx Xxxxxxxx and Xxxx Xxxxxx are hereby approved by Acquiport Two and PSA.
(c) During Notwithstanding Sections 2(a) and 2(b) above, the Walgreens Investor Rights PeriodStockholders' obligations to vote their Shares as described in Sections 2(a) and 2(b) shall cease on the date (the "Termination Date") that is the earlier of, subject (i) the Unwind Date; (ii) the date on which Acquiport Two no longer maintains a Fully Diluted ownership interest in the OP and the general partner of the OP equal to or greater than 20% (but excluding, for the other provisions purpose of calculating Acquiport Two's Fully Diluted ownership interest, any Shares that have been issued pursuant to an "Equity for Property Exchange" or a "Shareholder Approval Issuance" (as defined below) unless and until Acquiport Two has been provided the opportunity to acquire AOPP Shares pursuant to a "Cash Offering" (as defined below) on account thereof pursuant to Section 4(ii) below); and (iii) the date on which PSA no longer maintains a Fully Diluted ownership interest in the OP and the general partner of the OP equal to or greater than 20%, provided, however, that notwithstanding clause ii or iii of this Section 1.1, including Section 1.1(d2(c), the Stockholders' obligations to vote their Shares as described in Sections 2(a) and Section 1.2, at each annual or special meeting of 2(b) shall continue until the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate 4th anniversary hereof and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any shall terminate on such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designeedate.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee Prior to the extent required Termination Date, PSA shall not vote to remove any director designated by applicable securities laws Acquiport Two except for bad faith or for any other person nominated for election willful misconduct. Prior to the Board)Termination Date, Acquiport Two shall not vote to remove any director designated by PSA, except for bad faith or willful misconduct.
(e) Subject If, prior to the Listing, any director elected pursuant to the terms of this Section 1.1(d) 2 shall resign, die, become incapacitated or be removed, PSA and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal Acquiport Two agree to vote or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated cause to be voted all Shares owned by WBA to fill the resulting vacancythem, or (ii) over which they have voting control, and otherwise use their best efforts so that a mutually approved independent director, or a designee of the failure of a Walgreens Designee to entity whose designated director has resigned, died, become incapacitated or been removed, as the case may be, shall be elected to the Board at any annual or special meeting board of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”)directors; provided, the Board will promptly appoint another Walgreens Designee designated by WBA to serve requirements otherwise set forth in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual this Section 2 shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5apply.
(f) The Company will at all times provide each Walgreens Director Subsequent to the Listing and until the Termination Date, except for (i) a vacancy in his or her capacity as the board member position designated by Acquiport Two, (ii) a vacancy in a board member of position designated by PSA (but only in the Board) event a successor board member to such PSA board member has not been approved prior to a vacancy occurring with the same rights to indemnification and exculpation that it provides respect to the other members board member position designated by PSA), and (iii) a vacancy created by the removal of a director by the vote or written consent of the Board. The shareholders or by court order, vacancies in the Board of Directors of the Company acknowledges and agrees that any such indemnification obligations to indemnify may be filled by the unanimous vote or advance expenses to each Walgreens Director, in his or her capacity as such, for written consent of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Companyremaining directors. In the event that a replacement or successor director is not approved pursuant to the Company fails to indemnify or advance expenses to each Walgreens Director as required terms of the immediately preceding sentence, such vacancy shall be filled by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”shareholders of the Resulting Entity in the manner set forth in Sections 2(e), notwithstanding the fact that such vacancy is being filled subsequent to the Listing and prior to the Termination Date, and 2(g).
(g) Subsequent to the Closing and until the Termination Date, AOPP agrees, in connection with any Investor Indemnitor makes election of directors, whether regularly scheduled or to fill a vacancy, to nominate only the individual or individuals designated by Acquiport Two and PSA pursuant to this Section 2 and to include in any payment relevant notice to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account shareholders the nomination of such Unpaid Indemnitee Amountsdesignees.
(h) If, such Investor Indemnitor shall be subrogated at any time, prior to the rights Termination Date, PSA and Acquiport Two shall have insufficient votes to achieve the results described in Sections 2(a) and 2(b), PSA and Acquiport Two shall confer as to the best manner of voting so as to fix the number of directors of AOPP and elect board members in a manner consistent with Sections 2(a) and 2(b). Prior to the Termination Date, neither PSA nor Acquiport Two shall elect cumulative voting without the written consent of the other party.
(i) The parties intend the provisions of this Section 2 to constitute a valid agreement between shareholders authorized by Section 706 of the California Corporation Code, as such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.section has been amended pursuant to California Assembly Xxxx No. 389 effective January 1,
Appears in 1 contract
Samples: Shareholder Agreement (Public Storage Properties Xi Inc)
Composition of the Board of Directors. (a) Upon Promptly following the occurrence of a Walgreens Investor Rights Initiation EventOffer Completion Date, the Company’s board Sub shall be entitled to designate up to such number of directors ("PARENT DESIGNEES") on the “Board”Board of Directors of the Company, rounded up to the next whole number, as shall give Sub, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Shares beneficially owned by Sub and Parent and the denominator of which shall be the number of Shares then issued and outstanding, and the Company and its Board of Directors shall, subject to applicable duties under Maryland law, at such time, take any and all such action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Parent Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders Directors of the Company at which in such Walgreens Designee stood class of directors (if any) as shall ensure the longest possible term for election but was nevertheless not elected such Parent Designees (such Walgreens Designee, a “Walgreens Specified Designee”), including using commercially reasonable efforts to cause relevant directors to resign and/or increasing the number of directors on the Board will promptly appoint another Walgreens Designee designated by WBA of Directors of the Company (subject to serve the limitations set forth in lieu the Company's Charter). The Company shall take all action required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder to effect the election of such Walgreens Specified Designee as a Walgreens Director during Parent Designees, including (i) mailing to its stockholders the term that information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) including such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of information in the Schedule 14D-9 filed with the Commission and distributed to the stockholders of the Company, andand the Company agrees to make such mailing so long as Sub shall have provided to the Company, on a timely basis, all information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Parent Designees. Parent and Sub shall promptly supply the Company and shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. At the Effective Time, the Company, if so requested, shall use its commercially reasonable efforts to cause Persons designated by Parent to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary (not including PHFL or PHFT) and each committee of each such Board of Directors (in each case to the extent of clause the Company's ability to elect such Persons).
(ib) The provisions of Section 2.3(a) are in addition to, and clause shall not limit, any rights which Parent, Sub or any of their respective Affiliates may have as holders or beneficial owners of Shares as a matter of applicable law with respect to the election of directors or otherwise.
(iic) Notwithstanding the provisions of this Section 2.3, the parties hereto shall use their respective commercially reasonable efforts to ensure that at least two (2) of the members of the Board of Directors shall, at all times prior to the Effective Time, be Persons who are directors of the Company on the date hereof (the "CONTINUING DIRECTORS"), PROVIDED that, if there shall be in office less than two (2) Continuing Directors, the Board of Directors, subject to their applicable duties under Maryland law may cause the Person designated by the remaining Continuing Director or Continuing Directors to fill such individual vacancy, and such Person shall then be deemed to be a Walgreens Continuing Director for all purposes hereunder. Neither of this Agreement, or if no Continuing Directors then remain, the other directors of the Company nor the Board then in office, subject to their applicable duties under Maryland law, shall designate two (2) Persons to fill such vacancies who will remove any Walgreens Director without the prior written consent of WBAnot be officers, unless such Walgreens Director is no longer eligible for designation as a member employees or Affiliates of the Board Company or Parent, and such Persons shall be deemed to be Continuing Directors for all purposes of this Agreement. Following the election or appointment of the Parent Designees pursuant to this Section 1.2 or 2.3 and prior to the extent necessary to remedy a breach Effective Time, any amendment of Section 1.5.
this Agreement, the Company's Charter or the Company's amended and restated bylaws (f) The the "BYLAWS"), any termination or amendment of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Parent and agrees that Sub or waiver of any such indemnification obligations to indemnify of the Company's rights or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithremedies hereunder, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify other consent or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced action by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountshereunder, shall require the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect concurrence of indemnification or advancement a majority of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsContinuing Directors.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Sub in accordance with the Offer for, shares of Common Stock equal to at least two-thirds of the outstanding shares of Common Stock, pursuant to the Offer, Sub shall be entitled to designate up to such number of directors on the Board of Directors of the Company, rounded up to the next whole number, as will give Sub, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on such Board of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors elected pursuant to this sentence) multiplied by a Walgreens Investor Rights Initiation Eventfraction, the Company’s board numerator of directors (which shall be the “Board”) took number of shares of Common Stock beneficially owned by Sub and Parent and the denominator of which shall be the number of shares of Common Stock then outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary needed to cause one (1) Walgreens Designee Sub's designees to be appointed to the BoardCompany's Board of Directors (including using its reasonable best efforts to cause directors to resign). Subject to applicable law, the Company shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its shareholders the Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Company on a timely basis all information required to be included in the Information Statement with respect to Sub's designees. Parent or Sub will be solely responsible for any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1. In furtherance thereof, the Company will increase the size of the Company's Board of Directors (subject to the limitations set forth in the Company's Restated and Amended Certificate of Incorporation and By-Laws), or use its reasonable efforts to secure the resignation of directors, or both, as is necessary to permit Sub's designees to be elected to the Company's Board of Directors. At the Effective Time (as defined in Section 2.01(a) hereof), the Company, if so requested, will use its reasonable efforts to cause persons designated by Sub to constitute the same percentage of each committee of such board, each board of directors of each Subsidiary and each committee of each such board (in each case to the extent of the Company's ability to elect such persons).
(b) Upon Following the occurrence election or appointment of a Walgreens Investor Rights StepSub's designees pursuant to this Section 1.03 and prior to the Effective Time (as hereinafter defined), any amendment or termination of this Agreement or the Restated and Amended Certificate of Incorporation or By-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents Laws of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions any termination of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used Agreement by the Company to solicit the vote of its stockholders in connection with Company, any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify extension by the Company of the identity time for the performance of any proposed Walgreens Designeeof the obligations or other acts of Parent and Sub or waiver of any of the Company's rights hereunder, in writing, on and any other consent or before the time such information is reasonably requested action by the Board or of Directors hereunder, will require the Governance and Nominating Committee for inclusion in concurrence of a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as majority (which shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(eleast two) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders directors of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), then in office who are directors on the Board will promptly appoint another Walgreens Designee date hereof and who voted to approve this Agreement or are designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting majority of the stockholders directors of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation who are directors on the part of any Investor Indemnitor under any Investor Indemnification Agreement date hereof and who voted to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and approve this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsAgreement.
Appears in 1 contract
Samples: Merger Agreement (Raymond Corp)
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Merger Sub in accordance with the Offer for, shares of a Walgreens Investor Rights Initiation EventCompany Common Stock pursuant to the Offer, and from time to time thereafter as shares of Company Common Stock are acquired by Merger Sub, Merger Sub shall be entitled to designate such number of directors, rounded up to the next whole number, but at no time prior to the Effective Time (as hereinafter defined) more than three fewer than the total number of directors on the Board of Directors of the Company’s , equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that such number of shares of Common Stock so accepted for payment and paid for or otherwise acquired or owned by Merger Sub or Parent bears to the number of shares of Company Common Stock outstanding. The Company shall, at such time, cause Merger Sub's designees to be so elected; PROVIDED, HOWEVER, that such election may be effected by means of increasing the size of the Board of Directors of the Company or obtaining the resignation of incumbent directors and causing Merger Sub's designees to be elected; PROVIDED, FURTHER, that (i) notwithstanding the foregoing, Merger Sub shall not be entitled to elect a majority of the Company's directors under this SECTION 1.3(A) until such time as it owns more than fifty percent (50%) of the outstanding shares of Company Common Stock, (ii) the obligation to increase the size of the Company's board of directors is subject to restrictions contained in the Company's certificate of incorporation and bylaws, and (the “Board”iii) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Boardextent the Company is so restricted from increasing the size of its board of directors, the Company will use its best efforts to obtain resignations from the members of its board of directors in order to effect the right of Merger Sub to elect designated members of the Company's board of directors and have such nominees elected to such board of directors.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the The Company, if necessary) 's obligations to cause one (1) additional Walgreens Designee designees of Merger Sub to be elected or appointed to the Boardboard of directors of the Company shall be subject to Section 14(f) of the `34 Act, and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this SECTION 1.3, and shall include in the Schedule 14D-9 such that information with respect to the Board shall have two (2Company and its officers and directors as is required under Section 14(f) Walgreens Directorsand Rule 14f-1. Parent and Merger Sub will supply to the Company any information with respect to either of them and their nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1.
(c) During After the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, time that Merger Sub's designees constitute at each annual or special meeting least a majority of the stockholders board of directors of the Company at which directors are to be elected to and until the BoardEffective Time, any amendment or termination of this Agreement, extension for the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation performance or waiver of the Board that stockholders obligations or other acts of Parent or Merger Sub or waiver of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights PeriodCompany's rights hereunder, two (2) Walgreens Designees which amendment, termination, extension or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of waiver would adversely affect the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders or optionholders of the Company, andshall also require the approval of a majority (or such higher percentage as is required under the bylaws of the Company) of the then serving directors, in each case if any, who are directors as of clause the date hereof (i) and clause (iithe "Continuing Directors"). If the number of Continuing Directors prior to the Effective Time is reduced below three for any reason, the remaining Continuing Directors or Director shall be entitled to designate persons to fill such individual vacancies who shall then be deemed a Walgreens Director Continuing Directors for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5this Agreement.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Samples: Merger Agreement (Oea Inc /De/)
Composition of the Board of Directors. (a) Upon the occurrence Each of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the Parent and each Holder shall use its reasonable best efforts to take such action necessary as is required under applicable law to cause one the Directors designated pursuant to Sections 3.1(b), (1c), (d), (e), (f) Walgreens Designee and (g) to be appointed to the BoardBoard of Directors as of the date hereof.
(b) Upon WCAS VIII, WCAS CP III and the occurrence WCAS Securityholders, as the case may be, shall be entitled to designate the following Directors for nomination for election to the Board of a Walgreens Investor Rights Step-Up EventDirectors: (i) during the Initial W Board Membership Period, WCAS VIII shall be entitled to designate one Director, WCAS CP III shall be entitled to designate one Director and the WCAS Securityholders shall collectively be entitled to designate two additional Directors; (ii) during the Second W Board Membership Period, WCAS VIII shall be entitled to designate one Director, WCAS CP III shall be entitled to designate one Director and the WCAS Securityholders shall collectively be entitled to designate one additional Director; (iii) during the Third W Board Membership Period, WCAS VIII shall be entitled to designate one Director and WCAS CP III shall be entitled to designate one Director; and (iv) during the Final W Board Membership Period, WCAS VIII shall be entitled to designate one Director. For so long as, and at any time at which, the Board shall promptly (WCAS Securityholders and in any case within ten (10) Business Days) after receiving their Affiliates collectively beneficially own a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents majority of the Companythen-outstanding Series B Senior Preferred Stock, each Director elected to the Board of Directors or otherwise serving as a Director pursuant to the Series B Certificate of Designation shall be deemed for all purposes of this Agreement to be a Director nominated for election by the WCAS Securityholders pursuant to this Section 3.1(b) or, if necessary) the WCAS Securityholders do not then have the right to cause one (1) additional Walgreens Designee designate two directors for nomination for election to the Board of Directors, each such Director shall be deemed for all purposes of this Agreement to be appointed a Director nominated by the WCAS Securityholders and/or by WCAS VIII and WCAS CP III. Notwithstanding the immediately preceding sentence, if and at any time the WCAS Securityholders and their Affiliates collectively beneficially own less than a majority of the then-outstanding Series B Senior Preferred Stock, each Director elected to the BoardBoard of Directors or otherwise serving as a Director pursuant to the Series B Certificate of Designation who is a WCAS Partner shall be deemed for all purposes of this Agreement to be a Director nominated for election by the WCAS Securityholders pursuant to this Section 3.1(b) or, such that if the WCAS Securityholders do not then have the right to designate two directors for nomination for election to the Board of Directors, each such Director shall have two (2) Walgreens Directorsbe deemed for all purposes of this Agreement to be a Director nominated by the WCAS Securityholders and/or by WCAS VIII and WCAS CP III. Xxxx Xxxxxxx, Xx. and Xxxxxx X. XxXxxxxxx shall be the initial designees of WCAS VIII and WCAS CP III, respectively. Xxxxxxx X. xx Xxxxxx and Xxxxxx Xxxxx are the Directors serving on the Board of Directors as of the date hereof pursuant to the Series B Certificate of Designation.
(c) During The MC Stockholders shall collectively be entitled to designate the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the following Directors for nomination for election to the Board of a slate of directors that includes Directors: (i) during the Walgreens Enhanced Investor Rights Initial MC Board Membership Period, two (2) Walgreens Designees or M/C Venture Partners V, L.P. shall be entitled to designate one Director and Media/Communications Partners III Limited Partnership shall be entitled to designate one Director; and (ii) otherwiseduring the Final MC Board Membership Period, M/C Venture Partners V, L.P. shall be entitled to designate one (1) Walgreens DesigneeDirector. [ ] and [ ] shall be the initial designees of M/C Venture Partners V, L.P. and Media/Communications Partners III Limited Partnership, respectively.
(d) WBA shall notify the Company of the identity of any proposed Walgreens DesigneeColumbia Capital Equity Partners III (QP), in writingL.P., on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in as a proxy statement for a meeting of stockholdersCL Stockholder, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee entitled to the extent required by applicable securities laws or designate one Director for any other person nominated nomination for election to the BoardBoard of Directors during the CL Board Membership Period. [ ] shall be the initial designee of Columbia Capital Equity Partners III (QP)., L.P.
(e) Subject The NT Stockholders shall collectively be entitled to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens designate one Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected for nomination for election to the Board at any annual or special meeting of Directors during the NT Board Membership Period. [ ] shall be the initial designee of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5NT Stockholders.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity holders of the Series B Senior Preferred Stock shall be entitled to elect Directors for so long as such holders are entitled, voting as a member separate class, to elect such Directors pursuant to the Series B Certificate of Designation; provided that, if (i) the WCAS Securityholders and their Affiliates shall continue collectively to beneficially own at least 50% of the Board) with then-outstanding Series B Senior Preferred Stock at any time during the same rights period in which the WCAS Securityholders have the right to indemnification and exculpation that it provides designate one or more Directors for nomination for election to the other members Board of Directors pursuant to Section 3.1(b) and (ii) at such time the number of Directors that the holders of the BoardSeries B Senior Preferred Stock are then entitled to elect pursuant to the Series B Certificate of Designation exceeds the number of Directors which the WCAS Securityholders are entitled to designate for nomination for election to the Board of Directors pursuant to Section 3.1(b) each WCAS Securityholder that as of such date or from time to time thereafter owns beneficially or of record shares of the Series B Senior Preferred Stock shall take all such actions and do all such things (and shall cause its Affiliates to take all such actions and do all such things) (including, without limitation, to the extent necessary or advisable, proposing, voting for or consenting to any appropriate amendment to the Series B Certificate of Designation) to cause the number of Directors that the holders of the Series B Senior Preferred Stock are entitled to elect to the Board of Directors pursuant to the Series B Certificate of Designation, and to cause the number of Directors otherwise serving on the Board of Directors pursuant to the Series B Certificate of Designation, not to exceed the number of Directors that the WCAS Securityholders are then entitled to designate for nomination for election to the Board of Directors pursuant to Section 3.1(b).
(g) During the Director Designation Period, the following Directors, in addition to the Directors designated for nomination for election to the Board of Directors pursuant to Section 3.1(b), (c), (d) or (e), shall be designated by the Board of Directors for election to the Board of Directors: (i) the chief executive officer of Parent; (ii) during the Series A Board Membership Period, one Series A Designee; and (iii) such number of Directors as shall be required, consistent with Section 3.4, to constitute the audit committee of the Board of Directors solely with Directors who shall qualify as “independent” directors within the meaning of Section 301 of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder or pursuant thereto by any national securities exchange or Interdealer Quotation System on which any of Parent’s securities are listed or traded. The Company [ ] shall be the Series A Designee as of the date hereof and [ ], [ ] and [ ] shall be the three Directors referred to in clause (iii) above as of the date hereof.
(h) Notwithstanding the foregoing provisions of this Section 3.1, if at any time the WCAS Securityholders or the MC Stockholders (the WCAS Securityholders collectively or the MC Stockholders collectively, the “Increasing Stockholder”) shall have an Ownership Position which exceeds the Initial Position of the Increasing Stockholder, each of Parent and each Holder shall use its reasonable best efforts to take such action as may be required to cause the Increasing Stockholder and each other Holder that is then entitled to designate one or more Directors (whether pursuant to this Agreement or otherwise) for nomination for election to the Board of Directors to designate that number of Directors (rounded to the nearest whole number) that is proportionate to the Ownership Position of the Increasing Stockholder or other Holder. Such action shall include, without limitation, amending this Agreement, the certificate of incorporation of Parent, the bylaws of Parent or the Series B Certificate of Designation, as applicable. For the avoidance of doubt, and except as set forth in the following proviso, each Holder acknowledges and agrees that any the application of this Section 3.1(h) may result in a reduction of the number of Directors that such indemnification obligations Holder (other than the Increasing Stockholder) otherwise would be entitled to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, designate hereunder for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary nomination for election to the Company’s obligation and shall be reduced by any amount Board of Directors; provided that such Walgreens Director may collect as indemnification application of this Section 3.1(h) shall not result in a reduction in the number of Directors designated pursuant to Section 3.1(b) during the Initial W Board Membership Period, pursuant to Section 3.1(c) during the Initial MC Board Membership Period, pursuant to Section 3.1(d) during the CL Board Membership Period or advancement from pursuant to Section 3.1(e) during the Company. In NT Board Membership Period.
(i) Notwithstanding any other provision of this Agreement, (i) the event that CL Stockholders shall cease to have any rights or obligations under Article III following the Company fails termination of the CL Board Membership Period and (ii) the CN Stockholders shall cease to indemnify have any rights or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, under Article III following the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect termination of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsCN Board Observer Period.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon Promptly following the occurrence of a Walgreens Investor Rights Initiation EventOffer Completion Date, the Company’s board Sub shall be entitled to designate up to such number of directors ("Parent Designees") on the “Board”Board of Directors of the Company, rounded up to the next whole number, as shall give Sub, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Shares beneficially owned by Sub and Parent and the denominator of which shall be the number of Shares then issued and outstanding, and the Company and its Board of Directors shall, subject to applicable duties under Maryland law, at such time, take any and all such action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Parent Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders Directors of the Company at which in such Walgreens Designee stood class of directors (if any) as shall ensure the longest possible term for election but was nevertheless not elected such Parent Designees (such Walgreens Designee, a “Walgreens Specified Designee”), including using commercially reasonable efforts to cause relevant directors to resign and/or increasing the number of directors on the Board will promptly appoint another Walgreens Designee designated by WBA of Directors of the Company (subject to serve the limitations set forth in lieu the Company's Charter). The Company shall take all action required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder to effect the election of such Walgreens Specified Designee as a Walgreens Director during Parent Designees, including (i) mailing to its stockholders the term that information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) including such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of information in the Schedule 14D-9 filed with the Commission and distributed to the stockholders of the Company, andand the Company agrees to make such mailing so long as Sub shall have provided to the Company, on a timely basis, all information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Parent Designees. Parent and Sub shall promptly supply the Company and shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. At the Effective Time, the Company, if so requested, shall use its commercially reasonable efforts to cause Persons designated by Parent to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary (not including PHFL or PHFT) and each committee of each such Board of Directors (in each case to the extent of clause the Company's ability to elect such Persons).
(ib) The provisions of Section 2.3(a) are in addition to, and clause shall not limit, any rights which Parent, Sub or any of their respective Affiliates may have as holders or beneficial owners of Shares as a matter of applicable law with respect to the election of directors or otherwise.
(iic) Notwithstanding the provisions of this Section 2.3, the parties hereto shall use their respective commercially reasonable efforts to ensure that at least two (2) of the members of the Board of Directors shall, at all times prior to the Effective Time, be Persons who are directors of the Company on the date hereof (the "Continuing Directors"), provided that, if there shall be in office less than two (2) Continuing Directors, the Board of Directors, subject to their applicable duties under Maryland law may cause the Person designated by the remaining Continuing Director or Continuing Directors to fill such individual vacancy, and such Person shall then be deemed to be a Walgreens Continuing Director for all purposes hereunder. Neither of this Agreement, or if no Continuing Directors then remain, the other directors of the Company nor the Board then in office, subject to their applicable duties under Maryland law, shall designate two (2) Persons to fill such vacancies who will remove any Walgreens Director without the prior written consent of WBAnot be officers, unless such Walgreens Director is no longer eligible for designation as a member employees or Affiliates of the Board Company or Parent, and such Persons shall be deemed to be Continuing Directors for all pur poses of this Agreement. Following the election or appointment of the Parent Designees pursuant to this Section 1.2 or 2.3 and prior to the extent necessary to remedy a breach Effective Time, any amendment of Section 1.5.
this Agreement, the Company's Charter or the Company's amended and restated bylaws (f) The the "Bylaws"), any termination or amendment of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Parent and agrees that Sub or waiver of any such indemnification obligations to indemnify of the Company's rights or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithremedies hereunder, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify other consent or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced action by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amountshereunder, shall require the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect concurrence of indemnification or advancement a majority of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsContinuing Directors.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon the occurrence of a Walgreens the Amazon Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens an Amazon Investor Rights Step-Up Initiation Event Notice take all action necessary (including by amending the organizational documents of the Company, if necessary) to cause one (1) additional Walgreens Amazon Designee to be appointed to the Board. For the avoidance of doubt, the Amazon Investor Rights Initiation Event Notice shall be delivered in Amazon’s sole discretion, and nothing herein obligates Amazon to deliver such that notice or to have any Amazon Designee appointed to the Board shall have two (2) Walgreens DirectorsBoard.
(cb) During the Walgreens Amazon Investor Rights Period, provided that Amazon has delivered the Amazon Investor Rights Initiation Event Notice in accordance with Section 1.1(a) above, and subject to the other provisions of this Section 1.1, including Section 1.1(d1.1(c), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will shall nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Amazon Designee.
(dc) WBA Amazon shall notify the Company of the identity of any proposed Walgreens Amazon Designee, in writing, on at or before the time such information is reasonably requested by the Board or the Nominating and Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with and shall furnish all information about such proposed Walgreens Amazon Designee as shall be reasonably requested by the Board or the Nominating and Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Amazon Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(ed) Subject to Section 1.1(d1.1(c) and Section 1.2, so long as no Walgreens Amazon Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens an Amazon Director, the Board will shall promptly appoint as a replacement Walgreens Amazon Director the Walgreens Amazon Designee designated by WBA Amazon to fill the resulting vacancy, or (ii) the failure of a Walgreens an Amazon Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Amazon Designee stood for election but was nevertheless not elected (such Walgreens Amazon Designee, a an “Walgreens Amazon Specified Designee”), the Board will shall promptly appoint another Walgreens Amazon Designee designated by WBA Amazon to serve in lieu of such Walgreens Amazon Specified Designee as a Walgreens an Amazon Director during the term that such Walgreens Amazon Specified Designee would have served had such Walgreens Amazon Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens an Amazon Director for all purposes hereunder. Neither the Company nor the Board will shall remove any Walgreens Amazon Director without the prior written consent of WBAAmazon, unless (A) such Walgreens Amazon Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or 1.2, (B) to the extent necessary to remedy a breach of Section 1.51.5 or (C) as a result of the acceptance of such Amazon Director’s resignation tendered in accordance with the Company’s bylaws and corporate governance guidelines requiring the resignation of a director upon the failure to obtain the requisite majority vote for such director’s election to the Board pursuant to the Company’s bylaws.
(fe) The Company will shall at all times provide each Walgreens Amazon Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Amazon Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Amazon Director in connection therewith, and any obligation on the part of any Investor Amazon Indemnitor under any Investor Amazon Indemnification Agreement to indemnify or advance expenses to such Walgreens Amazon Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Companyobligation. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “If there are Unpaid Indemnitee Amounts”)Amounts with respect to such Amazon Director, and any Investor Amazon Indemnitor makes any payment to such Walgreens Amazon Director in respect of indemnification or advancement of expenses under any Investor Amazon Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Amazon Indemnitor shall be subrogated to the rights of such Walgreens Amazon Director under this Agreement in respect of such Unpaid Indemnitee Amounts.
Appears in 1 contract
Samples: Stockholders Agreement (Atlas Air Worldwide Holdings Inc)
Composition of the Board of Directors. Upon written request of the Investors, the Company shall appoint one individual designated by the Investor (athe “Investor Designee”) Upon the occurrence of a Walgreens Investor Rights Initiation Event, to the Company’s board of directors (the “Board”) took with a term expiring at the action necessary to cause one Company’s next annual meeting of its shareholders (1the “Annual Meeting”). For so long as the Investor beneficially owns twenty percent (20%) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents or more of the Company’s outstanding Common Stock, if necessary) the Company shall nominate and recommend the Investor Designee in the Company’s proxy statement at each Annual Meeting at which the Investor Designee’s term is set to cause one (1) additional Walgreens expire. The Company shall take all actions necessary to ensure there is a vacancy on the Board as of the effectiveness of this Agreement to permit the appointment of the Investor Designee. The Investors may remove the Investor Designee to be appointed to from the Board, such that and appoint another person as the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in . In the event of (i) the death, disabilityresignation, removal retirement or resignation vacation of office of the Investor Designee due to any other reason, then the Investors may appoint another person as the Investor Designee. If there is a Walgreens Director, vacancy on the Board will promptly appoint as a replacement Walgreens Director result of the Walgreens Designee designated by WBA Investor Designee’s failure to fill obtain the resulting vacancy, or (ii) requisite approval of the failure of a Walgreens Designee to be elected to the Board Company’s shareholders necessary for election at any annual or special meeting of the stockholders Company’s shareholders, and where no other individual is elected to fill such vacancy, the Investors shall have the right to designate another Investor Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Board. During the period that an Investor Designee is a director of the Company at which Board, such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designeedirector shall be entitled to the same benefits, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated including benefits under any director and officer indemnification or insurance policy maintained by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove as any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members director of the Board. The Company acknowledges During the period between the effectiveness of this Agreement and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be date the primary source Investor has beneficial ownership of indemnification and advancement less than ten percent (10%) of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation outstanding Common Stock, the Investor shall have the right to appoint one (1) non-voting board observer (the “Investor Observer”) who shall have the right to attend and participate in all Board and committee meetings (other than portions of such meetings in which the Board reasonably believes in good faith that the Investor has a conflict of interest). The Investor Observer shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event entitled to receive copies of all notices, minutes, consents, and other materials that the Company fails provides to indemnify or advance expenses to each Walgreens Director its directors at the same time and in the same manner as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment provided to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsdirectors.
Appears in 1 contract
Samples: Registration Rights Agreement (Keryx Biopharmaceuticals Inc)
Composition of the Board of Directors. Upon written request of the Investors, the Company shall appoint one individual designated by the Investor (athe “Investor Designee”) Upon the occurrence of a Walgreens Investor Rights Initiation Event, to the Company’s board of directors (the “Board”) took with a term expiring at the action necessary to cause one Company’s next annual meeting of its shareholders (1the “Annual Meeting”). For so long as the Investor beneficially owns twenty percent (20%) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents or more of the Company’s outstanding Common Stock, if necessary) the Company shall nominate and recommend the Investor Designee in the Company’s proxy statement at each Annual Meeting at which the Investor Designee’s term is set to cause one (1) additional Walgreens expire. The Company shall take all actions necessary to ensure there is a vacancy on the Board as of the effectiveness of this Agreement to permit the appointment of the Investor Designee. The Investors may remove the Investor Designee to be appointed to from the Board, such that and appoint another person as the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in . In the event of (i) the death, disabilityresignation, removal retirement or resignation vacation of office of the Investor Designee due to any other reason, then the Investors may appoint another person as the Investor Designee. If there is a Walgreens Director, vacancy on the Board will promptly appoint as a replacement Walgreens Director result of the Walgreens Designee designated by WBA Investor Designee’s failure to fill obtain the resulting vacancy, or (ii) requisite approval of the failure of a Walgreens Designee to be elected to the Board Company’s shareholders necessary for election at any annual or special meeting of the stockholders Company’s shareholders, and where no other individual is elected to fill such vacancy, the Investors shall have the right to designate another Investor Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Board. During the period that an Investor Designee is a director of the Company at which Board, such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designeedirector shall be entitled to the same benefits, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated including benefits under any director and officer indemnification or insurance policy maintained by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove as any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members director of the Board. The Company acknowledges During the period between the effectiveness of this Agreement and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be date the primary source Investor has beneficial ownership of indemnification and advancement less than ten percent (10%) of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation outstanding Common Stock, the Investor shall have the right to appoint one (1) non-voting board observer (the “Investor Observer”) who shall have the right to attend and participate in all Board and committee meetings (other than portions of such meetings in which the Board reasonably believes in good faith that the Investor has a conflict of interest). The Investor Observer shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event entitled to receive copies of all notices, minutes, consents and other materials that the Company fails provides to indemnify or advance expenses to each Walgreens Director its directors at the same time and in the same manner as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment provided to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsdirectors.
Appears in 1 contract
Samples: Registration Rights Agreement (Keryx Biopharmaceuticals Inc)
Composition of the Board of Directors. (a) Upon the occurrence Each of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the Parent and W shall use its best efforts to take such action necessary as is required under applicable law to cause one (1) Walgreens Designee to be appointed to the BoardBoard of Directors, effective as of the Effective Time, the Directors referred to in Sections 4.1(b)(i), 4.1(b)(ii) and 4.1(b)(v).
(b) Upon For a period of 15 months following the occurrence date of a Walgreens Investor Rights Step-Up Eventthe Effective Time (the "Initial Governance Period"), (i) WCAS VIII shall be entitled to designate one Director for nomination for election to the Board of Directors, (ii) WCAS CP III shall promptly be entitled to designate one Director for nomination for election to the Board of Directors, (and in any case within ten (10iii) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents holders of the CompanySeries B Preferred Stock shall be entitled to elect Directors for so long as such holders are entitled, if necessaryvoting as a separate class, to elect such Directors pursuant to the Certificate of Designation of the Series B Preferred Stock, (iv) the holders of the Series A Preferred Stock shall be entitled to cause one elect Directors for so long as such holders are entitled, voting as a separate class, to elect such Directors pursuant to the Certificate of Designation of the Series A Preferred Stock, (1v) additional Walgreens Designee the chief executive officer of Parent shall be nominated for election as a Director and (vi) the remaining Directors to be appointed to nominated shall be designated by the Board, such that remaining members of the Board shall have two of Directors (2other than employee members of the Board of Directors) Walgreens Directorson the date hereof (or, in the case of clause (vi), any replacement thereof nominated or elected by such Directors then in office).
(c) During Following the Walgreens Investor Rights Initial Governance Period, subject each of WCAS VIII and WCAS CP III shall be entitled to designate one member for nomination for election to the other provisions Board of this Section 1.1, including Section 1.1(d), Directors for so long as W and Section 1.2, at each annual or special meeting its Affiliates beneficially own Voting Securities representing a majority of the stockholders of outstanding Primary Voting Power. Following the Company at which directors are to be elected to the BoardInitial Governance Period, the Company will nominate and W shall use its reasonable best efforts (which shallto cause its WCAS Designees to nominate, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company and W shall vote in favor of, and take all other necessary or desirable actions (including, without limitation, attending all meetings in person or by proxy for purposes of the slate obtaining a quorum and executing all written consents in lieu of directorsmeetings) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Periodof, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designeeat least three Independent Directors.
(d) WBA shall notify During the Company Initial Governance Period, the parties hereto agree not to take any action that would cause the Board of Directors to consist of other than 11 members. Following the Initial Governance Period, each of Parent and W agree not to take any action that would cause the Board of Directors to have more than 15 members prior to the third anniversary of the identity date of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board)Effective Time.
(e) Subject Notwithstanding anything in this Agreement to Section 1.1(d) and Section 1.2the contrary, for so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of W and its Affiliates beneficially own Voting Securities representing a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting majority of the stockholders outstanding Primary Voting Power, Parent agrees that, following receipt of written notice from WCAS VIII and WCAS CP III, Parent promptly shall initiate all actions necessary to increase the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member size of the Board pursuant to Section 1.2 or of Directors to the extent necessary to remedy a breach of Section 1.5.
number specified in such written notice (f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides subject to the other members of the Board. The Company acknowledges and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, limitations set forth in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”Section 4.1(d), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts).
Appears in 1 contract
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of, and payment by Sub for, shares of a Walgreens Investor Rights Initiation Event, the Company’s board of directors (the “Board”) took the action necessary Common Stock equal to cause one (1) Walgreens Designee to be appointed to the Board.
(b) Upon the occurrence of a Walgreens Investor Rights Step-Up Event, the Board shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents at least 51% of the Company, if necessary) outstanding shares of Common Stock entitled to cause one (1) additional Walgreens Designee to be appointed to the Board, such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, vote on any matter at each annual or special a meeting of the stockholders of the Company at which directors are to be elected pursuant to the Boardterms of the Offer, Sub shall be entitled to designate up to such number of directors on the Company Board of Directors of the Company, rounded up to the next whole number, as will nominate and use its reasonable best efforts (which shallgive Sub, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection compliance with any such meeting the recommendation Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board that stockholders of Directors of the Company vote in favor equal to at least that number of directors which equals the product of the slate total number of directorsdirectors on the Board of Directors of the Company (including not less than two directors who are directors as of the date hereof and giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of shares of Common Stock beneficially owned by Sub and Parent and the denominator of which shall be the number of shares of Common Stock then outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action needed to cause the election Sub's designees to be appointed to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders Directors of the Company at which in such Walgreens Designee stood class of directors as shall ensure the longest possible term for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation designee as a member of the Board of Directors of the Company, including, without limitation, increasing the size of the Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-Laws) and using its reasonable efforts to secure the resignation of directors. Subject to applicable law, the Company shall take all action requested by Parent which is reasonably necessary to effect any such election, including mailing to its stockholders an Information Statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 so long as Sub shall have provided to the Company on a timely basis all information required to be included in such Information Statement with respect to Sub's designees. Parent and Sub shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) and Rule 14f-1.
(b) Following the election or appointment of Sub's designees pursuant to Section 1.2 or 2.3(a) and prior to the extent necessary to remedy a breach Effective Time, any amendment or termination of Section 1.5.
(f) The this Agreement or the Company's Certificate of Incorporation or Company's By- Laws, any termination of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Parent and agrees that Sub or waiver of any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany's rights hereunder, and any obligation other consent or action by the Board of Directors of the Company hereunder, shall require the concurrence of a majority of the directors of the Company then in office who were also directors on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsdate hereof.
Appears in 1 contract
Samples: Merger Agreement (New England Business Service Inc)
Composition of the Board of Directors. (a) Upon Subject to the occurrence other provisions of a Walgreens Investor Rights Initiation Eventthis Section 2.1, (i) for so long as the Investors Beneficially Own any of the then-issued and outstanding Company Ordinary Shares, the Company’s board Parent shall have the right to designate one (1) Shareholder Designee, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; and (ii) for so long as the Investors Beneficially Own (collectively) at least ten percent (10%) of the then-issued and outstanding Company Ordinary Shares, the Parent shall have the right to designate two (2) Shareholder Designees, and to propose to remove any Shareholder Director and designate another Shareholder Designee in his or her place; provided that no other Person shall have the exercisable right to designate more directors to the Board than the Parent as a result of any agreement between the Company and such Person. The Company shall take all necessary actions to give effect to this Section 2.1(a), including, if necessary adjusting the size of the Board and/or seeking and accepting the resignations of incumbent directors.
(b) Unless waived by the “Board”Parent or restricted by Law, during the Board Seat Period, (i) took the action necessary to Company shall cause one (1) Walgreens Designee Shareholder Director to be appointed to the Board.
(b) Upon the occurrence Nomination and Compensation Committee of a Walgreens Investor Rights Step-Up Event, the Board and (ii) the other Shareholder Director (or, if there is only one Shareholder Director, such Shareholder Director) shall promptly (and in upon request of Parent or such Shareholder Director) be permitted to attend any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents meeting of each other committee of the Company, if necessaryBoard in an observer (non-voting) capacity and to cause one (1) additional Walgreens Designee to be appointed receive all materials provided to the Board, members of each such that the Board shall have two (2) Walgreens Directorscommittee when provided to such members.
(c) During the Walgreens Investor Rights Board Seat Period, subject the Company shall procure that the appointment of the relevant number of Shareholder Designees to the other provisions of this Board that Parent is entitled to designate pursuant to Section 1.1, including Section 1.1(d), 2.1(a) is proposed and Section 1.2, recommended for approval by the Company’s shareholders at each the next annual or special general meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in following any proxy statement used designation by the Company to solicit the vote Parent of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Shareholder Designee.
(d) WBA shall notify the Company of the identity of If any proposed Walgreens Designee, in writing, on or before the time such information Shareholder Designee is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected not appointed to the Board at any annual or special general meeting of the stockholders Company during the Board Seat Period (including if a Shareholder Designee was designated by the Parent and appointed prior to and effective as of the Company at which such Walgreens Designee stood for election but was nevertheless not elected Completion (such Walgreens Designee, a “Walgreens Specified Designee”as defined in the Transaction Agreement), the Board will promptly appoint another Walgreens Designee designated by WBA but is unable to serve in lieu of such Walgreens Specified Designee or has resigned as a Walgreens Shareholder Director during as of the term that such Walgreens Specified Completion, or any Shareholder Designee would have served had such Walgreens Specified Designee has not been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary Completion) the Parent may designate a replacement (or initial, as applicable) Shareholder Designee for appointment to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members of the Board. The Company acknowledges shall [(i) appoint such replacement Shareholder Designee to the Board in accordance with clause (e) and agrees that (ii)]5 propose and recommend the appointment of such replacement Shareholder Designee at an extraordinary general meeting of the Company to be held not later than sixty (60) days after any such indemnification obligations annual general meeting.
(e) [Notwithstanding anything in this Section 2.1 to indemnify or advance expenses to each Walgreens Directorthe contrary, in his the event that at any time (i) Parent has the right to nominate a Shareholder Designee and (ii) a Shareholder Designee is not yet appointed or her capacity a Shareholder Designee shall cease to serve as sucha director for any reason, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary upon written notice from Parent to the Company’s obligation and , the vacancy resulting therefrom shall be reduced filled by any amount that such Walgreens Director may collect the Board as indemnification or advancement from promptly as reasonably practicable with a substitute Shareholder Designee until the Company. Shareholder Designee is formally appointed at the relevant next general shareholder meeting.]6 [In the event that at any time (i) the collective Beneficial Ownership of Company Ordinary Shares of the Investors, as a group, is equal to or more than ten percent (10%) of the then-issued and outstanding Company Ordinary Shares and (ii) the Articles of Association do not permit the filling of vacancies on the Board other than at an annual or extraordinary general meeting of the Company, the Company fails shall propose and recommend for approval by the Company’s shareholders at each annual general meeting of the Company amendments to indemnify or advance expenses 5 To be included if Shareholder Approval to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, permit the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect interim filling of indemnification or advancement of expenses under any Investor Indemnification Agreement vacancies on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsBoard is obtained.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon The Company shall have a Board of Directors composed of 12 (twelve) members each Director having a term in office of 3 (three) years, re-election being permitted. Subject to the occurrence provisions of a Walgreens Investor Rights Initiation EventSections 2.12 and 6 hereto, each of the Company’s board TEF Group and the PT Group shall have the right to make binding nominations to appoint 6 (six) Directors, provided that at least 3 (three) of directors each such 6 (the “Board”six) took the action necessary to cause one (1) Walgreens Designee Directors shall be required to be appointed to resident in the BoardNetherlands.
(b) Upon Each of the occurrence Shareholders agrees to exercise its voting rights in the relevant Shareholders Meeting to appoint the Directors nominated by each of the TEF Group and the PT Group in terms of Section 2.2(a) above. In the event of a Walgreens Investor Rights Step-Up Eventvacancy in the Board of Directors (including, without limitation, as a result of removal), the Board replacement member shall promptly (be nominated by binding nomination of the Shareholder’s Group which nominated the Director being replaced, for the period left to complete the relevant term in office. A Shareholder may require the suspension, removal or replacement of a Director nominated by that Shareholder’s Group at any time and for any reason. Each Shareholder in a Group shall have the right to require the suspension or removal of a Director nominated by the Shareholders in the other Group, provided that this is for Just Cause. The Shareholder requesting the replacement of a Director shall deliver a notice to the other Shareholders which shall contain the request to replace the relevant Director and in the event that such Director was nominated by the other Group a description of the relevant Just Cause. Provided that the Just Cause as stated in such notice is accepted by the other Shareholders, a Shareholders Meeting shall be held within 30 (thirty) days of the receipt of such notice to replace the relevant Director. Subject to the mandatory provisions of any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending applicable law, and more particularly Netherlands employment law, each of the organizational documents of TEF Group, the PT Group and the Company, if necessary) to cause one (1) additional Walgreens Designee to be appointed to as the Boardcase may be, such shall procure that the Board shall have two (2) Walgreens Directors.
(c) During terms and conditions upon which Directors are appointed in terms of the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.12.2, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by such that the Board or Directors will not have the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee right to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, indemnification in the event of (i) the death, disability, suspension or removal or resignation of a Walgreens Director, the Board will promptly appoint from their duty as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunderDirectors. Neither the Company nor the Board will remove any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board Any text removed pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) Telefónica Móviles S.A.’s confidential treatment request has been separately filed with the same rights to indemnification U.S. Securities and exculpation that it provides to the other members of the Board. The Company acknowledges Exchange Commission and agrees that any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement (such unpaid amounts, the is marked “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amounts[***]” herein.
Appears in 1 contract
Composition of the Board of Directors. (a) Upon Promptly upon the occurrence acceptance for payment of Shares equal to at least a Walgreens Investor Rights Initiation Eventmajority of the outstanding shares of Common Stock pursuant to the terms of the Offer, the Company’s board Acquisition shall be entitled to designate up to such number of directors ("Buyer Designees") on the “Board”Board of Directors of the Company, rounded up to the next whole number, as shall give Acquisition, subject to compliance with Section 14(f) took of the Exchange Act and Rule 14f-1 promulgated thereunder, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors elected pursuant to this sentence) multiplied by a fraction, the numerator of which shall be the number of Shares beneficially owned by Acquisition and Buyer and the denominator of which shall be the number of Shares then issued and outstanding, and the Company and its Board of Directors shall, at such time, take any and all such action necessary to cause one (1) Walgreens Designee Buyer Designees to be appointed to the Board.
Board of Directors of the Company in such class of directors (bif any) Upon as shall ensure the occurrence longest possible term for such Buyer Designees (including using commercially reasonable efforts to cause relevant directors to resign and/or increasing the size of a Walgreens Investor Rights Step-Up Event, the Board of Directors of the Company (subject to the limitations set forth in the Company's Certificate of Incorporation and the Company's By-laws)). The Company shall promptly (and in any case within ten (10) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents required pursuant to Section 14(f) of the Company, if necessary) Exchange Act and Rule 14f-1 promulgated thereunder to cause one (1) additional Walgreens Designee to be appointed to effect the Board, election of such that the Board shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1Buyer Designees, including Section 1.1(d), and Section 1.2, at each annual or special meeting of the stockholders of the Company at which directors are to be elected to the Board, the Company will nominate and use its reasonable best efforts (which shall, subject to Applicable Law, include including in any proxy statement used by the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation of the Board that stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during mailing to its stockholders the Walgreens Enhanced Investor Rights Period, two (2information required by Section 14(f) Walgreens Designees of the Exchange Act and Rule 14f-1 promulgated thereunder or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time including such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) Schedule 14D-9 filed with the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA -11- Commission and distributed to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders of the Company at which such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designee, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, andand the Company agrees to make such mailing so long as Acquisition shall have provided to the Company, on a timely basis, all information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder with respect to the Buyer Designees. Buyer and Acquisition shall be solely responsible for any information with respect to either of them and their nominees, officers, directors and Affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. At the Effective Time, the Company, if so requested by Buyer, shall use its commercially reasonable efforts to cause Persons designated by Buyer to constitute the same percentage of each committee of its Board of Directors, each Board of Directors of each Subsidiary and each committee of each such Board of Directors (in each case to the extent of clause the Company's ability to elect such Persons).
(ib) The provisions of Section 2.3(a) are in addition to, and clause shall not limit, any rights which Buyer, Acquisition or any of their respective Affiliates may have as holders or beneficial owners of Shares as a matter of applicable law with respect to the election of directors or otherwise.
(iic) Notwithstanding the provisions of this Section 2.3, the parties hereto shall use their respective commercially reasonable efforts to ensure that at least two (2) of the members of the Board of Directors shall, at all times prior to the Effective Time, be Persons who are directors of the Company on the date hereof (the "Continuing Directors"); provided that, if there shall be in office less than two (2) Continuing Directors, the Board of Directors may cause the Person designated by the remaining Continuing Director or Continuing Directors to fill such individual vacancy, and such Person shall then be deemed to be a Walgreens Continuing Director for all purposes hereunder. Neither of this Agreement, or if no Continuing Directors then remain, the other directors of the Company nor the Board then in office shall designate two (2) Persons to fill such vacancies who will remove any Walgreens Director without the prior written consent of WBAnot be officers, unless such Walgreens Director is no longer eligible for designation as a member employees or Affiliates of the Board Company or Buyer, and such Persons shall be deemed to be Continuing Directors for all purposes of this Agreement. Following the election or appointment of the Buyer Designees pursuant to this Section 1.2 or 2.3 and prior to the extent necessary to remedy a breach Effective Time, any amendment of Section 1.5.
(f) The this Agreement, the Company's Certificate of Incorporation or the Company's By-laws, any termination of this Agreement by the Company, any extension by the Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with time for the same rights to indemnification and exculpation that it provides to the other members performance of any of the Board. The Company acknowledges obligations or other acts of Buyer and agrees that Acquisition or waiver of any such indemnification obligations to indemnify or advance expenses to each Walgreens Director, in his or her capacity as such, for of the matters covered by such indemnification obligations, shall be the primary source of indemnification and advancement of such Walgreens Director in connection therewithCompany's rights hereunder, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify other consent or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation and shall be reduced action by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event that the Company fails to indemnify hereunder, shall require the concurrence of a majority of the Continuing Directors, if there are more than two (2) Continuing Directors, or advance expenses to each Walgreens Director as required by such indemnification obligations and this Agreement the concurrence of one (such unpaid amounts1) Continuing Director, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment to such Walgreens Director in respect of indemnification or advancement of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor shall be subrogated to the rights of such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee Amountsif there are two (2) Continuing Directors.
Appears in 1 contract
Samples: Merger Agreement (T Netix Inc)
Composition of the Board of Directors. (a) Upon the occurrence written request of a Walgreens Investor Rights Initiation EventBaupost, the Company’s board of directors of the Company (the “Board”) took shall appoint two individuals designated by Baupost (the action necessary to cause one (1“Baupost Designees”) Walgreens Designee to be appointed to the Board.
Board with a term expiring at the Company’s annual meeting of its stockholders (bthe “Annual Meeting”) Upon occurring in 2018 and shall increase the occurrence size of a Walgreens Investor Rights Step-Up Event, the Board shall promptly to accommodate such designees. For so long as Baupost or its Affiliates own twenty percent (and in any case within ten (1020%) Business Days) after receiving a Walgreens Investor Rights Step-Up Event Notice take all action necessary (including by amending the organizational documents or more of the Company’s outstanding Common Stock (on an as-converted and as-exercised basis, if necessaryassuming Stockholder Approval has been obtained and without regard to the Trigger Date (as defined in the Indenture)), the Company shall nominate and recommend both Baupost Designees (or such successor or replacement designated by Baupost) in the Company’s proxy statement at each Annual Meeting at which the Baupost Designees’ terms are set to cause expire. For so long as Baupost or its Affiliates own ten percent (10%) or more of the Company’s outstanding Common Stock (on an as-converted and as-exercised basis, assuming Stockholder Approval has been obtained and without regard to the Trigger Date (as defined in the Indenture)), the Company shall nominate and recommend one Baupost Designee (1or such successor or replacement designated by Baupost) additional Walgreens in the Company’s proxy statement at each Annual Meeting at which the Baupost Designee’s term is set to expire. The Company shall take all actions necessary to ensure there are vacancies on the Board as of the effectiveness of this Agreement to permit the appointment of the Baupost Designees. In the event no Baupost Designee is designated with respect to any meeting, the person then in office as such designee shall be presumed to be appointed the applicable designee. The Company shall cause the Baupost Designees to be included in the slate of nominees presented by the Board to the Board, stockholders of the Company for election as directors at the relevant annual meeting of the stockholders and shall solicit proxies in favor of the election of such that the Board persons. The Company shall have two (2) Walgreens Directors.
(c) During the Walgreens Investor Rights Period, subject to the other provisions of this Section 1.1, including Section 1.1(d), and Section 1.2, at each annual or special meeting not solicit proxies of the stockholders of the Company at which directors to vote against any Baupost Designee or for the approval of any stockholder or other proposals that are inconsistent with the rights afforded pursuant to this Section 4.1 and will take no action that is inconsistent with the objective of having the Baupost Designees serve on the Board. For so long as any Baupost Designee has the right to be elected nominated pursuant to this Section 4.1, such designee shall have the right to serve on each committee of the Board, unless otherwise prohibited by law or applicable stock exchange rules. In the event of the death, resignation, or removal from office of a Baupost Designee for any reason, Baupost may appoint another person as the Baupost Designee to fill the vacancy created thereby and the Company shall take all actions necessary to appoint such individual to the Board, . If there is a vacancy on the Company will nominate and use its reasonable best efforts (which shall, subject Board as a result of a Baupost Designee’s failure to Applicable Law, include including in any proxy statement used by obtain the Company to solicit the vote of its stockholders in connection with any such meeting the recommendation requisite approval of the Board that Company’s stockholders of the Company vote in favor of the slate of directors) to cause the election to the Board of a slate of directors that includes (i) during the Walgreens Enhanced Investor Rights Period, two (2) Walgreens Designees or (ii) otherwise, one (1) Walgreens Designee.
(d) WBA shall notify the Company of the identity of any proposed Walgreens Designee, in writing, on or before the time such information is reasonably requested by the Board or the Governance and Nominating Committee for inclusion in a proxy statement for a meeting of stockholders, together with all information about such proposed Walgreens Designee as shall be reasonably requested by the Board or the Governance and Nominating Committee (including, at a minimum, any information regarding such proposed Walgreens Designee to the extent required by applicable securities laws or for any other person nominated necessary for election to the Board).
(e) Subject to Section 1.1(d) and Section 1.2, so long as no Walgreens Investor Rights Termination Event has occurred, in the event of (i) the death, disability, removal or resignation of a Walgreens Director, the Board will promptly appoint as a replacement Walgreens Director the Walgreens Designee designated by WBA to fill the resulting vacancy, or (ii) the failure of a Walgreens Designee to be elected to the Board at any annual or special meeting of the stockholders Company’s stockholders, and where no other individual is elected to fill such vacancy, Baupost shall have the right to designate another Baupost Designee to fill such vacancy, and the Company shall take all actions necessary to appoint such individual to the Board. During the period that a Baupost Designee is a director of the Company at which Board, such Walgreens Designee stood for election but was nevertheless not elected (such Walgreens Designeedirector shall be entitled to the same benefits, a “Walgreens Specified Designee”), the Board will promptly appoint another Walgreens Designee designated including benefits under any director and officer indemnification or insurance policy maintained by WBA to serve in lieu of such Walgreens Specified Designee as a Walgreens Director during the term that such Walgreens Specified Designee would have served had such Walgreens Specified Designee been elected at such meeting of the stockholders of the Company, and, in each case of clause (i) and clause (ii), such individual shall then be deemed a Walgreens Director for all purposes hereunder. Neither the Company nor the Board will remove as any Walgreens Director without the prior written consent of WBA, unless such Walgreens Director is no longer eligible for designation as a member of the Board pursuant to Section 1.2 or to the extent necessary to remedy a breach of Section 1.5.
(f) The Company will at all times provide each Walgreens Director (in his or her capacity as a member of the Board) with the same rights to indemnification and exculpation that it provides to the other members director of the Board. The Company acknowledges During the period between the effectiveness of this Agreement and agrees that any such indemnification obligations to indemnify the date Baupost or advance expenses to each Walgreens Director, in his or her capacity as such, for the matters covered by such indemnification obligations, shall be the primary source its Affiliates have ownership of indemnification and advancement less than ten percent (10%) of such Walgreens Director in connection therewith, and any obligation on the part of any Investor Indemnitor under any Investor Indemnification Agreement to indemnify or advance expenses to such Walgreens Director shall be secondary to the Company’s obligation outstanding Common Stock (on an as-converted and as-exercised basis, assuming Stockholder Approval has been obtained and without regard to the Trigger Date (as defined in the Indenture)), Baupost shall have the right to appoint one (1) non-voting board observer (the “Baupost Observer”) who shall (a) have the right to attend and participate in all meetings of the Board and committees of the Board and (b) be reduced by any amount that such Walgreens Director may collect as indemnification or advancement from the Company. In the event entitled to receive copies of all notices, minutes, consents, and other materials that the Company fails provides to indemnify or advance expenses to each Walgreens Director its directors at the same time and in the same manner as required by such indemnification obligations and this Agreement (such unpaid amounts, the “Unpaid Indemnitee Amounts”), and any Investor Indemnitor makes any payment provided to such Walgreens Director in respect directors, provided, that a majority of indemnification or advancement the members of expenses under any Investor Indemnification Agreement on account of such Unpaid Indemnitee Amounts, such Investor Indemnitor the Board shall be subrogated entitled to exclude the Baupost Observer from portions of any meeting of the Board or committee thereof and to redact portions of any materials delivered to such Baupost Observer when and to the rights extent that such majority determines in good faith that (i) such exclusion or redaction is reasonably necessary to preserve attorney-client privilege with respect to a matter that is material to the business of the Company or (ii) there exists, with respect to any deliberation or materials, a conflict of interest between such Walgreens Director under this Agreement in respect of such Unpaid Indemnitee AmountsBaupost Observer and the Company.
Appears in 1 contract
Samples: Investor Rights Agreement (Orexigen Therapeutics, Inc.)
