Designation of Director. 2.1 On the Closing Date, Xxxxx Xxx (the “Designated Director”) shall be added to the Board to fill an existing vacancy on the Board. To the extent that the Designated Director is not appointed to the Board on the Closing Date, the Board shall promptly thereafter (and in any event within five (5) Business Days of the Closing Date) fill an existing vacancy on the Board with the Designated Director and if no such vacancy exists, the Board shall be expanded by one (1) director to create a vacancy, which shall be filled with the Designated Director. 2.2 If Xx. Xxx (or any successor Designated Director) shall at any time cease to be affiliated with Xxxx Xxxxxxxx or any Affiliates or Related Funds thereof, or shall cease to be able to serve on the Board by reason of his resignation, death, incapacity, disability, disqualification or removal, or as a result of a conflict of interest, but not as a result of the Designated Director’s failure to be re-elected by the stockholders of Emergent, then Xxxx Xxxxxxxx shall be entitled to nominate a new individual to serve as a member of the Board and the Board shall fill the vacancy created by such departed Designated Director with such nominated individual, provided that such nominated individual satisfies the requirements set forth in Section 2.4. Any such nominated individual shall be deemed to be the Designated Director hereunder. For so long as (x) PJC has the right to designate three (3) directors pursuant to the Board Rights Agreement among Emergent, PJC and the Investors party thereto, dated as of the date hereof (the “PJC Board Rights Agreement”) and (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) at least 15.00% (the “Specified Percentage”) of the original principal amount of the New Senior Notes issued by Emergent to Xxxx Xxxxxxxx on the Closing Date (the “Xxxx Xxxxxxxx New Senior Notes”), Xxxx Xxxxxxxx shall have the right to designate a Designated Director as provided in the first sentence of this Section 2.2, and the Board shall, subject to Section 2.4 below, recommend at each meeting of stockholders at which a Designated Director is to be elected to include a Designated Director as one of the Board’s nominees for election to the Board or to fill a vacancy left by a departed Designated Director, in each case in order to have a Designated Director on the Board. The Board shall not take any action which is inconsistent with making such recommendation. In the event that the stockholders do not elect a Designated Director at a meeting of stockholders at which such Designated Director is nominated for election, then, promptly after such meeting of stockholders (and in any event within ten (10) Business Days of such meeting of stockholders), Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such event as provided in the first sentence of this Section 2.2; provided, that if (a) the nominated Designated Director is not elected at such meeting of stockholders and (b) there is no vacancy on the Board following the election of directors at such meeting of stockholders, then the Board shall be expanded by one (1) director and Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such Board expansion as provided in the first sentence of this Section 2.2. 2.3 If (x) PJC no longer has the right to designate three (3) directors pursuant to the PJC Board Rights Agreement or (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) less than the Specified Percentage of the original principal amount of the Xxxx Xxxxxxxx New Senior Notes, Xxxx Xxxxxxxx’x right to designate a Designated Director shall terminate and the Designated Director shall, and Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon request of Emergent, submit his or her resignation to the Board. 2.4 Notwithstanding anything to the contrary herein, it shall be a condition precedent to any Designated Director’s service on the Board, whether in order to fill a vacancy on the Board or following an election to the Board, that such Designated Director shall, in the reasonable judgment of the Board, (a) have the requisite skill and experience to serve as a director of a publicly traded company, (b) not be prohibited or disqualified from serving as a director of Emergent pursuant to (i) any applicable rule or regulation of the SEC, (ii) any applicable rule or regulation imposed by any exchange on which Emergent’s common stock is traded or (iii) any applicable law, and (c) qualify as an independent director under any applicable SEC and exchange requirements, rules and interpretations. The Board will adopt standards of skill and experience desired of potential candidates for nomination to the Board, which will be reflected in a charter of a committee of the Board or other similar document. The Parties agree that Xx. Xxx shall be deemed to satisfy the standards of skill and experience desired of potential candidates for nomination to the Board. Xxxx Xxxxxxxx agrees to timely provide Emergent with accurate and complete information relating to a prospective Designated Director that may be required to be considered by the Board or disclosed by Emergent under applicable exchange listing requirements or the Securities Act of 1933, as amended, the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In addition, at Emergent’s request, Xxxx Xxxxxxxx shall cause its Designated Director to complete and execute Emergent’s standard Director and Officer Questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by Emergent. Nothing in this Agreement will prevent or prohibit the Board from removing a Designated Director from the Board in accordance with Emergent’s Bylaws (as then in effect). If a Designated Director is removed from the Board in accordance with the immediately preceding sentence, Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2. 2.5 As compensation for his or her service on the Board, the Designated Director shall receive compensation from Emergent that is consistent with the compensation of other similarly situated members of the Board. 2.6 Each Designated Director shall use reasonable efforts to obtain any necessary approvals from the State of Florida Office of Insurance Regulation in connection with such Designated Director’s service on the Board. If a Designated Director does not obtain any such necessary approvals from the State of Florida Office of Insurance Regulation within one hundred (100) days of the commencement of such Designated Director’s service on the Board, Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon the request of Emergent, submit his or her resignation to the Board. If a Designated Director resigns from the Board pursuant to this Section 2.6, the Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2. Emergent shall reimburse the Designated Director for all reasonable costs and expenses of the Designated Director incurred in connection with obtaining any necessary approvals from the State of Florida Office of Insurance Regulation pursuant to this Agreement. 2.7 Emergent shall provide customary director and officer indemnity insurance on the same terms as provided to other directors and officers of Emergent in effect from time to time and subject to the conditions and terms thereof, and Emergent further agrees that it shall enter into a customary indemnification agreement with any Designated Director. Emergent hereby acknowledges that any director, officer or other indemnified person covered by such policy (any such persons, an “Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Xxxx Xxxxxxxx and/or or one or more of its Related Funds or Affiliates (the “Indemnitors”). To the extent permitted under Applicable Law, Emergent hereby (i) agrees that Emergent or any subsidiary of Emergent that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this agreement or any other agreement between Emergent and the Indemnitee, without regard to any rights an Indemnitee may have against the Indemnitors or their insurers, and (iii) irrevocably waives, relinquishes and releases the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. To the extent permitted under Applicable Law, Emergent further agrees that no advancement or payment by the Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from Emergent, as the case may be, shall affect the foregoing and the Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against Emergent.
Appears in 2 contracts
Samples: Designation Agreement (Hua James), Designation Agreement (Emergent Capital, Inc.)
Designation of Director. 2.1 On Upon the Closing Datedate of termination of the Ironsides Agreement in accordance with its terms (such date, Xxxxx Xxx (the “Designated DirectorIronsides Agreement Termination Date”) shall be added to the Board to fill an existing vacancy on the Board. To the extent that the Designated Director is not appointed to the Board on the Closing Date), the Board Emergent shall promptly thereafter (and in any event within five (5) Business Days of such termination) provide a notice to Nantahala of such termination.
(a) If, on the Closing Ironsides Agreement Termination Date, the Ironsides Designee has resigned from the Board, the Board shall fill the vacancy on its Board created by the resignation of the Ironsides Designee with an individual designated by Nantahala (the “Designated Director”) promptly after such Designated Director satisfies the requirements set forth in Section 2.4. If the Ironsides Designee resigns from the Board after the Ironsides Agreement Termination Date but on a date prior to the expiration of the Ironsides Designee’s then current term on the Board, the Board shall fill an existing the vacancy on the Board created by such resignation of the Ironsides Designee with the Designated Director and if no promptly after such vacancy existsDesignated Director satisfies the requirements set forth in Section 2.4.
(b) If, on or after the Ironsides Agreement Termination Date, the Ironsides Designee does not resign from the Board prior to the expiration of the Ironsides Designee’s then current term on the Board, upon the expiration of the Ironsides Designee’s term on the Board, Nantahala shall be expanded entitled to nominate an individual to serve on the Board and the Board shall, consistent with the reasonable exercise of its fiduciary duties, and subject to the requirements set forth in Section 2.4, recommend to include such individual as one of the Board’s nominees for election to the Board to fill the vacancy left by one (1) director to create a vacancy, which the departing Ironsides Designee. Such individual nominated by Nantahala shall be filled with deemed to be the Designated DirectorDirector hereunder.
2.2 If Xx. Xxx (or If, during the period when Nantahala is entitled to designate a Designated Director pursuant to this Section 2.2, any successor Designated Director) shall at any time cease to be affiliated with Xxxx Xxxxxxxx or any Affiliates or Related Funds thereof, or Director shall cease to be able to serve on the Board by reason of his resignation, death, incapacity, disability, disqualification or removal, or as a result of a conflict of interest, but not as a result of the Designated Director’s failure to be re-elected by the stockholders of Emergent, then Xxxx Xxxxxxxx Nantahala shall be entitled to nominate a new individual to serve as a member of the Board and the Board shall fill the vacancy created by such departed Designated Director with such nominated individual, provided that such nominated individual satisfies the requirements set forth in Section 2.4. Any such nominated individual shall be deemed to be the Designated Director hereunder. For After the Ironsides Agreement Termination Date, for so long as (x) PJC has the right to designate three (3) directors pursuant to the Board Rights Agreement among Emergent, PJC and the Investors party thereto, dated as of the date hereof (the “PJC Board Rights Agreement”) and (y) Xxxx Xxxxxxxx Nantahala and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) at least 15.0010.00% (the “Specified Percentage”) of the original principal amount of the New Senior Convertible Notes issued by Emergent to Xxxx Xxxxxxxx on the Closing Date (the “Xxxx Xxxxxxxx New Senior Notes”)Date, Xxxx Xxxxxxxx Nantahala shall have the right to designate a Designated Director as provided in the first sentence of this Section 2.2, and the Board shall, subject to Section 2.4 below, recommend at each meeting of stockholders at which a Designated Director is to be elected to include a Designated Director as one of the Board’s nominees for election to the Board or to fill a vacancy left by a departed Designated Director, in each case in order to have a Designated Director on the Board. The Board shall not take any action which is inconsistent with making such recommendation. In the event that the stockholders do not elect a Designated Director at a meeting of stockholders at which such Designated Director is nominated for election, then, promptly after such meeting of stockholders (and in any event within ten (10) Business Days of such meeting of stockholders), Xxxx Xxxxxxxx Nantahala shall have the right to designate a new Designated Director to fill the vacancy created by such event as provided in the first sentence of this Section 2.2; provided, that if (a) the nominated Designated Director is not elected at such meeting of stockholders and (b) there is no vacancy on the Board following the election of directors at such meeting of stockholders, then the Board shall be expanded by one one
(1) director and Xxxx Xxxxxxxx Nantahala shall have the right to designate a new Designated Director to fill the vacancy created by such Board expansion as provided in the first sentence of this Section 2.2.
2.3 If (x) PJC no longer has the right to designate three (3) directors pursuant to the PJC Board Rights Agreement or (y) Xxxx Xxxxxxxx Nantahala and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) less than the Specified Percentage of the original principal amount of the Xxxx Xxxxxxxx New Senior NotesConvertible Notes issued on the Closing Date, Xxxx Xxxxxxxx’x Nantahala’s right to designate a Designated Director shall terminate and the Designated Director shall, and Xxxx Xxxxxxxx Nantahala shall cause the Designated Director to, promptly upon request of Emergent, submit his or her resignation to the Board.
2.4 Notwithstanding anything to the contrary herein, it shall be a condition precedent to any Designated Director’s service on the Board, whether in order to fill a vacancy on the Board or following an election to the Board, that such Designated Director shall, in the reasonable judgment of the Board, (a) have the requisite skill and experience to serve as a director of a publicly traded company, (b) not be prohibited or disqualified from serving as a director of Emergent pursuant to (i) any applicable rule or regulation of the SEC, (ii) any applicable rule or regulation imposed by any exchange on which the Emergent’s common stock is traded or (iii) any applicable law, and (c) qualify as an independent director under any applicable SEC and exchange requirements, rules and interpretations. The Board will adopt standards of skill and experience desired of potential candidates for nomination to the Board, which will be reflected in a charter of a committee of the Board or other similar document. The Parties agree that Xx. Xxx shall be deemed to satisfy the standards of skill and experience desired of potential candidates for nomination to the Board. Xxxx Xxxxxxxx Nantahala agrees to timely provide Emergent with accurate and complete information relating to a prospective Designated Director that may be required to be considered by the Board or disclosed by Emergent under applicable exchange listing requirements or the Securities Act of 1933, as amended, the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In addition, at Emergent’s request, Xxxx Xxxxxxxx Nantahala shall cause its Designated Director to complete and execute Emergent’s standard Director and Officer Questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by Emergent. Nothing in this Agreement will prevent or prohibit the Board from removing a Designated Director from the Board in accordance with Emergent’s Bylaws (as then in effect). If a Designated Director is removed from the Board in accordance with the immediately preceding sentence, Xxxx Xxxxxxxx Nantahala shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2.
2.5 As compensation for his or her service on the Board, the Designated Director shall receive compensation from Emergent that is consistent with the compensation of other similarly situated members of the Board.
2.6 Each Designated Director shall use reasonable efforts to obtain any necessary approvals from the State of Florida Office of Insurance Regulation in connection with such Designated Director’s service on the Board. If a Designated Director does not obtain any such necessary approvals from the State of Florida Office of Insurance Regulation within one hundred (100) days of the commencement of such Designated Director’s service on the Board, Xxxx Xxxxxxxx Nantahala shall cause the such Designated Director to, promptly upon the request of Emergent, submit his or her resignation to the Board. If a Designated Director resigns from the Board pursuant to this Section 2.6, the Xxxx Xxxxxxxx Nantahala shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2. Emergent shall reimburse the Designated Director for all reasonable costs and expenses of the Designated Director incurred in connection with obtaining any necessary approvals from the State of Florida Office of Insurance Regulation pursuant to this Agreement.
2.7 Emergent shall provide customary director and officer indemnity insurance on the same terms as provided to other directors and officers of Emergent in effect from time to time and subject to the conditions and terms thereof, and Emergent further agrees that it shall enter into a customary indemnification agreement with any Designated Director. Emergent hereby acknowledges that any director, officer or other indemnified person covered by such policy (any such persons, an “Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Xxxx Xxxxxxxx Nantahala and/or or one or more of its Related Funds or Affiliates (the “Indemnitors”). To the extent permitted under Applicable Law, Emergent hereby (i) agrees that Emergent or any subsidiary of Emergent that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this agreement or any other agreement between Emergent and the Indemnitee, without regard to any rights an Indemnitee may have against the Indemnitors or their insurers, and (iii) irrevocably waives, relinquishes and releases the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. To the extent permitted under Applicable Law, Emergent further agrees that no advancement or payment by the Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from Emergent, as the case may be, shall affect the foregoing and the Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against Emergent.
Appears in 1 contract
Designation of Director. 2.1 On the Closing Date, Xxxxxx Xxxxx Xxx (the “Designated Director”) shall be added to the Board to fill an existing vacancy on the Board. To the extent that the Designated Director is not appointed to the Board on the Closing Date, the Board shall promptly thereafter (and in any event within five (5) Business Days of the Closing Date) fill an existing vacancy on the Board with the Designated Director and if no such vacancy exists, the Board shall be expanded by one (1) director to create a vacancy, which shall be filled with the Designated Director.
2.2 If Xx. Xxx Xxxxx (or any successor Designated Director) shall at any time cease to be affiliated with Xxxx Xxxxxxxx the Ironsides Funds or any Affiliates or Related Funds thereof, or shall cease to be able to serve on the Board by reason of his resignation, death, incapacity, disability, disqualification or removal, or as a result of a conflict of interest, but not as a result of the Designated Director’s failure to be re-elected by the stockholders of Emergent, then Xxxx Xxxxxxxx the Ironsides Funds shall be entitled to nominate a new individual to serve as a member of the Board and the Board shall fill the vacancy created by such departed Designated Director with such nominated individual, provided that such nominated individual satisfies the requirements set forth in Section 2.4. Any such nominated individual shall be deemed to be the Designated Director hereunder. For so long as (x) PJC has the right to designate three (3) directors pursuant to the Board Rights Agreement among Emergent, PJC and the Investors party thereto, dated as of the date hereof (the “PJC Board Rights Agreement”) and (y) Xxxx Xxxxxxxx Ironsides Funds and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) at least 15.00% (the “Specified Percentage”) of the original principal amount of the New Senior Convertible Notes issued by Emergent to Xxxx Xxxxxxxx on the Closing Date (Date, the “Xxxx Xxxxxxxx New Senior Notes”), Xxxx Xxxxxxxx Ironsides Funds shall have the right to designate a Designated Director as provided in the first sentence of this Section 2.2, and the Board shall, subject to Section 2.4 below, recommend at each meeting of stockholders at which a Designated Director is to be elected to include a Designated Director as one of the Board’s nominees for election to the Board or to fill a vacancy left by a departed Designated Director, in each case in order to have a Designated Director on the Board. The Board shall not take any action which is inconsistent with making such recommendation. In the event that the stockholders do not elect a Designated Director at a meeting of stockholders at which such Designated Director is nominated for election, then, promptly after such meeting of stockholders (and in any event within ten (10) Business Days of such meeting of stockholders), Xxxx Xxxxxxxx the Ironsides Funds shall have the right to designate a new Designated Director to fill the vacancy created by such event as provided in the first sentence of this Section 2.2; provided, that if (a) the nominated Designated Director is not elected at such meeting of stockholders and (b) there is no vacancy on the Board following the election of directors at such meeting of stockholders, then the Board shall be expanded by one (1) director and Xxxx Xxxxxxxx the Ironsides Funds shall have the right to designate a new Designated Director to fill the vacancy created by such Board expansion as provided in the first sentence of this Section 2.2.
2.3 If (x) PJC no longer has the right to designate three (3) directors pursuant to the PJC Board Rights Agreement or (y) Xxxx Xxxxxxxx Ironsides Funds and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) less than the Specified Percentage of the original principal amount of the Xxxx Xxxxxxxx New Senior NotesConvertible Notes issued on the Closing Date, Xxxx Xxxxxxxx’x the Ironsides Funds’ right to designate a Designated Director shall terminate and the Designated Director shall, and Xxxx Xxxxxxxx the Ironsides Funds shall cause the Designated Director to, promptly upon request of Emergent, submit his or her resignation to the Board.
2.4 Notwithstanding anything to the contrary herein, it shall be a condition precedent to any Designated Director’s service on the Board, whether in order to fill a vacancy on the Board or following an election to the Board, that such Designated Director shall, in the reasonable judgment of the Board, (a) have the requisite skill and experience to serve as a director of a publicly traded company, (b) not be prohibited or disqualified from serving as a director of Emergent pursuant to (i) any applicable rule or regulation of the SEC, (ii) any applicable rule or regulation imposed by any exchange on which the Emergent’s common stock is traded or (iii) any applicable law, and (c) qualify as an independent director under any applicable SEC and exchange requirements, rules and interpretations. The Board will adopt standards of skill and experience desired of potential candidates for nomination to the Board, which will be reflected in a charter of a committee of the Board or other similar document. The Parties agree that Xx. Xxx Xxxxx shall be deemed to satisfy the standards of skill and experience desired of potential candidates for nomination to the Board. Xxxx Xxxxxxxx agrees The Ironsides Funds agree to timely provide Emergent with accurate and complete information relating to a prospective Designated Director that may be required to be considered by the Board or disclosed by Emergent under applicable exchange listing requirements or the Securities Act of 1933, as amended, the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In addition, at Emergent’s request, Xxxx Xxxxxxxx the Ironsides Funds shall cause its their Designated Director to complete and execute Emergent’s standard Director and Officer Questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by Emergent. Nothing in this Agreement will prevent or prohibit the Board from removing a Designated Director from the Board in accordance with Emergent’s Bylaws (as then in effect). If a Designated Director is removed from the Board in accordance with the immediately preceding sentence, Xxxx Xxxxxxxx the Ironsides Funds shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2.
2.5 As compensation for his or her service on the Board, the Designated Director shall receive compensation from Emergent that is consistent with the compensation of other similarly situated members of the Board.
2.6 Each Designated Director shall use reasonable efforts to obtain any necessary approvals from the State of Florida Office of Insurance Regulation in connection with such Designated Director’s service on the Board. If a Designated Director does not obtain any such necessary approvals from the State of Florida Office of Insurance Regulation within one hundred (100) days of the commencement of such Designated Director’s service on the Board, Xxxx Xxxxxxxx the Ironsides Funds shall cause the Designated Director to, promptly upon the request of Emergent, submit his or her resignation to the Board. If a Designated Director resigns from the Board pursuant to this Section 2.6, the Xxxx Xxxxxxxx Ironsides Funds shall have the right to designate a new Designated Director to fill the vacancy created by such Board removal as provided in the first sentence of Section 2.2. Emergent shall reimburse the Designated Director for all reasonable costs and expenses of the Designated Director incurred in connection with obtaining any necessary approvals from the State of Florida Office of Insurance Regulation pursuant to this Agreement.
2.7 Emergent shall provide customary director and officer indemnity insurance on the same terms as provided to other directors and officers of Emergent in effect from time to time and subject to the conditions and terms thereof, and Emergent further agrees that it shall enter into a customary indemnification agreement with any Designated Director. Emergent hereby acknowledges that any director, officer or other indemnified person covered by such policy (any such persons, an “Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Xxxx Xxxxxxxx Ironsides Funds and/or or one or more of its Related Funds or Affiliates (the “Indemnitors”). To the extent permitted under Applicable Law, Emergent hereby (i) agrees that Emergent or any subsidiary of Emergent that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this agreement or any other agreement between Emergent and the Indemnitee, without regard to any rights an Indemnitee may have against the Indemnitors or their insurers, and (iii) irrevocably waives, relinquishes and releases the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. To the extent permitted under Applicable Law, Emergent further agrees that no advancement or payment by the Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from Emergent, as the case may be, shall affect the foregoing and the Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against Emergent.
Appears in 1 contract
Designation of Director. 2.1 On (i) The Investor Holders, collectively, shall be entitled to designate one Director to the Closing DateBoard upon the terms and subject to the conditions of this Section 3.3(a) and the second sentence of Section 3.3(b).
(ii) Except as provided in Section 3.3(a)(iv) and (a)(v) or as required by applicable Law, Xxxxx Xxx no Director designated pursuant to this Section 3.3(a) may be removed from office (whether or not for cause) unless such removal is directed or approved by the Investor Holders.
(iii) Upon the death, disability, retirement, resignation or other removal by the Investor Holders of the Director designated by the Investor Holders, the Board shall appoint as a Director to fill the vacancy so created with an individual designated by the Investor Holders.
(iv) If the Investor Shares held by the Investor Holders (including, for the avoidance of doubt, any issued Warrant Shares held by the Initial Holder) (the “Designated DirectorNumerator Shares”) shall be added represents less than 4% (as adjusted pursuant to the Board last sentence of this Section 3.3(a)(iv), the “Threshold Percentage”) of the sum of (x) Voting Shares (including, for the avoidance of doubt, Investor Shares and issued Warrant Shares) and (y) the Conversion Shares issuable to fill an existing vacancy any DFR Holdings Holder upon the conversion of the aggregate amount of Convertible Notes then outstanding (the “Denominator Shares”), in each case, calculated as of the close of business on the Boardlast Trading Day of the month immediately prior to the date on which the Nominating Committee designates the Independent Director nominees for election at the relevant stockholder meeting, the Investor Holders shall not be entitled to designate a Director. To the extent that the Designated Director is not appointed to the Board on the Closing Date, the Board shall promptly thereafter (and in any event within five (5) Business Days of the Closing Date) fill an existing vacancy on the Board with the Designated Director and if no such vacancy exists, the Board shall be expanded by one (1) director to create a vacancy, which shall be filled with the Designated Director.
2.2 If Xx. Xxx (or any successor Designated Director) shall at any time Investor Holders cease to be affiliated with Xxxx Xxxxxxxx or any Affiliates or Related Funds thereof, or shall cease to be able to serve on the Board by reason of his resignation, death, incapacity, disability, disqualification or removal, or as a result of a conflict of interest, but not as a result of the Designated Director’s failure to be re-elected by the stockholders of Emergent, then Xxxx Xxxxxxxx shall be entitled to nominate a new individual to serve as a member of the Board and the Board shall fill the vacancy created by such departed Designated Director with such nominated individual, provided that such nominated individual satisfies the requirements set forth in Section 2.4. Any such nominated individual shall be deemed to be the Designated Director hereunder. For so long as (x) PJC has the right to designate three (3) directors pursuant to the Board Rights Agreement among Emergent, PJC and the Investors party thereto, dated as of the date hereof (the “PJC Board Rights Agreement”) and (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) at least 15.00% (the “Specified Percentage”) of the original principal amount of the New Senior Notes issued by Emergent to Xxxx Xxxxxxxx on the Closing Date (the “Xxxx Xxxxxxxx New Senior Notes”), Xxxx Xxxxxxxx shall have the right to designate a Designated Director, if requested by a majority of the Directors then serving on the Board (other than the Director designated by the Investor Holders), the Investor Holders shall promptly take all necessary action to procure the resignation of their designated Director; provided, that the Investor Holders shall not be required to cause their designated Director to resign in accordance with this Section 3.3(a)(iv) as provided a result of a dilution of the Investor Shares (other than dilution resulting from the issuance of New Shares) unless and until the Company complies with procedures in Section 3.3(a)(v) below. If the Initial Holder exercises all or any portion of the Warrant from time to time, the Threshold Percentage shall automatically increase to an amount equal to (A) 4%, plus (B) the aggregate number of Warrant Shares issued upon the exercise of the Investor Warrant by the Initial Holder, divided by (C) the total number of Warrant Shares issuable under the Investor Warrant as of the date hereof; provided, that for the avoidance of doubt, the Threshold Percentage shall not exceed 5%.
(v) Notwithstanding anything in Section 3.3(a)(iv) to the contrary, if the Numerator Shares represent a percentage of the Denominator Shares that is less than the Threshold Percentage as a result of dilution of the Investor Shares, other than dilution resulting from the issuance of New Shares, the Company shall deliver a written notice to the Investor Holders of such dilution event (the “Dilution Notice”). If (A) within twenty (20) days following receipt of the Dilution Notice, the Investor Holders give the Company a written notice of their intention to acquire, directly or indirectly, an amount of Voting Shares or other Shares, such that immediately following such acquisition the Numerator Shares represent a percentage of Denominator Shares equal to the Threshold Percentage of the Denominator Shares (a “Cure Purchase”) within ninety (90) days of the Company’s receipt of the Dilution Notice (the “Cure Period”) and (B) the Cure Purchase is consummated during the Cure Period, then the Investor Holders shall not be required to cause their designated Director to resign in accordance with Section 3.3(a)(iv).
(vi) The Company shall cause each individual designated in accordance with Section 3.3(a)(i) to be included in the first sentence Board’s “slate” of this Section 2.2, and nominees for the Board shall, subject to Section 2.4 below, recommend at each applicable meeting of stockholders at which a Designated Director is and shall use commercially reasonable best efforts to be elected solicit from its Stockholders eligible to include a Designated Director as one vote for the election of Directors proxies (A) in favor of the Board’s nominees for election of such individuals and (B) against removal of each such individual (to the Board or to fill extent such individual is serving as a vacancy left by a departed Designated Director, in each case in order to have a Designated Director on the Board. The Board shall not take any action which is inconsistent with making such recommendation). In the event that that, notwithstanding the stockholders do not elect a Designated Director at a meeting of stockholders at which foregoing, such Designated Director is nominated for election, then, promptly after such meeting of stockholders (and in any event within ten (10) Business Days of such meeting of stockholders), Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such event as provided in the first sentence of this Section 2.2; provided, that if (a) the nominated Designated Director individual is not elected at such meeting of stockholders and to, or is removed from (bother than by the Investor Holders) there is no the Board, the Company shall create a vacancy on the Board following and appoint such individual to fill such vacancy.
(vii) Until the first annual meeting of Stockholders of the Company for the election of directors at such meeting Directors held after the first anniversary of stockholdersthis Agreement, then the Director designated by the Investor Holders shall receive no compensation or benefits, other than reimbursement for travel, lodging and related expenses incurred in connection with meetings of the Board or any committee thereof, or otherwise in service as a Director or member of the boards of directors of the Company or any of its Subsidiaries in accordance with the Company’s policies applicable to the other outside directors. Thereafter, the compensation and benefits of such Director shall be expanded by one (1) director determined with the approval of a majority of the Board and Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such Board expansion as provided in the first sentence majority of this Section 2.2Independent Directors.
2.3 If (xviii) PJC no longer has the right to designate three (3) directors pursuant to the PJC Board Rights Agreement or (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) less than the Specified Percentage of the original principal amount of the Xxxx Xxxxxxxx New Senior Notes, Xxxx Xxxxxxxx’x right to designate a Designated Director shall terminate and the Designated Director shall, and Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon request of Emergent, submit his or her resignation to the Board.
2.4 Notwithstanding anything to the contrary hereinin Section 3.3(a)(vii), it the Company shall to the maximum extent permitted under applicable Law, indemnify and provide for the advancement of expenses to the Director designated by the Investor Holders, from and against any and all losses which may be a condition precedent imposed on, incurred by, or asserted against such Director in any way relating to any Designated or arising out of, or alleged to relate to or arise out of, the Director’s service on the Board, whether in order to fill a vacancy on the Board or following an election that capacity pursuant to the Board, that such Designated Director shall, Company’s Constituent Documents and an indemnification agreement in the reasonable judgment form heretofore provided to the Investor.
(ix) The Director designated by the Investor Holders shall be covered by the directors’ and officers’ liability insurance and fiduciary liability insurance carried by the Company.
(x) No Investor Holder, nor any Affiliate of any Investor Holder, shall have any liability as a result of designating an individual for election as a Director for any act or omission by such designated individual in his or her capacity as a Director of the BoardCompany, (a) nor shall any Investor Holder have the requisite skill and experience to serve any liability as a director result of a publicly traded company, (b) not be prohibited or disqualified from serving as a director of Emergent pursuant to (i) voting for any applicable rule or regulation of the SEC, (ii) any applicable rule or regulation imposed by any exchange on which Emergent’s common stock is traded or (iii) any applicable law, and (c) qualify as an independent director under any applicable SEC and exchange requirements, rules and interpretations. The Board will adopt standards of skill and experience desired of potential candidates for nomination to the Board, which will be reflected in a charter of a committee of the Board or other similar document. The Parties agree that Xx. Xxx shall be deemed to satisfy the standards of skill and experience desired of potential candidates for nomination to the Board. Xxxx Xxxxxxxx agrees to timely provide Emergent with accurate and complete information relating to a prospective Designated Director that may be required to be considered by the Board or disclosed by Emergent under applicable exchange listing requirements or the Securities Act of 1933, as amended, the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In addition, at Emergent’s request, Xxxx Xxxxxxxx shall cause its Designated Director to complete and execute Emergent’s standard Director and Officer Questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by Emergent. Nothing in this Agreement will prevent or prohibit the Board from removing a Designated Director from the Board in accordance with Emergent’s Bylaws (as then in effect). If a Designated Director is removed from the Board designee in accordance with the immediately preceding sentence, Xxxx Xxxxxxxx provisions of this Agreement.
(xi) Any Person designated as a Director pursuant to Section 3.3(a)(i) by the Investor Holders shall have be subject to satisfaction of the requirements of applicable Law and corporate governance policies adopted by the Board.
(xii) The Investor Holders may waive their right to designate a new Designated Director under this Section 3.3 at any time by delivering written notice of such waiver to fill the vacancy created by Company in accordance with Section 5.4; provided, however, that the Investor Holders shall not be entitled to rescind any such Board removal as provided in the first sentence of Section 2.2.
2.5 As compensation for his or her service on the Board, the Designated Director shall receive compensation from Emergent that is consistent with the compensation of other similarly situated members of the Board.
2.6 Each Designated Director shall use reasonable efforts to obtain any necessary approvals from the State of Florida Office of Insurance Regulation in connection with such Designated Director’s service on the Boardwaiver once delivered. If a Designated Director does not obtain any such necessary approvals from the State of Florida Office of Insurance Regulation within one hundred (100) days of the commencement of such Designated Director’s service on the Board, Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon the request of Emergent, submit his or her resignation to the Board. If a Designated Director resigns from the Board pursuant to this Section 2.6, the Xxxx Xxxxxxxx shall have the Investor Holders otherwise lose their right to designate a new Designated Director pursuant to fill Section 3.3(a)(iv) and (a)(v), the vacancy created by Investor Holders shall not be entitled to regain their right to designate such Board removal as provided in Director, even if the first sentence of Section 2.2. Emergent shall reimburse the Designated Director for all reasonable costs and expenses Numerator Shares represent a percentage of the Designated Director incurred in connection with obtaining any necessary approvals from Denominator Shares that is equal to or greater than the State of Florida Office of Insurance Regulation pursuant to this AgreementThreshold Percentage.
2.7 Emergent shall provide customary director and officer indemnity insurance on the same terms as provided to other directors and officers of Emergent in effect from time to time and subject to the conditions and terms thereof, and Emergent further agrees that it shall enter into a customary indemnification agreement with any Designated Director. Emergent hereby acknowledges that any director, officer or other indemnified person covered by such policy (any such persons, an “Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Xxxx Xxxxxxxx and/or or one or more of its Related Funds or Affiliates (the “Indemnitors”). To the extent permitted under Applicable Law, Emergent hereby (i) agrees that Emergent or any subsidiary of Emergent that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this agreement or any other agreement between Emergent and the Indemnitee, without regard to any rights an Indemnitee may have against the Indemnitors or their insurers, and (iii) irrevocably waives, relinquishes and releases the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. To the extent permitted under Applicable Law, Emergent further agrees that no advancement or payment by the Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from Emergent, as the case may be, shall affect the foregoing and the Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against Emergent.
Appears in 1 contract
Samples: Investment Agreement (CIFC Corp.)
Designation of Director. 2.1 On (i) The Investor Holders, collectively, shall be entitled to designate one Director to the Closing DateBoard upon the terms and subject to the conditions of this Section 3.3(a) and the second sentence of Section 3.3(b).
(ii) Except as provided in Section 3.3(a)(iv) and (a)(v) or as required by applicable Law, Xxxxx Xxx no Director designated pursuant to this Section 3.3(a) may be removed from office (whether or not for cause) unless such removal is directed or approved by the Investor Holders.
(iii) Upon the death, disability, retirement, resignation or other removal by the Investor Holders of the Director designated by the Investor Holders, the Board shall appoint as a Director to fill the vacancy so created with an individual designated by the Investor Holders.
(iv) If the sum of (A) the Investor Shares held by the Investor Holders and (B) the Warrant Shares held or issuable to the Initial Holder upon exercise of the Investor Warrant (the “Designated DirectorNumerator Shares”) shall be added represents less than 5% of the sum of (x) Voting Shares (including, for the avoidance of doubt, Investor Shares and issued Warrant Shares), (y) the Conversion Shares issuable to any DFR Holdings Holder upon the conversion of the aggregate amount of Convertible Notes then outstanding, and (z) Warrant Shares issuable to the Board to fill an existing vacancy Initial Holder upon exercise of the Warrant (the “Denominator Shares”), in each case, calculated as of the close of business on the Boardlast Trading Day of the month immediately prior to the date on which the Nominating Committee designates the Independent Director nominees for election at the relevant stockholder meeting, the Investor Holders shall not be entitled to designate a Director. To the extent that the Designated Director is not appointed to the Board on the Closing Date, the Board shall promptly thereafter (and in any event within five (5) Business Days of the Closing Date) fill an existing vacancy on the Board with the Designated Director and if no such vacancy exists, the Board shall be expanded by one (1) director to create a vacancy, which shall be filled with the Designated Director.
2.2 If Xx. Xxx (or any successor Designated Director) shall at any time Investor Holders cease to be affiliated with Xxxx Xxxxxxxx or any Affiliates or Related Funds thereof, or shall cease to be able to serve on the Board by reason of his resignation, death, incapacity, disability, disqualification or removal, or as a result of a conflict of interest, but not as a result of the Designated Director’s failure to be re-elected by the stockholders of Emergent, then Xxxx Xxxxxxxx shall be entitled to nominate a new individual to serve as a member of the Board and the Board shall fill the vacancy created by such departed Designated Director with such nominated individual, provided that such nominated individual satisfies the requirements set forth in Section 2.4. Any such nominated individual shall be deemed to be the Designated Director hereunder. For so long as (x) PJC has the right to designate three (3) directors pursuant to the Board Rights Agreement among Emergent, PJC and the Investors party thereto, dated as of the date hereof (the “PJC Board Rights Agreement”) and (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) at least 15.00% (the “Specified Percentage”) of the original principal amount of the New Senior Notes issued by Emergent to Xxxx Xxxxxxxx on the Closing Date (the “Xxxx Xxxxxxxx New Senior Notes”), Xxxx Xxxxxxxx shall have the right to designate a Designated Director, if requested by a majority of the Directors then serving on the Board (other than the Director designated by the Investor Holders), the Investor Holders shall promptly take all necessary action to procure the resignation of their designated Director; provided, that the Investor Holders shall not be required to cause their designated Director to resign in accordance with this Section 3.3(a)(iv) as provided a result of a dilution of the Investor Shares (other than dilution resulting from the issuance of New Shares) unless and until the Company complies with procedures in Section 3.3(a)(v) below.
(v) Notwithstanding anything in Section 3.3(a)(iv) to the contrary, if the Numerator Shares represent a percentage of the Denominator Shares that is less than 5% as a result of dilution of the Investor Shares, other than dilution resulting from the issuance of New Shares, the Company shall deliver a written notice to the Investor Holders of such dilution event (the “Dilution Notice”). If (A) within twenty (20) days following receipt of the Dilution Notice, the Investor Holders give the Company a written notice of their intention to acquire, directly or indirectly, an amount of Voting Shares or other Shares, such that immediately following such acquisition the Numerator Shares represent a percentage of Denominator Shares equal to 5% of the Denominator Shares (a “Cure Purchase”) within ninety (90) days of the Company’s receipt of the Dilution Notice (the “Cure Period”) and (B) the Cure Purchase is consummated during the Cure Period, then the Investor Holders shall not be required to cause their designated Director to resign in accordance with Section 3.3(a)(iv).
(vi) The Company shall cause each individual designated in accordance with Section 3.3(a)(i) to be included in the first sentence Board’s “slate” of this Section 2.2, and nominees for the Board shall, subject to Section 2.4 below, recommend at each applicable meeting of stockholders at which a Designated Director is and shall use commercially reasonable best efforts to be elected solicit from its Stockholders eligible to include a Designated Director as one vote for the election of Directors proxies (A) in favor of the Board’s nominees for election of such individuals and (B) against removal of each such individual (to the Board or to fill extent such individual is serving as a vacancy left by a departed Designated Director, in each case in order to have a Designated Director on the Board. The Board shall not take any action which is inconsistent with making such recommendation). In the event that that, notwithstanding the stockholders do not elect a Designated Director at a meeting of stockholders at which foregoing, such Designated Director is nominated for election, then, promptly after such meeting of stockholders (and in any event within ten (10) Business Days of such meeting of stockholders), Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such event as provided in the first sentence of this Section 2.2; provided, that if (a) the nominated Designated Director individual is not elected at such meeting of stockholders and to, or is removed from (bother than by the Investor Holders) there is no the Board, the Company shall create a vacancy on the Board following and appoint such individual to fill such vacancy.
(vii) Until the first annual meeting of Stockholders of the Company for the election of directors at such meeting Directors held after the first anniversary of stockholdersthis Agreement, then the Director designated by the Investor Holders shall receive no compensation or benefits, other than reimbursement for travel, lodging and related expenses incurred in connection with meetings of the Board or any committee thereof, or otherwise in service as a Director or member of the boards of directors of the Company or any of its Subsidiaries in accordance with the Company’s policies applicable to the other outside directors. Thereafter, the compensation and benefits of such Director shall be expanded by one (1) director determined with the approval of a majority of the Board and Xxxx Xxxxxxxx shall have the right to designate a new Designated Director to fill the vacancy created by such Board expansion as provided in the first sentence majority of this Section 2.2Independent Directors.
2.3 If (xviii) PJC no longer has the right to designate three (3) directors pursuant to the PJC Board Rights Agreement or (y) Xxxx Xxxxxxxx and/or any Affiliates or Related Funds thereof, in the aggregate, beneficially own (without duplication) less than the Specified Percentage of the original principal amount of the Xxxx Xxxxxxxx New Senior Notes, Xxxx Xxxxxxxx’x right to designate a Designated Director shall terminate and the Designated Director shall, and Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon request of Emergent, submit his or her resignation to the Board.
2.4 Notwithstanding anything to the contrary hereinin Section 3.3(a)(vii), it the Company shall to the maximum extent permitted under applicable Law, indemnify and provide for the advancement of expenses to the Director designated by the Investor Holders, from and against any and all losses which may be a condition precedent imposed on, incurred by, or asserted against such Director in any way relating to any Designated or arising out of, or alleged to relate to or arise out of, the Director’s service on the Board, whether in order to fill a vacancy on the Board or following an election that capacity pursuant to the Board, that such Designated Director shall, Company’s Constituent Documents and an indemnification agreement in the reasonable judgment form heretofore provided to the Investor.
(ix) The Director designated by the Investor Holders shall be covered by the directors’ and officers’ liability insurance and fiduciary liability insurance carried by the Company.
(x) No Investor Holder, nor any Affiliate of any Investor Holder, shall have any liability as a result of designating an individual for election as a Director for any act or omission by such designated individual in his or her capacity as a Director of the BoardCompany, (a) nor shall any Investor Holder have the requisite skill and experience to serve any liability as a director result of a publicly traded company, (b) not be prohibited or disqualified from serving as a director of Emergent pursuant to (i) voting for any applicable rule or regulation of the SEC, (ii) any applicable rule or regulation imposed by any exchange on which Emergent’s common stock is traded or (iii) any applicable law, and (c) qualify as an independent director under any applicable SEC and exchange requirements, rules and interpretations. The Board will adopt standards of skill and experience desired of potential candidates for nomination to the Board, which will be reflected in a charter of a committee of the Board or other similar document. The Parties agree that Xx. Xxx shall be deemed to satisfy the standards of skill and experience desired of potential candidates for nomination to the Board. Xxxx Xxxxxxxx agrees to timely provide Emergent with accurate and complete information relating to a prospective Designated Director that may be required to be considered by the Board or disclosed by Emergent under applicable exchange listing requirements or the Securities Act of 1933, as amended, the Securities and Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder. In addition, at Emergent’s request, Xxxx Xxxxxxxx shall cause its Designated Director to complete and execute Emergent’s standard Director and Officer Questionnaire prior to being admitted to the Board or standing for reelection at an annual meeting of stockholders or at such other time as may be reasonably requested by Emergent. Nothing in this Agreement will prevent or prohibit the Board from removing a Designated Director from the Board in accordance with Emergent’s Bylaws (as then in effect). If a Designated Director is removed from the Board designee in accordance with the immediately preceding sentence, Xxxx Xxxxxxxx provisions of this Agreement.
(xi) Any Person designated as a Director pursuant to Section 3.3(a)(i) by the Investor Holders shall have be subject to satisfaction of the requirements of applicable Law and corporate governance policies adopted by the Board.
(xii) The Investor Holders may waive their right to designate a new Designated Director under this Section 3.3 at any time by delivering written notice of such waiver to fill the vacancy created by Company in accordance with Section 5.4; provided, however, that the Investor Holders shall not be entitled to rescind any such Board removal as provided in the first sentence of Section 2.2.
2.5 As compensation for his or her service on the Board, the Designated Director shall receive compensation from Emergent that is consistent with the compensation of other similarly situated members of the Board.
2.6 Each Designated Director shall use reasonable efforts to obtain any necessary approvals from the State of Florida Office of Insurance Regulation in connection with such Designated Director’s service on the Boardwaiver once delivered. If a Designated Director does not obtain any such necessary approvals from the State of Florida Office of Insurance Regulation within one hundred (100) days of the commencement of such Designated Director’s service on the Board, Xxxx Xxxxxxxx shall cause the Designated Director to, promptly upon the request of Emergent, submit his or her resignation to the Board. If a Designated Director resigns from the Board pursuant to this Section 2.6, the Xxxx Xxxxxxxx shall have the Investor Holders otherwise lose their right to designate a new Designated Director pursuant to fill Section 3.3(a)(iv) and (a)(v), the vacancy created by Investor Holders shall not be entitled to regain their right to designate such Board removal as provided in Director, even if the first sentence of Section 2.2. Emergent shall reimburse the Designated Director for all reasonable costs and expenses Numerator Shares represent a percentage of the Designated Director incurred in connection with obtaining any necessary approvals from the State of Florida Office of Insurance Regulation pursuant Denominator Shares that is equal to this Agreementor greater than 5%.
2.7 Emergent shall provide customary director and officer indemnity insurance on the same terms as provided to other directors and officers of Emergent in effect from time to time and subject to the conditions and terms thereof, and Emergent further agrees that it shall enter into a customary indemnification agreement with any Designated Director. Emergent hereby acknowledges that any director, officer or other indemnified person covered by such policy (any such persons, an “Indemnitee”) may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Xxxx Xxxxxxxx and/or or one or more of its Related Funds or Affiliates (the “Indemnitors”). To the extent permitted under Applicable Law, Emergent hereby (i) agrees that Emergent or any subsidiary of Emergent that provides indemnity shall be the indemnitor of first resort (i.e., its or their obligations to an Indemnitee shall be primary and any obligation of any Indemnitor to advance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnitee shall be secondary), (ii) agrees that it shall be required to advance the full amount of expenses incurred by an Indemnitee and shall be liable for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the extent legally permitted and as required by the terms of this agreement or any other agreement between Emergent and the Indemnitee, without regard to any rights an Indemnitee may have against the Indemnitors or their insurers, and (iii) irrevocably waives, relinquishes and releases the Indemnitors from any and all claims against the Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. To the extent permitted under Applicable Law, Emergent further agrees that no advancement or payment by the Indemnitors on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from Emergent, as the case may be, shall affect the foregoing and the Indemnitors shall have a right of contribution or be subrogated to the extent of such advancement or payment to all of the rights of recovery of such Indemnitee against Emergent.
Appears in 1 contract
