Designees. (a) On the Closing Date, the Company will take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto to be appointed to the Board. (b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4: (i) In connection with each annual or special meeting of stockholders of the Company at which directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination a number of Investor Directors as follows: (A) during any time that the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director. (ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable. (iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1. (c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting. (d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b). (e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2. (f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 3 contracts
Samples: Stockholders' Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.), Securities Purchase Agreement (WPX Energy, Inc.)
Designees. (a) On The Company and the Closing Date, the Company will Principal Stockholders shall take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto Board to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be consist of members designated as follows, subject to Section 3.4:
(i) In connection with each annual or special meeting of stockholders of Three nominees shall be designated by Rice Energy Holdings LLC (the Company at which directors are to be elected (each such annual or special meeting, an “Election MeetingRice Holdco Directors”); provided, the Investor shall have the right to designate for nomination a number of Investor Directors as follows: that (A) during any the number of nominees designated by Rice Energy Holdings LLC shall be reduced to two directors at such time that as Rice Energy Holdings LLC and its Affiliates (the Investor Group and the Management Group “Rice Holdco Entities”) collectively Beneficially Own, Own less than 15% and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) greater than or equal to 5% of the outstanding shares of Common Stock, two (2) Investor Directors or at which point one Rice Holdco Director shall tender his resignation to the Board, and (B) during any Rice Energy Holdings LLC shall no longer be entitled to designate a nominee at such time that as the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do Rice Holdco Entities collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) Own less than 5% of the outstanding shares of Common Stock, one (1) Investor Director.at which point the Rice Holdco Directors shall tender their resignations to the Board. At any given time, and provided that the directors are allocated among separate classes, the Rice Holdco Directors shall be in different classes of directors;
(ii) The Investor Two nominees shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall providebe designated by NGP Rice Holdings, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) LLC (the “Required InformationNGP Directors”); provided, howeverthat (A) the number of nominees designated by NGP Rice Holdings, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor LLC shall be deemed reduced to have nominated one director at such time as NGP Rice Holdings, LLC and its Affiliates (the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group “NGP Entities”) collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) 15% and greater than or equal to 5% of the outstanding shares of Common Stock at which point one NGP Holdco Director shall tender his resignation to the Board, and (B) that NGP Rice Holdings, LLC shall no longer be entitled to designate a nominee at such time as the NGP Entities collectively Beneficially Own less than 5% of the outstanding shares of Common Stock, at which point the NGP Director shall tender his resignation to the Board; and
(iii) One nominee shall be designated by Alpha Natural Resources, Inc. (the “ANR Director”); provided, that Alpha Natural Resources, Inc. shall no longer be entitled to designate a nominee at such time as Alpha Natural Resources, Inc. and its Affiliates (the “ANR Entities”) collectively Beneficially Own less than 5% of the outstanding shares of Common Stock, at which point the ANR Director shall tender his resignation to the Board; provided, further, however, that if immediately following the consummation of the IPO, the ANR Entities collectively Beneficially Own less than 5% of the outstanding shares of Common Stock, Alpha Natural Resources, Inc. shall nevertheless be entitled to designate one ANR Director until the earlier to occur of (x) the first anniversary of the IPO and (y) the date on which the ANR Entities have divested more than 75% of the Alpha Shares (as defined in the Transaction Agreement). In any event, the ANR Director must be either (i) the Chief Executive Officer of Alpha Natural Resources, Inc. at the time of the designation of such ANR Director or (ii) such date a member of senior management (with a title of Senior Vice President or greater) of Alpha Natural Resources, Inc. that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 is reasonably satisfactory to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2Company.
(fb) For So long as the avoidance Rice Holdco Entities collectively Beneficially Own 15% or more of doubt and subject to Section 3.5 and Section 3.7the outstanding shares of Common Stock, the rights granted to Investor to designate members Board shall include at least one Rice Holdco Director on each committee of the Board are additive to, and not intended as designated by Rice Energy Holdings LLC (subject to limit in any wayindependence requirement imposed by law or by the rules of any national securities exchange on which the Common Stock may be listed or traded).
(c) So long as a Sponsor is entitled to designate a nominee pursuant to Section 2.1(a), the rights Sponsor shall have the right to remove such nominee (with or without cause), from time to time and at any time, from the Board, exercisable upon written notice to the Company. Should a director designated by a Sponsor be removed for any reason, whether by such Sponsor or otherwise in accordance with the Company’s certificate of incorporation and bylaws, as either may be amended or restated from time to time, the Sponsor shall be entitled to designate an individual to fill the vacancy created by such removal so long as the Sponsor is entitled to designate a nominee pursuant to Section 2.1(a) on the date of such replacement designation; provided, that the Investor ANR Director must meet the requirements of Section 2.1(a)(iii).
(d) Each Principal Stockholder hereby agrees to vote, in respect of the Board, such Principal Stockholder’s shares of Common Stock and Equity Securities for any nominee designated by a Sponsor so long as the Sponsor is entitled to designate such nominee pursuant to Section 2.1(a). In the event that a Sponsor wishes to remove its designee to the Board in accordance with Section 2.1(c), each Principal Stockholder hereby agrees to vote, in respect of the Board, its shares of Common Stock or Equity Securities for the removal of such designee from the Board.
(e) In connection with the required resignation of any director appointed by a Sponsor pursuant to this Section 2.1, such director may tender his resignation in advance of the date on which such resignation is required pursuant to this Section 2.1 and the Board shall have the right to nominatedecline to accept such resignation, in which case such director shall continue to serve on the Board until the earlier of his subsequent resignation, death or removal. Notwithstanding the foregoing, any director appointed by a Sponsor may elect or remove directors under the Organizational Documents or Delaware General Corporation Lawto have his resignation be effective immediately upon tender.
Appears in 2 contracts
Samples: Stockholders' Agreement (Rice Energy Inc.), Stockholders' Agreement (Alpha Natural Resources, Inc.)
Designees. (a) On the Closing Date, the The Company will and NESR Holdings shall take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto Board to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be include members as follows, subject to Section 3.4:
(i) In connection with each annual or special meeting of stockholders Until such time as SV3 and its Affiliates collectively Beneficially Own less than [_____]1 of the Company at which directors are to be elected outstanding Ordinary Shares, one nominee designated by SV3 (each such annual or special meeting, an the “Election MeetingSV3 Director”), provided that SV3 has taken all Necessary Action during the Investor shall have course of negotiating and entering the Sale and Purchase Agreement and afterwards as a shareholder of Company to afford the former shareholders of GES the same right to designate for nomination appoint a number of Investor Directors as follows: (A) during any time that director to the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director.Board; and
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later If SV3 and its Affiliates collectively Beneficially Own less than the date that is sixty (60) days before the first anniversary [_____]2 of the date that the Company’s annual proxy for the prior year was first mailed outstanding Ordinary Shares, SV3 shall not be entitled to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to providedesignate a nominee as an SV3 Director. The Company agrees, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the fullest extent permitted by applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations law (including with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”any applicable fiduciary duties under applicable law); provided, however, that if taking all necessary corporate action to effectuate the Investor fails to give such notice or above shall include (A) including the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors persons designated pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b2.1(a) in the slate of nominees recommended by the Board to the Company’s stockholders for election as at any meeting of stockholders called for the purpose of electing directors, (iiB) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting nominating and recommending each such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) individual to be elected to the Boardas a director as provided herein, including recommending that the Company’s stockholders vote and (C) soliciting proxies or consents in favor of the Investor Director(s) in any proxy statement used by the thereof. The Company is entitled to solicit the vote of its stockholders in connection with each Election Meetingidentify such individual as an SV3 Director, pursuant to this Agreement.
(db) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor So long as SV3 is entitled to designate a nominee pursuant to Section 3.1(b2.1(a), then unless otherwise requested by SV3 shall have the Board by action of right to remove such SV3 Director (with or without cause), from time to time and at any time, from the Non-Affiliated DirectorsBoard, the Investor shall promptly (and in any event prior exercisable upon written notice to the time Company, and the Board next takes any action, whether at Company shall take all Necessary Action to cause such removal.
(c) In the event that a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving vacancy is created on the Board does not exceed at any time by the total number death, disability, resignation or removal (whether by SV3 or otherwise in accordance with the Company’s organizational documents, as such may be amended or restated from time to time) of Investor Directors the Investor is an SV3 Director, SV3 shall be entitled to designate pursuant an individual to Section 3.1(b).
(e) On fill the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group vacancy. The Company and the Management Group collectively Beneficially Owning less than ten percent (10%) NESR Holdings shall take all Necessary Action to cause such replacement designee to become a member of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2Board.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Samples: Voting Agreement (National Energy Services Reunited Corp.)
Designees. Each Stockholder agrees to vote, execute proxies or written consents, or otherwise cause to be voted all of its Common Stock (aand any other shares of Common Stock over which it exercises voting control), and to take such other actions as are necessary, so as to (x) On fix the Closing Datenumber of directors of the Corporation at five (5) persons or such greater or lesser number as specified by Stockholders that own or hold, together with their Affiliates, a majority of the Company will Fully Diluted Common Stock (provided, that the number of seats on the Board of Directors shall not be less than that number as is required to give effect to the designation rights set forth in clauses (ii), (iii) and (iv) of this Section 4.1(a) while any such designation rights are in effect pursuant to the terms of this Agreement), and (y) elect and continue in office as directors and to take all Necessary Action other action within its control to cause such election and continuance (including using its commercially reasonable efforts to cause the Investor Directors listed in Exhibit A hereto Corporation to be appointed to call a special meeting of Stockholders) of the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4following:
(i) In connection with each annual or special meeting of stockholders of the Company at which directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination a number of Investor Directors as follows: (A) during any time that the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director.director who shall be the individual serving as the Chief Executive Officer of the Corporation on the Effective Date, provided, that if for any reason such individual shall cease to serve as the Chief Executive Officer of the Corporation, each Stockholder shall (A) vote, execute proxies or written consents or otherwise cause to be voted all of its Common Stock (and any other shares of Common Stock over which such Stockholder exercises voting control), and take any other action necessary, to remove such individual from the Board of Directors if such individual has not resigned as a member of the Board of Directors, and (B) elect as a director an individual nominated and designated by the Stockholders that own or hold, together with their Affiliates, a majority of the Fully Diluted Common Stock;
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times so long as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) Highbridge continues to be Investor Director(sa Significant Holder, one
(1) director nominated and designated by Highbridge (such person, the “Required InformationHighbridge Director”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.;
(iii) In for so long as Xxxxxxx continues to be a Significant Holder, one
(1) director nominated and designated by Xxxxxxx (such person, the event that “Xxxxxxx Director”);
(iv) for so long as Whitebox continues to be a Significant Holder, one
(1) director nominated and designated by Whitebox (such person, the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors“Whitebox Director”); and
(v) one (1) director, then proper provision shall be made such that the designees who qualifies, as of the Investor shall be distributed date of such director’s election or appointment, as evenly an “Independent Director” under the listing requirements of NYSE MKT LLC, in effect as possible among of such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From date, nominated and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1vote of Stockholders that own or hold, including the following: (i) at each Election Meetingtogether with their Affiliates, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval a majority of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election MeetingFully Diluted Common Stock.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Samples: Stockholders Agreement
Designees. (a) On Subject to Section 2.1(h), each of the Closing DateFamily Representative, the Company will take all Necessary Action CDR Fund and Exor shall have the respective rights to cause the Investor Directors listed in Exhibit A hereto to be appointed designate individuals for nomination for election to the Board., and the Company shall cause such individuals to be nominated for election to the Board, in each case as follows:
(bi) From and after the Closing Date until the Board Designation Expiration Date, the manner The Family Representative shall be entitled to designate one person for selecting nominees nomination for election to the Board will be for so long as followsthe Family Stockholders, subject to Section 3.4:in the aggregate, own at least 5% of the Fully Diluted shares of Common Stock, consisting of one director in Class III (the "Family Designee");
(iii) In connection with The CDR Fund shall be entitled to designate: (A) one person for nomination for election to the Board for so long as it owns at least 5% of the Fully Diluted shares of Common Stock, consisting of one director in Class III; or (B) one person for nomination for election to the Board, consisting of one director in Class III, for so long as (x) it owns less than 5% of the Fully Diluted shares of Common Stock and (y) the Former Riverwood Stockholders (including the CDR Fund) hold in the aggregate at least 30% of the Fully Diluted shares of Common Stock (the "CDR Designee"); and
(iii) Exor shall be entitled to designate one person for nomination for election to the Board for so long as it owns at least 5% of the Fully Diluted shares of Common Stock, consisting of one director in Class III (the "Exor Designee"). At each annual or special meeting of the stockholders of the Company at which directors of the Company are to be elected (each such annual or special meeting, an “Election Meeting”)elected, the Investor shall have the right Company agrees to designate for nomination a number of Investor Directors as follows: (A) during any time recommend that the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director.
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated elect to the Board in connection with an Election Meetingeach Family Designee, CDR Designee and Exor Designee nominated for election at such meeting. In addition, for so long as applicable.
(iii) In Xxxxxxx X. Xxxxxxxx serves as the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees Chief Executive Officer of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration DateCompany, the Company shall take all Necessary Actions cause him to cause be nominated for election to the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval any meeting of the election of the Investor Director(s), including causing officers stockholders of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor at which directors of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) his class are to be elected elected, and shall recommend that the stockholders elect him to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Designees. (a) On Each of the Closing DateFamily Representative, the Company will take all Necessary Action CDR Fund, Exor and TPG Entities shall have the respective rights to cause the Investor Directors listed in Exhibit A hereto to be appointed designate individuals for nomination for election to the Board., and the Company shall cause such individuals to be nominated for election to the Board, in each case as follows:
(bi) From and after the Closing Date until the Board Designation Expiration Date, the manner The Family Representative shall be entitled to designate one person for selecting nominees nomination for election to the Board will be for so long as followsthe Family Stockholders have not Transferred any shares of Common Stock such that immediately after giving effect to such Transfer they, subject to Section 3.4:
(i) In connection with each annual or special meeting of stockholders in the aggregate, own less than 3% of the Company at which directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination a number of Investor Directors as follows: (A) during any time that the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding Fully Diluted shares of Common Stock, two consisting of one director in Class I (2the “Family Designee”) Investor Directors or and who at the Effective Time shall be Jxxxxxx X. Xxxxx;
(Bii) during The CDR Fund shall be entitled to designate one person for nomination for election to the Board for so long as it has not Transferred any time shares of Common Stock such that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through immediately after giving effect to such Election Meeting, at least ten percent (10%) Transfer it owns less than 3% of the outstanding Fully Diluted shares of Common Stock, consisting of one (1) Investor Director.
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request director in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) Class I (the “Required InformationCDR Designee”); provided, however, that if ) and who at the Investor fails to give such notice or the Required Information in a timely manner, then the Investor Effective Time shall be deemed Kxxxx X. Xxxxxx;
(iii) Exor shall be entitled to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide designate one person for nomination for election to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of Board for so long as it has not Transferred any shares of Common Stock such that would immediately after giving effect to such Transfer it owns less than 3% of the Fully Diluted shares of Common Stock, consisting of one director in Class I (the “Exor Designee”) and who at the Effective Time shall be required G. Axxxxx Xxxxx; and
(iv) TPG Entities shall be entitled to designate the number of Investor Directors pursuant to this Section 3.1(b(A) then serving on the Board or then being designated three persons for nomination for election to the Board in connection with an Election Meeting, for so long as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in they have not Transferred any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock such that immediately after giving effect to such Transfer they, in the aggregate, own less than 20% of the Fully Diluted shares of Common Stock, consisting of one director in each of Class I, Class II and Class III; (B) two persons for nomination to election to the Board for so long as they have not Transferred any shares of Common Stock such that immediately after giving effect to such Transfer they, in the aggregate, own less than the lesser of (i) 16% of the Fully Diluted shares of Common Stock or (ii) such date amount that the Investor delivers a written waiver Family Stockholders own in the aggregate at the time of its rights under this Section 3.1 the relevant Transfer by TPG Entities; provided, however such amount shall in no case be less than 10% of the Fully Diluted shares of Common Stock, consisting of one director in each of Class I and Section 3.2 Class II; or (C) one person for nomination to election to the Company (which Board for so long as they have not Transferred any shares of Common Stock such that immediately after giving effect to such Transfer they, in the aggregate, own less than 3% of the Fully Diluted shares of Common Stock who shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
a member of Class I (f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7collectively, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law“TPG Designees”).
Appears in 1 contract
Designees. (ai) On the Closing Date, the The Company will take all Necessary Action to cause such that, as of the Closing, the Investor Directors listed in Exhibit A hereto to Schedule II (or such persons or replacements as may be approved in accordance with the proviso in Section 2(a)(ii)) shall be appointed to the BoardBoard to serve in such classes indicated on Schedule II.
(bii) From Subject to the terms and conditions of this Agreement, from and after the Closing Date until date of the Board Designation Expiration DateClosing, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4:
(i) In in connection with each annual or special meeting of stockholders of the Company at which directors are any Investor Director is to be elected, re-elected or replaced (each such annual or special meeting, an “Election Meeting”), the Investor Stockholders collectively shall have the right (but not the obligation) to designate for nomination a number of Investor Directors as follows: (A) two (2) individuals to the Board during any time that the Investor Group and the Management Group Stockholders collectively Beneficially Own, and have collectively Beneficially Owned at all times from the date of the Closing Date through such Election Meeting, at least twenty twenty-five percent (2025%) of the then issued and outstanding shares of Common Stock, two (2) Investor Directors Purchaser Shares or (B) one (1) individual to the Board during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do Stockholders collectively Beneficially Own, and have collectively Beneficially Owned at all times from the date of the Closing Date through such Election Meeting, at least ten fifteen percent (1015%) of the then issued and outstanding shares Purchaser Shares (any such nominee under the foregoing clauses (A) and (B), an “Investor Nominee”); provided, however, that (other than with respect to the individuals set forth on Schedule II so long as such individuals have delivered updated director questionnaires to the Company and there have been no material changes from the initial questionnaires delivered to the Company) before any Investor Nominee will be included in the Board’s slate of Common Stocknominees submitted to the stockholders for election as a member of the Board at the Election Meeting, one the Governance Committee must (1acting in good faith) consent to his or her nomination, such consent not to be unreasonably withheld. In each case, any individual designated for nomination to the Board by the Investor DirectorStockholders (x) must qualify as “independent” under the rules of any national securities exchange on which the Purchaser Shares are listed (but, for clarity, is not required to be “independent” in accordance with the rules and regulations of the SEC as the same apply to audit committee members) and (y) shall not be a Representative of any Company Competitor or its Affiliates (collectively, (x) and (y) the “Designee Qualifications”).
(iiiii) The In advance of each Election Meeting, the Investor Stockholders shall give written notice (the “Initial Notice”) to the Governance Committee of each such any Investor Director Nominees no later than the date that is sixty ninety (6090) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders stockholders, which Initial Notice shall include all information regarding any Investor Nominee that is required by applicable law, the Company Organizational Documents, the rules and regulations of the SEC and the listing standards of any national securities exchange on which the Purchaser Shares are listed. For a period of thirty (30) days following the Governance Committee’s receipt of the Initial Notice (the “Initial Review Period”), the Investor Stockholders shall (A) provide, or cause such individual(s) each Investor Nominee to provide, to the Company, such information about such individuals the Investor Nominee as reasonably requested by the Governance Committee and the nomination (B) cause each Investor Nominee to the Company at such times as the Company may reasonably request in order to ensure compliance be available for interviews and discussions with the applicable stock exchange rules and Governance Committee as reasonably requested by the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicableGovernance Committee.
(iiiiv) In If the event that Governance Committee consents to the Company amends its certificate nomination of incorporation to provide that an Investor Nominee by the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees end of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration DateInitial Review Period, the Company shall take all Necessary Actions Action to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the followingensure that: (iA) at such Investor Nominee is included in the Board’s slate of nominees to the stockholders of the Company for each Election Meeting, include ; and (xB) such Investor Nominee is included in the Investor Director(s) entitled to be designated proxy statement prepared by the Investor pursuant to Section 3.1(b) Company in connection with soliciting proxies for the slate Election Meeting, and at every adjournment or postponement thereof, and on every action or approval by written resolution of nominees recommended by the stockholders of the Company or the Board with respect to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers members of the Board in lieu of an Election Meeting. The Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) shall use its reasonable best efforts to vote such proxies in favor of cause the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected individual to the Board; provided, including recommending that, the Company shall not be required, pursuant to this sentence, to use any greater standard of efforts than the Company utilizes with respect to the election of its director nominees other than the Investor Nominees.
(v) If the Governance Committee (acting in good faith) does not provide its consent to the nomination of an Investor Nominee, then the Investor Stockholders shall have the right to designate an alternative person to be nominated for election by the Board (the “Alternate Nominee”) by giving written notice to the Company within fifteen (15) days after the expiration of the Initial Review Period, which notice shall include all information regarding the Alternate Nominee that is required by applicable law, the Company’s stockholders vote in favor Company Organizational Documents, the rules and regulations of the SEC and the listing standards of any national securities exchange on which the Purchaser Shares are listed. For a period of fifteen (15) days from the date of receipt of the Investor Director(sStockholders’ written notice proposing the Alternate Nominee (the “Second Review Period”), the Investor Stockholders will (A) provide such additional information about the Alternate Nominee as reasonably requested by the Governance Committee and (B) cause the Alternate Nominee to be available for interviews and discussions with the Governance Committee.
(vi) If the Governance Committee consents to the nomination of an Alternate Nominee by the end of the Second Review Period, the Company shall take Necessary Action to ensure that: (A) such Alternate Nominee is included in any the Board’s slate of nominees to the stockholders of the Company for each Election Meeting; and (B) such Alternate Nominee is included in the proxy statement used prepared by the Company to solicit the vote of its stockholders in connection with each soliciting proxies for the Election Meeting.
(d) If , and at any time every adjournment or postponement thereof, and on every action or approval by written resolution of the number stockholders of Investor Directors serving on the Company or the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior with respect to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number election of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive toin lieu of an Election Meeting. If the Governance Committee (acting in good faith) does not provide its consent to the Alternative Nominee within fifteen (15) days of the end of the Second Review Period, and not intended to limit in any way, then the rights that process for the Alternative Nominee contemplated by this Section 2(a)(vi) shall be repeated (mutantis mutandis) until a designee of the Investor Stockholders is appointed as the Investor Director.
(vii) The Company shall cooperate in good faith with the Investor Stockholders to identify and pre-clear Investor Nominees and Alternate Nominees, as the case may have be, in advance of deadlines contained herein and take such other actions as reasonably requested by the Investor Stockholders to nominateassist the Investor Stockholders in submitting Investor Nominees or Alternate Nominees, elect or remove directors under as the Organizational Documents or Delaware General Corporation Lawcase may be, who may obtain the requisite consent required by the Governance Committee.
Appears in 1 contract
Samples: Stockholders Agreement (Viasat Inc)
Designees. (a) On Upon the Closing Dateclosing of the IPO, the Board shall initially consist of six (6) directors, including Xxxxxx Xxxxx, Henchy Xxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxx Xxxxxxxx, Xxxxx Xxxxxx and Xxxx Xxxxxxx (the “Initial Directors”). The audit committee of the Board shall initially consist of three directors, including Henchy Xxxxxx Xxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxxxx; and the compensation committee of the Board shall initially consist of three directors, including Xxx Xxxxxxxx, Xxxxx Xxxxxxx and Henchy Xxxxxx Xxxxx. Of the initial directors, Xxx Xxxxxxxx is deemed to be GF Directors. From and after the closing of the IPO, the rights of the Holder to designate directors to the Board and its committees shall be as set forth in the remainder of this Section 2.1. At the completion of the IPO, the Board shall include the applicable GF Directors referred to in this paragraph (a), and such other individuals as shall be nominated and elected to the Board from time to time by the Board or the Company’s stockholders consistent herewith and with applicable law.
(i) Subject to applicable laws and stock exchange regulations, for so long as the aggregate Ownership Percentage of the Holder and its Affiliates is at least ten percent (10%), the Company will take all Necessary Action necessary action (to the extent permitted by applicable law and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law) to cause the Investor Directors listed in Exhibit A hereto Board to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees nominate for election to the Board will be as follows, subject to Section 3.4:
(i) In connection with at each annual or special meeting of stockholders of the Company at which directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination a that number of Investor Directors as follows: (A) during any time that individuals designated by the Investor Group and the Management Group collectively Beneficially OwnHolder that, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth if elected would result in the preceding clause number of GF Directors (Arounded down to the nearest whole number) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from equal to the Closing Date through such Election Meeting, at least ten percent greater of (10%x) of the outstanding shares of Common Stock, one (1) Investor Director.
and (y) the product of (i) the total number of members then comprising the full Board (including the GF Directors) and (ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the CompanyHolder’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”)Ownership Percentage; provided, however, that if the Investor fails to give such notice Board shall have six (6) or the Required Information in a timely mannerseven (7) directors, then the Investor Holder shall be deemed entitled to have nominated the incumbent Investor Director or Investor designate two (2) GF Directors, as applicableand that if the Board shall have eight (8) or nine (9) directors, in a timely manner. The Investor Holder shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required entitled to designate three (3) GF Directors. Any individuals, other than the number of Investor Directors Initial Directors, designated by the Holder pursuant to this Section 3.1(b2.1(b) then serving on must satisfy the requirements for a replacement designee set forth in Section 2.1(f).
(ii) Subject to applicable laws and stock exchange regulations, for so long as the aggregate Ownership Percentage of the Holder and its Affiliates is at least ten percent (10%), the Company will take all necessary action (to the extent permitted by applicable law and listing standards and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law) to cause the Board or to appoint at least one (1) GF Director to serve on each and every committee of the Board.
(c) In the event that the Holder has nominated fewer than the total number of designees that the Holder shall be entitled to nominate pursuant to Section 2.1(b), then being designated the Holder shall have the right, at any time and from time to time, to nominate such additional designee(s) to which it is entitled, in which case, the Company shall take all necessary corporate action (to the extent permitted by applicable law and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law) to cause the Board in connection with an Election Meetingto (x) increase the size of the Board as required to enable such Holder to so nominate such additional designee(s), and (y) designate such additional designees nominated by the Holder to fill any vacancy or vacancies, as applicable.
(iiid) Following the date of completion of the IPO and for so long as the Holder is entitled to designate any Person to the Board pursuant to this Section 2.1, the Board shall not increase or decrease the size of the Board (other than as contemplated by Section 2.1(c), to the extent necessary to comply with applicable law or listing standards, or to increase the size of the Board to seven (7) members) without the consent of the Holder.
(e) Any GF Director may be removed (with or without cause) from time to time and at any time by the Holder upon notice to the Company.
(f) In the event that the Company amends its certificate of incorporation to provide that a vacancy is created on the Board by the death, disability, resignation or removal of a GF Director, the Holder shall be classified into separate classes entitled to designate an individual to fill the vacancy so long as the total number of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until GF Directors serving on the Board Designation Expiration Date, immediately following the filling of such vacancy will not exceed the total number of persons the Holder is entitled to designate pursuant to Section 2.1(b)(i) on the date of such replacement designation. The Company shall take all Necessary Actions necessary action (to the extent permitted by applicable law and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law) to cause such replacement designee to become a member of the Board as soon as reasonably possible.
(g) The Company agrees to take all necessary action (to the extent permitted by applicable law and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law) to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election at any meeting of stockholders called for the purpose of electing directors the Persons designated pursuant to this Section 2.1 and to nominate and recommend each such individual to be elected as directorsa director as provided herein, (ii) and to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies or consents in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the thereof. The Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate identify such individual as a GF Director pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b)this Agreement.
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Samples: Shareholder Agreement (Dynasty Financial Partners Inc.)
Designees. (a) On the Closing Date, the The Company will and N ESR Holdings shall take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto Board to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be include mem bers as follows, subject to Section 3.4fol lows:
(i) In connection with each annual or special meeting of stockholders Unti l such time as SY3 and its Affi l iates collectively Beneficially Own less than 4,095,000 of the Company at which directors are to be elected outstand ing Ord inary Shares, one nominee designated by SV3 (each such annual or special meeting, an the “Election Meeting”SV3 Director “), provided that SY3 has taken all Necessary Act ion during the Investor shall have course of negotiati ng and enterin g the right Sale and Purchase Agreement and afterwards as a shareholder of Compan y to designate for nomination afford the former shareholders of GES the same ri ght to appoint a number of Investor Directors as follows: (A) during any time that d irector to the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director.Board; and
(ii) I f SV3 and i ts Affil iates collectively Beneficially Own less than 4 ,095,000of the outstand ing Ord inary Shares, SY3 shall not be entit led to designate a nom inee as an SY3 Director. The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provideCompany agrees, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the fu l lest extent permitted by applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations law (incl udi ng with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”any applicable fiduciary duties under applicable law); provided, however, that if taking all necessary corporate action to effectuate the Investor fails to give such notice or above shal l include (A) including the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors persons designated pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b2. 1{a) in the slate of nominees recommended by the Board to the Company’s stockholders for election as at any meeti ng of stockholders called for the purpose of electi ng directors, (iiB) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting nominating and recommend ing each such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) ind ividual to be elected as a director as provided herein, and (C) solicit ing proxies or consents i n favor thereof. The Company is entitled to the Boardidentify such ind ivid ual as an SY3 Director, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company pursuant to solicit the vote of its stockholders in connection with each Election Meetingthis Agreement.
(db) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor So long as SV3 is entitled to designate a nominee pursuant to Section 3.1(b2.1 { a), then unless otherwise requested by SV3 shal l have the Board by action of right to remove such SY3 Director (with or without cause), from time to t ime and at any time, from the Non-Affiliated DirectorsBoard, the Investor shall promptly (and in any event prior exercisable upon written notice to the time Company, and the Board next takes any action, whether at Company shall take all Necessary Action to cause such removal.
(c) I n the event that a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving vacancy is created on the Board does not exceed at any time by the total number death, d isability, resignation or removal (whether by SV3 or otherwise in accordance wi th the Company’s organizational documents, as such may be amended or restated from t ime to time) of Investor Directors the Investor is an SY3 Director , SY3 shall be entitled to designate pursuant an ind ividual to Section 3.1(b).
(e) On fill the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group vacancy. The Company and the Management Group collectively Beneficially Owning less than ten percent (10%) NESR Hold ings shall take all Necessary Action to cause such replacement designee to become a member of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2Board.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Samples: Voting Agreement (National Energy Services Reunited Corp.)
Designees. (a) On Effective as of immediately following the Closing DateClosing, each person contemplated by Section 1.6(a) of the Company will take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto to Merger Agreement shall be appointed to a director of the BoardBoard and shall serve as a director until his or her successor is duly elected and qualified or until his or her earlier death, resignation, retirement, disqualification, or removal.
(b) From The Company and after the Closing Date until Principal Stockholders shall take all necessary corporate action, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), to include in the slate of nominees to be recommended by the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4:
(i) In connection with director at each applicable annual or special meeting of stockholders of the Company at which directors are to be elected the following individuals:
(each such annual or special meeting, an “Election Meeting”), the Investor shall have the right to designate for nomination a number of Investor Directors as follows: (Ai) during any time that the Investor Group if Kimmeridge and the Management Group its Affiliates collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, Own at least twenty percent (20%) of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) % of the outstanding shares of Common Stock, one nominee designated by Kimmeridge (1) Investor the “Kimmeridge Director.”);
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders if Blackstone and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group its Affiliates collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (least 10%) % of the outstanding shares of Common Stock Stock, one nominee designated by Blackstone (the “Blackstone Director”);
(iii) if the Source Stockholders and their Affiliates collectively Beneficially Own at least 10% of the outstanding shares of Common Stock, one nominee designated by the Source Stockholders (iithe “Source Director”); and
(iv) If the applicable Principal Stockholder and its Affiliates collectively Beneficially Own less than 10% of the outstanding shares of Common Stock, such date that the Investor delivers Principal Stockholder shall not be entitled to designate a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2nominee.
(fv) For the avoidance of doubt and subject to Section 3.5 and Section 3.7doubt, the rights granted to Investor the Principal Stockholders to designate members of the Board nominees are additive to, and not intended to limit in any way, the rights that the Investor Principal Stockholders or any of their respective Affiliates may have to nominate, elect or remove directors under the Organizational Documents Company’s certificate of incorporation, bylaws or the Delaware General Corporation Law.
(c) If the first annual meeting of stockholders at which directors are to be elected following the effective time of the Merger (the “First Post-Closing Meeting”) occurs in 2022, the Company and the Principal Stockholders shall take all necessary corporate action, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), to include in the slate of nominees to be recommended by the Board for election as director at the First Post-Closing Meeting the individuals set forth in Section 1.6(a)(iii) of the Merger Agreement (together, the “Ferrari Designees”).
(d) The Company agrees, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), that taking all necessary corporate action to effectuate Section 2.1(b) and Section 2.1(c) shall include (A) including the Persons designated pursuant to Section 2.1(b) and named in Section 2.1(c) in the slate of nominees recommended by the Board for election at any meeting of stockholders called for the purpose of electing directors (or, if applicable, the First Post-Closing Meeting in the case of the Ferrari Designees), (B) nominating and recommending each such individual to be elected as a director as provided herein, and (C) soliciting proxies or consents in favor thereof. The Company is entitled to identify such individual as a Kimmeridge Director, a Blackstone Director or a Source Director, as applicable, pursuant to this Agreement.
(e) So long as a Principal Stockholder is entitled to designate a nominee pursuant to Section 2.1(b), subject to the Company’s certificate of incorporation, (i) such Principal Stockholder shall have the right to remove the Principal Stockholder Director (with or without cause) appointed by such Principal Stockholder, from time to time and at any time, from the Board, exercisable upon written notice to the Company, and (ii) the Company shall take all necessary corporate action, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), to cause such removal.
(f) In the event that a vacancy is created on the Board at any time by the death, disability, resignation or removal (whether by a Principal Stockholder or otherwise in accordance with the Company’s certificate of incorporation and bylaws, as either may be amended or restated from time to time) of a Principal Stockholder Director, the Principal Stockholder entitled to appoint such Principal Stockholder Director shall be entitled to designate an individual to fill the vacancy so long as the total number of Persons that will serve on the Board as designees of such Principal Stockholder immediately following the filling of such vacancy will not exceed one. The Company shall take all necessary corporate action, to the fullest extent permitted by applicable law (including with respect to any applicable fiduciary duties under Delaware law), to cause such replacement designee to become a member of the Board.
(g) In the event that a Principal Stockholder is no longer entitled to designate a nominee pursuant to Section 2.1(b), the Principal Stockholder Director appointed by such Principal Stockholder shall offer to tender his or her resignation, effective immediately, which offer shall be accepted by the Company at the discretion of the Nominating and Governance Committee of the Board.
Appears in 1 contract
Samples: Director Designation Agreement (Falcon Minerals Corp)
Designees. (a) On Upon the Closing, the Board shall initially consist of seven (7) directors, including [__________], [__________], [__________], [__________], [__________], [__________] and [__________].1 In accordance with the certificate of incorporation of Holdco, the Board will be divided into three (3) classes serving staggered three-year terms. The initial term of the Class I directors shall expire at the first (1st) annual meeting of the stockholders of Holdco following the Closing DateDate at which directors are elected. The initial term of the Class II directors shall expire at the second (2nd) annual meeting of the stockholders of Holdco following the Closing Date at which directors are elected. The initial term of the Class III directors shall expire at the third (3rd) annual meeting of the stockholders of Holdco following the Closing Date at which directors are elected. [●] and [●] will be assigned to Class I, [●] and [●] will be assigned to Class II, and [●], [●] and [●] will be assigned to Class III.2 From and after the Closing, the Company will take all Necessary Action rights of the Founding Investors to cause the Investor Directors listed in Exhibit A hereto to be appointed designate directors to the BoardBoard and its committees shall be as set forth in the remainder of this Section 2.
(b) From and after the Closing Date until the Board Designation Expiration Date, in respect of each annual meeting or special meeting of the manner for selecting nominees stockholders of Holdco at which directors are to be elected, the Founding Investors, collectively, shall have the right, but not the obligation, to nominate for election to the Board of Directors in any applicable election that number of individuals determined in accordance with Section 2.1(c) below (the “Founding Investor Nominees”). Holdco will use reasonable best efforts, including taking all necessary action (to the extent permitted by applicable law and to the extent such action is consistent with the fiduciary duties of the directors under Delaware law), to cause the Founding Investor Nominees to be elected to serve as follows, subject to Section 3.4:directors on the Board of Directors.
(ic) In connection with The number of Founding Investor Nominees which Holdco shall cause to be elected at each annual meeting or special meeting of the stockholders of the Company Holdco at which directors are to be elected (each is that number which, assuming all such annual or special meetingindividuals are successfully elected to the Board of Directors, an “Election Meeting”)when taken together with any incumbent director of a different class nominated by the Founding Investors and not standing for election in such election, would result in the Investor shall have the right to designate for nomination a number of Investor directors on the Board of Directors nominated by the Founding Investors as follows: specified below:
(Ai) during any time that up to five (5) directors, so long as the Investor Group and the Management Group Founding Investors collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent beneficially own (20%directly or indirectly) greater than 70% of the outstanding shares of Common Stock, two (2) Investor Directors or (B) during any time that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) of the outstanding shares of Common Stock, one (1) Investor Director.
(ii) The Investor shall give written notice to the Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, to the Company, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.Shares;
Appears in 1 contract
Samples: Business Combination Agreement (Learn CW Investment Corp)
Designees. (a) On the Closing Date, the Company will take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4:
(i) In connection with each annual or special meeting of stockholders of the Company at which directors are to be elected (each such annual or special meeting, an “Election Meeting”), the Investor The Shareholder Representative shall have the right to designate individuals for nomination a number of Investor Directors for election to the Board, and the Company shall cause such individuals to be nominated for election to the Board as follows: (A) during any time that for so long as the Investor Group and Founders continue to hold in the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, aggregate at least twenty percent (20%) 17% of the outstanding shares of Common Stock, the Shareholder Representative shall be entitled to designate two (2) Investor Directors or persons for nomination for election to the Board; (B) during any at such time that as the Investor Group and the Management Group do not collectively satisfy the tests set forth Founders hold in the preceding clause (A) aggregate less than 17%, but do collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (greater than 10%) , of the outstanding shares of Common Stock, the Shareholder Representative shall be entitled to designate one person for nomination for election to the Board and (1C) Investor Directorat such time as the Holders hold in the aggregate 10% or less of the outstanding shares of Common Stock, neither the Shareholder Representative nor any Holder shall have any further right to designate any person for nomination or election to the Board; provided that if the Holders collectively sell more than 5,000,000 shares of Common Stock pursuant to the Initial Offering, then the 17% referred to in this provision shall be reduced to a percentage equal to the percentage of the outstanding shares of Common Stock held in the aggregate by the Founders upon the closing of the sale of shares of Common Stock by the Holders pursuant to the Initial Offering minus 0.5%. Persons designated by the Shareholder Representative in accordance with the foregoing sentence shall be referred to as the “Holder Designees.” The remaining members of the Board shall be nominated by the Nominating Committee in accordance with the Governing Documents of the Company and shall be referred to as the “Other Directors”.
(ii) The Investor shall give written notice to the Governance Committee of At each such Investor Director no later than the date that is sixty (60) days before the first anniversary meeting of the date stockholders of the Company held after the Closing Date at which directors of the Company are to be elected, the Company shall nominate for election, and recommend that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provideelect, to the CompanyBoard each Holder Designee that the Shareholder Representative is entitled to designate for nomination and election at that time, such information about such individuals and the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance accordance with the applicable stock exchange rules and the applicable securities Laws, and to enable the Board provisions of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”Section 2.1(b)(i); provided, however, that if notwithstanding anything to the Investor fails contrary in this Agreement, the Company (and its Board) shall be under no obligation to give such notice recommend to the stockholders or vote in favor of a Holder Designee to the extent that (A) the Board (or the Required Information Nominating Committee) determines in good faith that the nomination or recommendation of such nominee by the Board would reasonably be expected to violate the Board’s duties under Applicable Law because (I) such nominee is unfit to serve as a timely manner, then director of the Investor shall Company or (II) service by such nominee as a director would reasonably be deemed expected to have nominated violate Applicable Law; or (B) in the incumbent Investor Director good faith judgment of the Board (or Investor Directors, as applicablethe Nominating Committee), in a timely manner. The Investor shall also provide light of the Company’s then applicable eligibility criteria for nominees to the CompanyBoard, upon reasonable request from such Holder Designee lacks suitable professional qualifications or an appropriate level of experience for service as a member of a board of directors of a publicly traded company of the size and stature of the Company and or otherwise does not meet such eligibility criteria in connection with providing the Required Information, evidence reasonably satisfactory to the Company any material respect. It is understood that the Investor Group and Board has determined that the Management Group collectively Beneficially Own Founders are eligible to serve as Holder Designees as of the number date of shares this Agreement through the date of Common Stock that would be required to designate the number Company’s 2013 annual meeting of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicablestockholders.
(iii) In the event that the Company amends its certificate of incorporation Shareholder Representative loses the right to provide that designate to the Board shall be classified into separate classes of directorsone or more designees provided for in Section 2.1(b)(i), then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be no director designated by the Investor Shareholder Representative pursuant to Section 3.1(b2.1(a)(i) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, include (x) the Investor Director(s) entitled to then in office shall be designated by the Investor pursuant to Section 3.1(b) in the slate of nominees recommended by the Board to the Company’s stockholders for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies in favor of the election of such Investor Director(s) and (iii) to cause the Investor Director(s) to be elected to the Board, including recommending that the Company’s stockholders vote in favor of the Investor Director(s) in any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directors, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) required to resign from the Board prior to the second anniversary of the Closing Date as a result of the loss of such right; provided, however, that, following from and after the second anniversary of the Closing Date, one or both Holder Designees, as applicable, shall resign, if requested by the Nominating Committee, no later than 60 days after the Shareholder Representative loses the right to designate such resignation(s)designee(s) to the Board; provided that if the Shareholder Representative only loses the right to one designee, he shall select the Holder Designee to resign. The Board seat formerly occupied by any such designee shall become a seat for a director to be selected solely by the Nominating Committee or the Board. At its option, the Board may fill the vacancy in accordance with the Governing Documents or, subject to the terms of the Governing Documents and Applicable Law, may reduce its size by the number of Investor Directors serving vacated board seats. Each Holder Designee shall agree to this resignation requirement in advance of appointment to the Board.
(iv) As long as the Shareholder Representative has any right to designate one or more persons for nomination for election to the Board, as specified in Section 2.1(b)(i), at any time at which a vacancy shall be created on the Board does not exceed as a result of the total number death, disability, retirement, resignation, removal or otherwise of Investor Directors such designee, the Investor is Shareholder Representative shall be entitled to designate pursuant to Section 3.1(b).
(e) On for appointment by the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) remaining directors of the outstanding shares of Common Stock Company under the Governing Documents an individual to fill such vacancy and (iito serve as a director on the Board; provided, that such designee shall be subject to satisfying the qualification standards set forth in Section 2.1(b)(ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) same extent as a nominee for election to the Investor will have no further rights under this Section 3.1 or Section 3.2Board.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
Appears in 1 contract
Designees. (a) On the Closing Date, the Company will take all Necessary Action to cause the Investor Directors listed in Exhibit A hereto to be appointed to the Board.
(b) From and after the Closing Date until the Board Designation Expiration Date, the manner for selecting nominees for election to the Board will be as follows, subject to Section 3.4:
(i) In connection with At each annual or special meeting of the stockholders of the Company at which directors of the Company are to be elected or removed (each such annual or special meeting, an “Election Meeting”)) that is held on or before the Termination Date, the Investor Stockholders Representative, acting on behalf of the Majority Stockholders, and the Company shall have the right to designate individuals for nomination a number of Investor Directors for election to the Board, and the Company shall cause such individuals to be nominated for election to the Board, in each case as follows: :
(Ai) during any time that the Investor Group and the Management Group collectively Beneficially Own, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least twenty percent (20%) of the outstanding shares of Common Stock, The Stockholders Representative shall be entitled to designate two (2) Investor Directors or persons for nomination for election to the Board (Beach a “Stockholder Designee” and, collectively, together with any successor designees, the “Stockholder Designees”) during any time and who shall initially be Xxxxxx Xxxxx and Xxxx Xxxxxxx. To the extent that the Investor Group and the Management Group do not collectively satisfy the tests set forth in the preceding clause (A) but do collectively Beneficially OwnStockholders Representative, and have collectively Beneficially Owned at all times from the Closing Date through such Election Meeting, at least ten percent (10%) acting on behalf of the outstanding shares of Common StockMajority Stockholders, determines to change the person or persons who shall be a Stockholder Designee, the Stockholders Representative may designate one (1) Investor Director.
(ii) The Investor shall give written notice or more different persons to be Stockholder Designees, so long as such different persons are not objectionable to the Nominating and Governance Committee of each such Investor Director no later than the date that is sixty (60) days before the first anniversary Company to serve as directors of the date that the Company’s annual proxy for the prior year was first mailed to the Company’s stockholders and the Investor shall provide, or cause such individual(s) to provide, a public company of substantially comparable size to the Company, such information about such individuals acting reasonably and exercising its fiduciary duties in good faith. In addition to and not in limitation of the nomination to the Company at such times as the Company may reasonably request in order to ensure compliance with the applicable stock exchange rules and the applicable securities Lawsforegoing, and to enable the Board of any committee thereof to make determinations with respect to the qualifications of the individual(s) to be Investor Director(s) (the “Required Information”); provided, however, that if the Investor fails to give such notice or the Required Information in a timely manner, then the Investor shall be deemed to have nominated the incumbent Investor Director or Investor Directors, as applicable, in a timely manner. The Investor shall also provide to the Company, upon reasonable request from the Company and in connection with providing the Required Information, evidence reasonably satisfactory to the Company that the Investor Group and the Management Group collectively Beneficially Own the number of shares of Common Stock that would be required to designate the number of Investor Directors pursuant to this Section 3.1(b) then serving on the Board or then being designated to the Board in connection with an Election Meeting, as applicable.
(iii) In the event that the Company amends its certificate of incorporation to provide that the Board shall be classified into separate classes of directors, then proper provision shall be made such that the designees of the Investor shall be distributed as evenly as possible among such classes of directors in order to preserve the designation rights of the Investor in accordance with this Section 3.1.
(c) From and after the Closing Date until the Board Designation Expiration Date, the Company shall take all Necessary Actions to cause the Board to include the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) and otherwise to reflect the Board composition contemplated by Section 3.1, including the following: (i) at each Election Meeting, the Stockholders shall have the right to include (xand the Company shall include) the Investor Director(s) entitled to be designated by the Investor pursuant to Section 3.1(b) requisite number of such Stockholder Designees in the slate of nominees recommended by the Board to the Company’s stockholders Company Proxy Statement for election as directors, (ii) to solicit proxies in order to obtain stockholder approval of the election of the Investor Director(s), including causing officers of the Company who hold proxies (unless otherwise directed by the Company stockholder submitting such proxy) to vote such proxies Election Meeting and any supporting disclosure in favor of the election of such Investor Director(sStockholder Designees; and
(ii) and (iii) The Company shall be entitled to cause the Investor Director(s) to be elected designate five persons for nomination for election to the Board, including recommending that who shall initially be the current members of the Company’s stockholders vote in favor Board of the Investor Director(s) in Directors (each a “Company Designee” and, collectively, together with any proxy statement used by the Company to solicit the vote of its stockholders in connection with each Election Meeting.
(d) If at any time the number of Investor Directors serving on the Board exceeds the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b), then unless otherwise requested by the Board by action of the Non-Affiliated Directorssuccessor designees, the Investor shall promptly (and in any event prior to the time the Board next takes any action, whether at a meeting or by written consent) cause one or more such Investor Director(s) to resign from the Board such that, following such resignation(s), the number of Investor Directors serving on the Board does not exceed the total number of Investor Directors the Investor is entitled to designate pursuant to Section 3.1(b“Company Designees”).
(e) On the earliest to occur of (the “Board Designation Expiration Date”) (i) the Investor Group and the Management Group collectively Beneficially Owning less than ten percent (10%) of the outstanding shares of Common Stock and (ii) such date that the Investor delivers a written waiver of its rights under this Section 3.1 and Section 3.2 to the Company (which shall be irrevocable) the Investor will have no further rights under this Section 3.1 or Section 3.2.
(f) For the avoidance of doubt and subject to Section 3.5 and Section 3.7, the rights granted to Investor to designate members of the Board are additive to, and not intended to limit in any way, the rights that the Investor may have to nominate, elect or remove directors under the Organizational Documents or Delaware General Corporation Law.
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