Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement. (b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise. (c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 5 contracts
Sources: Acquisition Agreement (Fargo Electronics Inc), Acquisition Agreement (Fargo Electronics Inc), Acquisition Agreement (Fargo Electronics Inc)
Directors. (a) Promptly upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Sub pursuant to the Offer, Parent and Sub shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, directors on the Board of Directors such that of (i) the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by as will give Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply , a majority of such directors, and the Company in writingshall, at such time, cause Parent's and Sub's designees to be so elected by its existing Board of Directors and (ii) each subsidiary of the Company and each committee of the Board of Directors of the Company and each such subsidiary as will give Parent and Sub (collectively) a majority of such directors or committee, and be solely responsible forthe Company shall, any information with respect to either of them and their nomineesat such time, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of cause Parent's and Sub's designees under Section 2.3(ato be so elected. In the event that Parent's and Sub's designees are elected to the Board of Directors of the Company, until the Effective Time such Board of Directors shall have at least two directors who are directors on the date of this Agreement and who are not officers or employees of the Company (the "NON-EMPLOYEE DIRECTORS"). The provisions ; and provided that, in such event, if the number of Section 2.3(a) are in addition Non-Employee Directors shall be reduced below two for any reason whatsoever, the remaining Non-Employee Director shall designate a person to and fill such vacancy who shall be deemed to be an Non-Employee Director for purposes of this Agreement or, if no Non-Employee Directors then remain, the other directors shall designate two persons to fill such vacancies who shall not limit any rights that Merger Subbe officers or affiliates of the Company, or officers or affiliates of Parent or any of their Affiliates may its subsidiaries, and such persons shall be deemed to be Non-Employee Directors for purposes of this Agreement.
(b) Subject to applicable law, the Company shall take all action requested by Parent necessary to effect any election contemplated by this Section 1.3, including mailing to its stockholders the information statement containing the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder (the "14(F) STATEMENT"), and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Parent and Sub shall have as provided to the Company on a holder or beneficial owner of shares of Company Common Stock as a matter of law timely basis all information required to be included in the 14(f) Statement with respect to Parent's and Sub's designees). In connection with the election foregoing, the Company will promptly, at the option of Parent, either increase the size of the Company's and each subsidiary's Board of Directors (and each committee thereof) and/or obtain the resignation of such number of its current directors as is necessary to enable Parent's and Sub's designees to be elected or otherwiseappointed to, and to constitute a majority of, the Company's and each subsidiary's Board of Directors (and each committee thereof) as provided above.
(c) Following the election or appointment of Parent's and Sub's designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Non-Employee Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required by the Company to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment amend or termination of terminate this Agreement by the Company, (ii) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits rights or remedies under this Agreement, (iii) extend the time for performance of Parent's and Sub's respective obligations under this Agreement or (iv) approval of enter into any other action by agreement with Parent, Sub or their respective Affiliates that would prevent or materially delay the Company which could adversely affect the interests consummation of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyMerger.
Appears in 4 contracts
Sources: Merger Agreement (Omnicare Inc), Merger Agreement (NCS Healthcare Inc), Merger Agreement (Omnicare Inc)
Directors. (a) Promptly Effective upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than for Shares by Offeror pursuant to the Offer such that Offeror shall own at least a majority of the issued Shares and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant from time to the Offertime thereafter, Parent shall be entitled to designate for appointment or election up to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that equals the percentage product of its designees (i) the total number of directors on the Board shall equal of Directors (giving effect to any increase in the number of directors pursuant to this Section 1.3) multiplied by (ii) the percentage that the number of the outstanding shares of Company Common Stock Shares owned of record by Parent and each Sub bears to the total number of its direct or indirect Subsidiaries. In furtherance thereofShares outstanding on a primary basis, and the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer to be on elected or appointed to the Board of Directors) to be so appointed or elected to , including, without limitation, increasing the Company's Board, and in furtherance thereof, to number of directors and/or securing the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation resignations of such number of its current incumbent directors as is necessary to give effect enable Parent's designees to be elected to the foregoing provisionBoard of Directors and to cause Parent's designees to be so elected. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (x) each committee of the Company's Board of Directors, (y) each board of directors of each Subsidiary (as defined below) of the Company and (z) each committee of each such board. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 2.3 of this Agreement), the Company shall use its best efforts to ensure that not less than two persons who are directors on the date hereof shall remain as members of the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Continuing Directors"); provided) until the Effective Time. In the event there is only one Continuing Director, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent such Continuing Director shall have failed the right to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Companyreasonably acceptable to Offeror, Parent or any of their respective Subsidiaries (any such person being referred to herein as become a "Qualified Person"), willing to serve as an Independent Continuing Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for . For purposes of this Agreement, "Subsidiary" means any corporation or if no Independent Directors then remain, the other directors shall be required entity of which securities or other ownership interests having ordinary voting power to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) elect a majority of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election board of directors or otherwise.
(c) Following the election other persons performing similar functions are directly or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action indirectly owned by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyor Parent, as applicable.
Appears in 4 contracts
Sources: Merger Agreement (Bertuccis Inc), Merger Agreement (Ne Restaurant Co Inc), Merger Agreement (Bertuccis Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority consummation of the issued Stock Purchase and outstanding shares the acceptance for payment by the Company of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferShares, Parent Buyer shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on Shares owned by Buyer bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause ParentBuyer's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain Directors, including, without limitation, increasing the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionand seeking and accepting resignations of incumbent directors. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent Buyer to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (x) each committee of the Company's such Board (other than any committee of Directorssuch Board established to take action under this Agreement), (y) each board of directors of each Subsidiary (as defined in Section 4.06) and (z) each committee of each such board. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 2.01(b)), the Company shall retain as members of its Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent DirectorsCOMPANY DESIGNEES"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company's obligations to appoint designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act (as defined in Section 4.03) and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder 14f-i in order to fulfill its obligations obligation under this Section 2.3(a), including mailing 1.03 and shall include in the Schedule 13E-4 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 3 contracts
Sources: Merger Agreement (Hilite Industries Inc), Merger Agreement (Hilite Mergeco Inc), Merger Agreement (Maher Donald M)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than for any Shares by Purchaser pursuant to the Amended Offer which represent at least a majority of the issued and outstanding shares of Company Common Stock Shares (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis) and from time to the Offertime thereafter, Parent Praxair and Purchaser shall be entitled to designate for appointment or election members of the Board such that Praxair and Purchaser, subject to compliance with Section 14(f) of the Company's then existing Board of DirectorsExchange Act, upon written notice to the Company, such will have a number of directorsrepresentatives on the Board, rounded up to the next whole number, equal to the product of (x) the total number of directors on the Board of Directors such that the percentage of its designees on the Board shall equal multiplied by (y) the percentage of the outstanding shares Shares beneficially owned by Purchaser or its affiliates; provided, that, any action to be taken prior to the Effective Time (as defined in Section 2.3 hereof) by the Board with respect to this Agreement shall be approved by a majority of Company Common Stock owned those directors of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons who have not been designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of DirectorsPraxair or Purchaser. Notwithstanding the foregoing, until the Effective Time, the Company and Praxair shall use all reasonable efforts to retain as members of Company's Board of Directors of the Company shall have at least two directors who at the time are directors of the Company on the date of this Agreement and who are not neither officers of Praxair or the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries affiliates), nor designees of Purchaser (or any such person being referred to herein as a of its affiliates), nor shareholders or affiliates of Purchaser (or any respective affiliate) (the "Qualified PersonDisinterested Directors"). The Company shall, willing upon request by Praxair or Purchaser, promptly increase the size of the Board to serve as an Independent Directorthe extent permitted by the Company's Restated Certificate of Incorporation (the "Company Charter") and, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be extent required to designate two Qualified Persons to fill comply with this Section 1.3, secure the resignations of such vacancies, and such persons shall be deemed to be Independent Directors for purposes number of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) directors as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parentenable Praxair's designees to be elected to the Company's Board of Directors and shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parentcause Praxair's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwisebe so elected.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 3 contracts
Sources: Merger Agreement (Px Acquisition Corp), Merger Agreement (Cbi Industries Inc /De/), Merger Agreement (Px Acquisition Corp)
Directors. (a) Promptly upon the purchase of and payment for, and as long as for Company Shares by the Parent directly or indirectly owns, not less than the Purchaser representing at least a majority of the issued and outstanding shares of Company Common Stock Shares on a fully diluted basis by Fully Diluted Basis, the Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall will be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall will equal the percentage of the outstanding shares of Company Common Stock Shares on a Fully Diluted Basis owned of record by the Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shallwill, upon request of Merger Subthe Purchaser, use its commercially reasonable efforts promptly to cause the Parent's designees (and any replacement designees in the event that any designee shall will no longer be on the Board of Directors) to be so appointed or elected to the Company's BoardBoard of Directors, and in furtherance thereofand, to the extent necessary, increase the size of the Board of Directors or use its commercially reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall will also, upon the request of Parentthe Purchaser, use its commercially reasonable efforts to cause the Persons (as defined in SECTION 4.1) designated by the Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. Notwithstanding the foregoing, until the Effective TimeTime (as defined in SECTION 2.3), the Board of Directors of the Company shall will have at least two three (3) directors who are directors of the Company on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the "Independent DirectorsINDEPENDENT DIRECTORS"); provided, however, that (x) notwithstanding the foregoing, in no event shall will the requirement to have at least two three Independent Directors result in the Parent's designees constituting less than a majority of the Company's Board of Directors unless the Parent shall will have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be is reduced below two three (3) for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two three then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall will be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate (as defined in SECTION 4.9) of the Company, the Parent or any of their respective Subsidiaries and who is reasonably acceptable to the Parent (any such person being referred to herein as a "Qualified PersonQUALIFIED PERSON"), willing to serve as an Independent Director, in which case such remaining Independent Director shall will be entitled to designate any such Qualified Person or Persons to fill such vacancyvacancies, and such designated Qualified Person shall will be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall Directors will be required to designate two three (3) Qualified Persons to fill such vacancies, and such persons shall will be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company's obligations to appoint the Parent's designees to the Company's Board of Directors will be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall will promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a)pursuant to (a) above, including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall will mail together with the Schedule 14D-9 if it receives from the Parent and Merger Sub the Purchaser the information below on a timely basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)pursuant to (a) above. The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall the Purchaser will supply the Company in writing, and be solely responsible for, writing any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of the Parent's designees under Section 2.3(a)pursuant to (a) above. The provisions of Section 2.3(a(a) above are in addition to and shall will not limit any rights that Merger Subthe Purchaser, the Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law Law with respect to the election of directors or otherwise.
(c) Following the election or appointment of the Parent's designees pursuant to Section 2.3(a)as set forth above, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be is only one Independent Director then in office, the Independent Director) shall will be required to authorize (and such authorization shall will constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shallwill, unless otherwise required by lawLaw, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension other action of time for performance the Company's Board of Directors under or in connection with this Agreement that in any obligation manner adversely affects the holders of Company Shares, as determined by any of the Independent Directors, or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies rights under this Agreement, or (iv) approval . The Independent Directors will have the authority to retain such counsel and other advisors at the expense of any other action by the Company which could adversely affect the interests as determined appropriate by any of the Stockholders (other than Parent and Merger Sub) with respect Independent Directors. In addition, the Independent Directors will have the authority to institute any action, on behalf of the transactions contemplated herebyCompany, to enforce performance of this Agreement.
Appears in 3 contracts
Sources: Acquisition Agreement (Lante Corp), Acquisition Agreement (Sbi & Co), Acquisition Agreement (Lante Corp)
Directors. (a) Promptly Subject to compliance with applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by the issued and outstanding Purchaser for shares of Company Common Stock which represent at least a majority of the Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries basis) pursuant to the OfferOffer and from time to time thereafter, Parent Crane shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that of the percentage Company as is equal to the product of its designees the total number of directors on the Board shall equal of Directors of the Company (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the aggregate number of the outstanding shares of Company Common Stock beneficially owned by Crane or its affiliates bears to the total number of record by Parent shares of Company Common Stock outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubCrane, use its reasonable efforts promptly take all actions (but specifically excluding the calling of a shareholders meeting) necessary to cause ParentCrane's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to elected, including, if necessary, amending the Company's Board, and in furtherance thereof, By-laws of the Company to the extent necessary, increase the size of permitted to be amended by the Board of Directors and seeking the resignations of one or use its reasonable efforts more existing directors; provided, however, that prior to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall always have at least not less than two directors members who are directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent Current Directors"); provided, however, that (x) notwithstanding the foregoingand, in no event shall the requirement Crane's sole discretion, up to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if five Current Directors. If the number of Independent Current Directors shall be is reduced prior to the Effective Time below two for any reason whatsoever (the number of Current Directors so specified by Crane due to the death or if immediately following Consummation resignation of one or more of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Current Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, director or directors who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director are Current Directors shall be entitled to designate any such Qualified Person designate, by majority action of the remaining Current Directors or Persons action of the sole remaining Current Director, one or more persons, as the case may be, that has not been designated by, and is not an Affiliate of, Crane to fill such vacancy, vacancy or vacancies and such designated Qualified Person who shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Current Directors for all purposes of this Agreement.
(b) The Company's obligations to appoint Crane's designees to the Board of Directors of the Company shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.03 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them the Company and their nominees, officers, its officers and directors and Affiliates as is required by under such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition order to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies fulfill its obligations under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebySection 1.
Appears in 3 contracts
Sources: Merger Agreement (Liberty Technologies Inc), Merger Agreement (Liberty Technologies Inc), Merger Agreement (Crane Co /De/)
Directors. (a) Promptly Subject to compliance with the DGCL, the Company's Certificate of Incorporation and other applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than by the Purchaser for Shares purchased pursuant to the Offer constituting at least a majority of the issued outstanding Shares, and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant from time to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereoftime thereafter, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause the Board to include a number of Parent's designees (and any replacement such that Parent's designees in the event that any designee shall no longer be on constitute a percentage of the Board of Directors) to be so appointed or elected as nearly equal as practicable to the Company's percentage of the outstanding Shares beneficially owned by Parent (which shall be at least a majority of the Board, and in furtherance thereof, to ). Such necessary actions may include accepting the extent necessary, increase resignations of those incumbent directors designated by the Company or increasing the size of the Board of Directors or use its reasonable efforts and causing Parent's designees to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")be elected; provided, however, that (x) notwithstanding the foregoingCompany shall use its reasonable best effort to comply with the foregoing without increasing the size of the Board above twelve members; and provided, in no event further, that Parent agrees that the Company may retain, and the Parent shall the requirement cause to have be retained, at least two Independent Directors result three incumbent directors on the Board prior to the Effective Time (as hereinafter defined). If any of the incumbent directors become unavailable or unwilling to serve for any reason, Parent shall cause such vacancy or vacancies to be promptly filled by other incumbent directors willing to serve in Parentsuch capacity, or their designees. The date on which Purchaser's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing Board is herein referred to as the "Control Date." Upon written request by the Purchaser, the Company will use its reasonable best efforts to cause the designees of the Purchaser to constitute a percentage as nearly equal as practicable to the percentage of representation on the Board of Directors after giving effect to this Section 1.3 on (i) each committee of the Board of Directors; (ii) the board of directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate each subsidiary of the Company, Parent or any ; and (iii) each committee of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes subsidiaries' boards of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementdirectors.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill In satisfying its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors Board, the Company shall be subject to compliance comply with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, if applicable. Parent or Merger Sub The Company shall supply promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 1.3 and shall include in the Company in writing, and be solely responsible for, any Schedule l4D-9 such information with respect to either of them the Company and their nominees, its officers and directors as is required under such Section and Rule in order to fulfill its obligations under this Section 1.3. Parent will supply to the Company complete and accurate information with respect to itself and its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseRule.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the CompanyCompany or the Board, (ii) any extension by the Company or the Board of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rights, benefits or remedies under this Agreementrights hereunder, or (iv) any consent, approval or recommendation of any other action by the Company which could adversely affect or Board required hereunder, will (if there are any then serving directors not affiliated with or designated by Parent) require the interests concurrence of, and shall be effective if and only if approved by, a majority of the Stockholders (other than directors of the Company then in office who are not affiliated with Parent and Merger Sub) with respect to the transactions contemplated herebywere not designated by Parent.
Appears in 3 contracts
Sources: Merger Agreement (Lilly Industries Inc), Merger Agreement (Guardsman Products Inc), Merger Agreement (Lilly Industries Inc)
Directors. (a) Promptly Subject to compliance with applicable Laws, promptly upon the purchase acceptance for payment of and payment for, and such number of Shares as long as Parent directly or indirectly owns, not less than represents at least a majority of the issued and then-outstanding shares of Company Common Stock Shares (determined on a fully diluted basis by Parent or any as of its direct or indirect Subsidiaries immediately following the Acceptance Time) pursuant to the OfferOffer (the “Acceptance Time”) and from time to time thereafter, Parent shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (giving effect to the directors elected or designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees Shares beneficially owned by Parent, the Purchaser or any of their respective Affiliates bears to the total number of Shares then outstanding; provided, however, Parent shall be entitled to designate at least a majority of the directors on the Company Board shall equal (as long as Parent, the percentage Purchaser and their Affiliates beneficially own a majority of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofShares); provided, further, that prior to the Effective Time, the Company shallBoard shall always have at least two (2) members who are not officers, upon request directors, employees or designees of Merger SubParent or the Purchaser or any of their Affiliates (“Purchaser Insiders”). If the number of directors who are not Purchaser Insiders is reduced below two (2) prior to the Effective Time, use its reasonable efforts promptly the remaining director who is not a Purchaser Insider shall be entitled to designate a Person to fill such vacancy who is not a Purchaser Insider and who shall be a director not deemed to be a Purchaser Insider for all purposes of this Agreement, and the Company shall cause Parent's designees (and any replacement designees in such designee to be appointed to the event that any designee shall no longer be Company Board. If, notwithstanding compliance with the foregoing provisions, the number of directors who are not Purchaser Insiders is reduced to zero, then the other directors on the Company Board shall designate and appoint to the Company Board two (2) directors who are not officers, directors, employees or otherwise affiliated with the Purchaser or Parent (other than as a result of Directors) such designation). After the Acceptance Time, the Company shall take all actions as are necessary to enable Parent’s designees to be so appointed elected or elected designated to the Company's BoardCompany Board (including, and in furtherance thereof, to the extent if necessary, increase seeking the resignations of one or more existing directors or increasing the size of the Company Board of Directors or both) in compliance with applicable Law. The Company shall use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its commercially reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is Persons designated by Parent on the Company's Company Board of Directors of (i) each committee of the Company's Board Company Board, (ii) each board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board directors (or other similar body) of Directors each Company Subsidiary and (iii) each committee of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingeach such board, in no event shall each case only to the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementextent permitted by applicable Law.
(b) The Company’s obligations to appoint Parent’s designees to the Company Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the 2.3 and shall include any information required by such to be disclosed under Section 14(f) and Rule 14f-1 (which in the Schedule 14D-9. Parent shall supply or cause to be supplied to the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and Parent, the Purchaser, their nominees, respective officers, directors and Affiliates affiliates and proposed designees to the Company Board required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's ’s designees pursuant to this Section 2.3(a)2.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, the Purchaser hereunder and (iii) any waiver or exercise enforcement of any of the Company's rights, benefits ’s rights or remedies under this Agreementany of the obligations of Parent or the Purchaser hereunder will require the consent of, or (iv) approval be taken at the direction of, a majority of any other action by the directors of the Company which could adversely affect then in office who are not Purchaser Insiders (or the interests approval or direction of the Stockholders sole director if there shall only be one (other than Parent 1) director then in office who is not a Purchaser Insider). Following the election or appointment of Parent’s designees pursuant to this Section 2.3 and Merger Sub) prior to the Effective Time, any actions with respect to the transactions contemplated herebyenforcement of this Agreement by the Company shall be effected only by the action of a majority of the directors of the Company then in office who are not Purchaser Insiders (or the action of the sole director if there shall only be one (1) director then in office who is not a Purchaser Insider), and such authorization shall constitute the authorization of the Company Board, and no other action on the part of the Company, including any action by any other director of Company, shall be required to authorize any such action.
(d) After the Acceptance Time, the Company shall also, upon Parent’s request, take all action necessary to elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 5615(c) and make all necessary filings and disclosures associated with such status.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Quest Diagnostics Inc), Merger Agreement (Celera CORP)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for any Shares pursuant to this Agreement by Parent or any of its direct or indirect Subsidiaries pursuant to subsidiaries which represents at least a majority of the Offeroutstanding Shares (on a fully diluted basis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage number of its designees on Shares so accepted for payment bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the Company shall, upon request of Merger Subthe Purchaser, use its reasonable best efforts promptly either to cause increase the size of its Board of Directors or secure the resignations of such number of its incumbent directors, or both, as is necessary to enable Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, shall take all actions available to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts Company to obtain the resignation of such number of its current directors as is necessary cause Parent's designees to give effect to the foregoing provisionbe so elected. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary (as defined in Section 3.1) of the Company and (iii) each committee (or similar body) of each such board. Notwithstanding the foregoing, after such purchase and payment until the Effective TimeTime (as defined in Section 1.5 hereof), the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement use all reasonable efforts to have at least two Independent Directors result in Parent's designees constituting less than a majority members of the Company's Board of Directors unless who are neither officers of Parent nor designees, shareholders or affiliates of Parent and Parent and Purchaser shall have failed take no action to designate a sufficient number of Persons to constitute at least a majority and (y) if prevent or inhibit the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) foregoing. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a1.3(a), including mailing to stockholders shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint enable Parent's designees to be elected to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub shall the Purchaser will supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subwhich the Purchaser, Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(cb) Following From and after the election or appointment of time, if any, that Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization a majority of the Company's Board of Directors, and no other action on the part any amendment of the Company, including any action by any committee thereof or any other director Restated Articles of Incorporation of the CompanyCompany (the "Articles of Incorporation") or the Amended and Restated Bylaws of the Company (the "Bylaws"), shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger Subthe Purchaser hereunder, (iii) any waiver or exercise of any condition for the benefit of the Company, any waiver of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyby this Agreement which materially adversely affects the interests of the shareholders of the Company may not be effected without the action of a majority of the directors of the Company then in office who were not officers of Parent or designees, shareholders or affiliates of Parent; provided, that if there shall be no such directors, such actions may be effected by majority vote of the entire Board of Directors of the Company.
Appears in 3 contracts
Sources: Merger Agreement (American Studios Inc), Merger Agreement (Pca International Inc), Merger Agreement (American Studios Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by Purchaser for the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares tendered pursuant to the OfferOffer in accordance with the terms of this Agreement, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, directors on the Board of Directors of the Company, rounded to the nearest whole number, as will give Purchaser representation on such that Board equal to at least the number of directors which equals the product of the total number of the directors on such Board (after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that such number of its designees on Shares owned and paid for by the Board shall equal Purchaser or an Affiliate of Purchaser bears to the percentage number of Shares outstanding. Promptly after consummation of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofOffer, the Company shall, upon request of Merger SubParent, use its reasonable best efforts promptly either to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain of the resignation Company or, at the Company's election, secure the resignations of such number of its current incumbent directors as is necessary to give effect enable Parent's designees to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts be so elected or appointed to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board Board, and shall cause Parent's designees to be so elected or appointed (the date of Directors of each committee of such election or appointment being the Company's Board of Directors"Appointment Date"). Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 2.3 hereof), the Company and Parent shall use all reasonable best efforts to retain as members of the Company's Board of Directors of the Company shall have at least two three directors who are directors of the Company on the date of this Agreement hereof and who are not officers representatives of the Company Parent (the "Independent Directors"); provided, however, provided that (x) notwithstanding subsequent to the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting purchase of and payment for not less than a majority of the Company's Board of Directors unless outstanding Shares pursuant to the Offer, Parent shall always have failed to designate a sufficient number of Persons to constitute its designees represent at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors entire Board of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, . As used in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no the term "Independent Directors then remain, the other directors Directors" shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes initially mean each of this AgreementMs. ▇▇▇▇▇▇ ▇.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 3 contracts
Sources: Merger Agreement (Bowne & Co Inc), Agreement and Plan of Merger (Bowne & Co Inc), Merger Agreement (Donnelley Enterprise Solutions Inc)
Directors. (a) Promptly Buyer and the Company, including the Company Board and each of the directors, shall use their respective best efforts, including through their (vote in favor of any) nomination or appointment of any person to the Company Board and their (vote in favor of any) resignation from the Company Board, to ensure that the Company Board will, upon the purchase Closing, be composed of seven (7) directors, five (5) of which will be designated by Buyer (the “Buyer Directors”) in writing, in its sole discretion, as soon as reasonably practicable and payment forin any event prior to convening the EGM, and two (2) of whom will be current non-executive directors of the Company, and at all times independent from Buyer (the “Independent Directors”). The initial Independent Directors will be mutually agreed upon by Buyer and the Company.
(b) Each Independent Director shall resign from, and the Company shall take such other action necessary to ensure that each such Independent Director ceases to be a director of, the Company Board upon the earliest of (i) such time after the Acceptance Time as long as Parent directly or indirectly owns, not less than a majority Buyer owns one hundred percent (100%) of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to Shares, (ii) the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage Second Step Distribution being paid in full and (iii) completion of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee liquidation of the Company's .
(c) If an Independent Director resigns from, or otherwise ceases to be a member of the, Company Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on prior to the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directorsresignation contemplated by Section 2.05(b), then Buyer shall procure that the number of Independent Directors required hereunder shall be one, unless the remaining respective Independent Director will be replaced by a new director that is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementindependent from Buyer.
(bd) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub Buyer shall supply to the Company in writingwriting any information regarding the Buyer Directors as required by applicable Laws in connection with the appointment of the Buyer Directors to the Company Board and the EGM, and be solely responsible for, for any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseinformation.
(ce) Following In addition to the election or appointment of Parent's designees pursuant to discharge contemplated by Section 2.3(a2.04(a)(iv), Buyer shall (i) at the approval by first annual general meeting of the Company held after the Closing, cause all members of the Company Board resigning effective upon the Acceptance Time to be fully and finally discharged for their acts of management or supervision, as applicable, and (ii) at the first annual general meeting of the Company held after the resignation of an Independent Director, cause such Independent Director to be fully and finally discharged for his or her acts of supervision; provided that Buyer shall not be required to cause the discharge of any director for acts as a result of fraud (bedrog), gross negligence (grove ▇▇▇▇▇▇), or willful misconduct (opzet) of such director.
(f) Notwithstanding any other required vote, the affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall will also be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) for approving:
(i) any amendment or termination restructuring that could reasonably be expected to lead to a dilution of this Agreement the shareholdings of the Minority Shareholders, other than (A) pursuant to a rights issue by the CompanyCompany or any other share issue where the Minority Shareholders have been offered an opportunity to subscribe pro rata in accordance with their then existing shareholding in the Company (voorkeursrecht), (B) the Asset Sale and Second Step Distribution or (C) the Compulsory Acquisition; and
(ii) any extension other form of time for performance of any obligation unequal treatment that prejudices or action hereunder by Parent could reasonably be expected to prejudice or Merger Sub, (iii) any waiver or exercise of any negatively affect the value of the Company's rightsShares or voting rights attached to the Shares held by the Minority Shareholders, benefits or remedies under this Agreement, but in any event not including (A) the Asset Sale and Second Step Distribution or (ivB) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyCompulsory Acquisition.
Appears in 3 contracts
Sources: Purchase Agreement, Purchase Agreement (NXP Semiconductors N.V.), Purchase Agreement (Qualcomm Inc/De)
Directors. (a) Promptly Section 1.3.1 Subject to compliance with applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares pursuant to the OfferOffer representing at least such number of Shares as shall satisfy the Minimum Condition, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of Shares beneficially owned by Parent or any of its designees on affiliates bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase seeking the size resignations of the Board of Directors one or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")more existing directors; provided, however, that (x) notwithstanding prior to the foregoingEffective Time, in no event the Company Board shall the requirement to always have at least two Independent Directors result in Continuing Directors.
Section 1.3.2 The Company's obligations to appoint Parent's designees constituting less than a majority of to the Company's Company Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.3 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a)1.3. The Company's obligations to appoint Parent's designees Parent will supply to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and itself, the Purchaser, their nominees, respective officers, directors and Affiliates affiliates and proposed designees to the Company Board required by such Section 14(f) and Rule 14f-1 as is necessary Rule, and the Company shall include such information in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseSchedule 14D-9.
(c) Section 1.3.3 Following the election or appointment of Parent's designees to the Company Board pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, any Adverse Matter (as defined below) shall require, in addition to any other affirmative votes required under the DGCL, the approval by affirmative vote or written consent of all not less than a majority of the Independent Directors then in office (orentire Company Board, if there which majority shall be only one Independent Director then in office, include the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization concurrence of a majority of the Company's Board of Continuing Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.;
Appears in 2 contracts
Sources: Merger Agreement (Innoveda Inc), Merger Agreement (Mentor Graphics Corp)
Directors. (a) Promptly Effective upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next nearest whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors and (ii) the percentage that the percentage number of its designees on shares of Common Stock beneficially owned by Parent bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next nearest whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are (other than the Independent Committee) and (ii) each board of directors of the Company on the date of this Agreement and who are not officers each subsidiary of the Company (and each committee thereof) that represents the "Independent Directors"); provided, however, that (x) notwithstanding same percentage as such individuals represent on the foregoing, in no event shall the requirement to have at least two Independent Board of Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following During the election term of this Agreement, Parent will, and will cause all of its subsidiaries to, take all actions necessary to permit the Independent Committee to continue in existence without diminution of its powers or appointment duties and its members to consist solely of Parent's designees pursuant to Section 2.3(a)the members thereof on the date hereof, or any successors selected (with the approval by affirmative vote or written consent of all a majority of the members of the Independent Committee) by the Board of Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of DirectorsCompany who are not otherwise employed by Parent or its affiliates. Any amendment, and no other action on the part of the Company, including any action by any committee thereof waiver or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect hereunder, and any action taken by the interests Company or its Board of Directors in connection therewith, shall require the concurrence or consent of a majority of the Stockholders (other than Parent and Merger Sub) with respect to members of the transactions contemplated herebyIndependent Committee.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (McDermott J Ray Sa), Merger Agreement (McDermott International Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than for Shares by the Purchaser which represent at least a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferShares, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage number of its designees on Shares so accepted for payment bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the Company shall, upon the request of Merger SubParent, use its best reasonable efforts promptly either to increase the size of its Board of Directors, including amending the By-Laws of the Company if necessary to so increase the size of the Company's Board of Directors, or secure the resignations of such number of its incumbent directors, or both, as is necessary to enable Parent's designees to be so elected to the Company's Board of Directors, and shall take all actions available to the Company to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionelected. At such time, the Company shall alsoshall, upon the request of if requested by Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board (ii) each board of Directors directors (or similar body) of each Subsidiary (as defined in Section 3.1 hereof) of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (yiii) if the number of Independent Directors shall be reduced below two for any reason whatsoever each committee (or if immediately following Consummation similar body) of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any each such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementboard.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 14f-l promulgated thereunder in order to fulfill its obligations under Section 2.3(a)1.3(a) hereof, including mailing to stockholders shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint enable Parent's designees to be elected to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub the Purchaser shall supply the Company in writing, and be solely responsible for, for any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a1.3(b) are in addition to and shall not limit any rights that Merger Subwhich the Purchaser, Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(c) Following In the election or appointment of event that Parent's designees pursuant are elected to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action until the Effective Time (as defined in Section 1.5 hereof), the Company's Board of Directors shall have at least three directors who are directors on the part date hereof and who would constitute Continuing Directors for purposes of Article VII of the Company's Articles of Incorporation (the "Independent Directors"), including provided that, in such event, if the number of Independent Directors shall be reduced below three for any action by reason whatsoever, any committee thereof remaining Independent Directors (or any Independent Director, if there is only one remaining) shall be entitled to designate persons to fill such vacancies who shall be deemed to be Independent Directors for purposes of this Agreement or, if no Independent Director then remains, the other director directors shall designate three persons to fill such vacancies who shall not be shareholders, affiliates or associates of Parent or the Purchaser and such persons shall be deemed to be Independent Directors for purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, in the event that Parent's designees are elected to the Company's Board of Directors, after the acceptance for payment of Shares pursuant to the Offer and prior to the Effective Time (as hereinafter defined), the affirmative vote of a majority of the Company, shall, unless otherwise required by law, Independent Directors shall be required to (a) amend or permitted to authorize) (i) any amendment or termination of terminate this Agreement by the Company, (iib) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits or remedies under this Agreementhereunder, or (ivc) approval of take any other action by the Company which could adversely affect the interests Company's Board of the Stockholders (other than Parent and Merger Sub) Directors under or in connection with respect to the transactions contemplated herebythis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Phonetel Technologies Inc), Merger Agreement (Communications Central Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as for Shares by Parent directly or indirectly owns, not less than any of its subsidiaries which represent at least a majority of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offerbasis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal Purchaser, Parent and any of their affiliates bears to the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding. In furtherance thereof, the The Company shall, upon request of Merger Subthe Purchaser, use its all reasonable efforts promptly either to cause increase the size of its Board of Directors (which, pursuant to the Company's Restated Certificate of Incorporation, as amended (the "Certificate of Incorporation"), has no maximum number of directors) or, at the Purchaser's election, secure the resignations of such number of its incumbent directors as is necessary to enable Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, shall cause Parent's designees to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directorsbe so elected. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 1.5 hereof), the Company shall retain as members of its Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")hereof; provided, howeverthat subsequent to the purchase of and -------- ---- payment for Shares pursuant to the Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's entire Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub the Purchaser shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by Section 14(f) and Rule 14f-1. Upon receipt of such information from Parent or the Purchaser, the Company shall include in the Schedule 14D-9 (as an annex or otherwise) the information required by Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of to enable Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect be elected to the election Company's Board of directors or otherwiseDirectors.
(cb) Following From and after the election or appointment of time, if any, that Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization a majority of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger Subthe Purchaser hereunder, (iii) any waiver of any condition or exercise of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests hereunder may be effected only by unanimous vote of the Stockholders (other than Parent and Merger Sub) with respect to entire Board of Directors of the transactions contemplated herebyCompany.
Appears in 2 contracts
Sources: Merger Agreement (Societe Nationale D Exploitation Indus Des Tabacs Et Allumet), Merger Agreement (Consolidated Cigar Holdings Inc)
Directors. (a) Promptly upon Upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Sub pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board Offer of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage Shares which represents a majority of the outstanding shares of Company Common Stock owned of record by Parent (on a fully diluted basis), and each of its direct or indirect Subsidiaries. In furtherance thereoffrom time to time thereafter, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly parties hereto agree to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two such number of directors who are directors of designated by Sub, rounded up to the Company on the date of this Agreement and who are not officers of the Company next whole number (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, but in no event shall the requirement to have at least more than two Independent Directors result in Parent's designees constituting less than a majority the total number of directors on the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any as such person being referred to herein number may be increased as a "Qualified Person"provided herein), willing to serve as an Independent Directorwill give Sub, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply Act, representation on the Board of Directors of the Company equal to the product of (i) the number of directors on the Board of Directors of the Company (giving effect to any increase in writing, and be solely responsible for, any information with respect the number of directors pursuant to either of them and their nominees, officers, directors and Affiliates required by such this Section 14(f1.4) and Rule 14f-1 (ii) the percentage (the "Board Percentage") that such number of Shares so purchased bears to the aggregate number of Shares outstanding and the Company shall, upon request by Sub and subject to applicable law, promptly satisfy the Board Percentage by (A) increasing the size of the Board of Directors of the Company or (B) using its reasonable efforts to secure the resignations of such number of directors as is necessary in connection with the appointment or election of any of Parentto enable Sub's designees under Section 2.3(ato be elected to the Board of Directors of the Company and shall cause Sub's designees promptly to be so elected, provided that no such action shall be taken which would result in there being, prior to the consummation of the Merger, less than two directors of the Company who are Continuing Directors (as defined below), except to the extent that all Continuing Directors have resigned. At such times, if requested by Sub, the Company will use its best efforts to cause each committee of the Board of Directors of the Company to include persons designated by Sub constituting the Board Percentage of such committee. The provisions Company shall promptly amend, or cause to be amended, its by-laws, if necessary, to increase the size of Section 2.3(a) are in addition the Board of Directors of the Company if such increase is required to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to satisfy the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees Board Percentage pursuant to this Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.l.
Appears in 2 contracts
Sources: Merger Agreement (Hotel Reservations Network Inc), Merger Agreement (Travelnowcom Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as the Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by the Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, the Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by the Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Subthe Purchaser, use its reasonable efforts promptly to cause the Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parentthe Purchaser, use its reasonable efforts to cause the Persons designated by the Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary of the Company and (iii) each committee (or similar body) of each such board. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in the Parent's designees constituting less than a majority of the Company's Board of Directors unless the Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, the Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors Directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a1.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from the Parent and Merger Sub the Purchaser the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a1.3(a). The Company's obligations to appoint the Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Parent or Merger Sub the Purchaser shall supply the Company in writing, and be solely responsible for, writing any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of the Parent's designees under Section 2.3(a1.3(a). The provisions of Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subthe Purchaser, the Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of the Parent's designees pursuant to Section 2.3(a1.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by the Parent or Merger Sub, the Purchaser or (iii) any waiver or exercise of any of the Company's rights, benefits or remedies rights under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Newport News Shipbuilding Inc), Merger Agreement (General Dynamics Corp)
Directors. (a) Promptly upon Before the closing of the Offer, the Company shall amend, or cause to be amended, its by-laws to provide for each of the matters set forth on Schedule 1.4.
(b) Upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Sub pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board Offer of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage Shares which represents a majority of the outstanding shares of Company Common Stock owned of record by Parent (on a fully diluted basis), and each of its direct or indirect Subsidiaries. In furtherance thereoffrom time to time thereafter, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly parties hereto agree to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two such number of directors who are directors of designated by Sub, rounded up to the Company on the date of this Agreement and who are not officers of the Company next whole number (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, but in no event shall the requirement to have at least more than two Independent Directors result in Parent's designees constituting less than a majority the total number of directors on the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any as such person being referred to herein number may be increased as a "Qualified Person"provided herein), willing to serve as an Independent Directorwill give Sub, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply Act, representation on the Board of Directors of the Company equal to the product of (i) the number of directors on the Board of Directors of the Company (giving effect to any increase in writing, and be solely responsible for, any information with respect the number of directors pursuant to either of them and their nominees, officers, directors and Affiliates required by such this Section 14(f1.4) and Rule 14f-1 (ii) the percentage (the "Board Percentage") that such number of Shares so purchased bears to the aggregate number of Shares outstanding and the Company shall, upon request by Sub and subject to applicable law, promptly satisfy the Board Percentage by (A) increasing the size of the Board of Directors of the Company or (B) using its reasonable efforts to secure the resignations of such number of directors as is necessary in connection with the appointment or election of any of Parentto enable Sub's designees under Section 2.3(ato be elected to the Board of Directors of the Company and shall cause Sub's designees promptly to be so elected, provided that no such action shall be taken which would result in there being, prior to the consummation of the Merger, less than two directors of the Company who are Continuing Directors (as defined below), except to the extent that all Continuing Directors have resigned. The provisions Company shall promptly amend, or cause to be amended, its By-Laws, if necessary, to increase the size of Section 2.3(a) are in addition the Board of Directors of the Company if such increase is required to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to satisfy the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees Board Percentage pursuant to this Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.l.
Appears in 2 contracts
Sources: Merger Agreement (International Home Foods Inc), Merger Agreement (International Home Foods Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board of Directors such as is equal to the product of the total number of directors on the Company Board of Directors (after giving effect to the directors elected or designated by Parent pursuant to this sentence) multiplied at the time of calculation by the percentage that the percentage aggregate number of Shares beneficially owned by Acquisition Sub, Parent and any of their affiliates bears to the total number of Shares then outstanding. The Directors so designated by Parent shall take office immediately after (1) the purchase of any Shares by Parent or any of its designees on the Board shall equal the percentage Subsidiaries as a result of which Parent and its Subsidiaries owns, beneficially, along (i) with any Shares beneficially owned by Parent or its Affiliates as of the date of this Agreement, or (ii) purchasable pursuant to the Stock Purchase Agreement, at least a majority of the then outstanding shares Shares, and (2) compliance with Section 14(f) of Company Common Stock owned of record by Parent the Exchange Act and each of its direct or indirect Subsidiaries. In furtherance thereofRule 14f-1 promulgated thereunder, whichever shall occur later; the date on which such Directors take office may be referred to hereinafter as the "Changeover Time." The Company shall, upon request of Merger SubParent's request, use its reasonable best efforts either to promptly increase the size of the Company Board of Directors, including by amending the Bylaws of the Company if necessary so as to increase the size of the Company Board of Directors, or promptly secure the resignations of such number of its incumbent directors, or both, as is necessary to enable Parent's designees to be so elected or designated to the Company's Board of Directors, and shall take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed elected or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of designated at such number of its current directors as is necessary to give effect to the foregoing provisiontime. At such time, the Company shall alsoshall, upon the request of Parent's request, use its reasonable efforts to also cause the Persons persons elected or designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of (1) each committee of the Company's Company Board of Directors. Notwithstanding the foregoing, until the Effective Time(2) each board of directors (or similar body) of each Company Subsidiary, the Board and (3) each committee (or similar body) of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingeach such board, in no event shall each case only to the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority extent permitted by applicable law or the rules of any stock exchange or trading market on which the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (Common Stock is listed or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)traded. The Company's obligations to appoint Parent's designees to the Company's Company Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including, but not limited to, mailing to stockholders (together with the Schedule 14D-9) the information required by Section 14(f) and Rule 14f-1 as is necessary to enable Parent's designees to be elected or designated to the Company Board of Directors, effective immediately after the purchase of any Shares by Parent or Merger any of its Subsidiaries, as a result of which Parent and its Subsidiaries owns beneficially, along with any Shares beneficially owned by Parent or its Affiliates as of the date of this Agreement, at least a majority of then outstanding Shares. Parent or Acquisition Sub shall supply in a timely manner to the Company in writingCompany, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates to the extent required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger any of Acquisition Sub, Parent or any of their Affiliates respective affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(cb) Following In the election or appointment of event that Parent's designees are elected or designated to the Company's Board of Directors, then, until the Effective Time, the Company shall cause the Company's Board of Directors to have at least two directors who are directors of the Company on the date hereof and who are not (1) officers, employees, independent contractors, associates or holders of any other security of the Company, other than equity securities (A) acquired in their capacity as a director of the Company pursuant to Section 2.3(aa director compensation plan available to all outside directors of the Company, or (B) which are directors qualifying shares, or (C) which are otherwise de minimis in amount, or (2) representatives of any of the foregoing, or of any Affiliates of the Company (the "Independent Directors"); provided, however, that if any Independent Director ceases to serve for any reason, the remaining Independent Director(s) shall be entitled to elect or designate another person (or persons) who is not a current or former officer, employee, independent contractor, associate or holder of any security of the Company (except as permitted above), or a current or former Affiliate of the approval Company (other than solely as a result of being a director of the Company), or a current or former officer, employee, associate or stockholder of Parent or Acquisition Sub, or a current or former officer, employee, associate or Affiliate of any competitor (as determined by Parent, in its good faith discretion) of the Company or its Affiliates ("Non-Related Party"), and such Non-Related Party (or Parties) shall be deemed to be an Independent Director for purposes of this Agreement. If no Independent Director then remains, the other directors shall designate two persons who are Non-Related Parties on the date hereof (or, in the event there shall be less than two directors available to fill such vacancies, such number of other Non-Related Parties who are directors on the date hereof) to fill such vacancies and such persons shall be deemed Independent Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, after the acceptance for payment of Shares pursuant to the Offer and prior to the Effective Time, the affirmative vote or written consent of all a majority of the Independent Directors then in office (or, or if there shall be only one Independent Director exists, then in office, the vote of such Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof 1) amend or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of terminate this Agreement by the Company, (ii2) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits or remedies hereunder, if such exercise or waiver materially and adversely affects holders of Shares, other than Parent or Acquisition Sub, (3) extend the time for performance of Parent's or Acquisition Sub's obligations under this Agreement, (4) take any action that is in any material respect in conflict with or inconsistent with the interests of Parent or Acquisition Sub under this Agreement unless otherwise consented to by Parent or Acquisition Sub, or (iv5) approval of take any other action by of the Company which could Board of Directors under or in connection with this Agreement if such action would materially and adversely affect the interests holders of the Stockholders (Shares other than Parent and Merger or Acquisition Sub; provided, however, that, if there shall be no Independent Directors, then notwithstanding the foregoing limitations any necessary or advisable actions (including those contemplated by any of clauses (1) with respect to through (5) of this Section 1.3(c)) may be effected by majority vote of the transactions contemplated herebyentire Company Board of Directors.
Appears in 2 contracts
Sources: Merger Agreement (Scientific Games Corp), Merger Agreement (Mdi Entertainment Inc)
Directors. (a) Promptly upon the purchase of and payment for, and Effective as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such timeClosing, the Company shall also, upon take such action as may be necessary to increase by two the request number of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board members of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least and to elect to fill such newly created vacancies two directors who are directors persons designated by the Investor. So long as the Investor is the beneficial owner of Company Voting Securities representing 10% or more of the Company on Outstanding Voting Power, the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Investor shall be entitled to designate any such Qualified Person two persons to serve as directors of the Company. So long as the Investor and its Affiliates are the beneficial owners of Company Voting Securities representing 5% or Persons to fill such vacancymore but less than 10% of the Outstanding Voting Power, and such designated Qualified Person the Investor shall be deemed entitled to be an Independent Director for purposes designate one person to serve as a director of this Agreement, or if no Independent Directors then remainthe Company. In the event that the Investor and its Affiliates are the beneficial owners of Company Voting Securities representing less than 5% of the Outstanding Voting Power, the other directors Investor shall not be required entitled to designate two Qualified Persons any person to fill such vacancies, and such serve as a director of the Company. Each of the persons shall be deemed designated by the Investor pursuant to be Independent Directors for purposes of this AgreementSection 2.1(a) is referred to herein as an "Investor Designee."
(b) The Company shall promptly use all reasonable efforts to cause the election of the required number of Investor Designees to the Board of Directors of the Company including taking the following actions: (i) at each annual meeting of Company stockholders at which an Investor Designee's term as a director expires or at any other meeting of the Company's stockholders at which directors are to be elected, if the Investor is still entitled to designate one or more persons to serve as a director of the Company in accordance with this Agreement, the Investor Designees shall be included in the slate of nominees recommended by the Company's Board of Directors to the stockholders for election as directors, unless either (x) an Investor Designee requests not to be so included in the slate of nominees, in which case such Investor Designee shall not be so included, or (y) service by an Investor Designee as a director or his nomination for election as a director is violative of applicable law or regulation (provided that, in such case, the Investor shall be provided an opportunity to designate an alternate person to serve as a director). and (ii) in the event that an Investor Designee is unable to serve, or once having commenced to serve, is removed or withdraws from the Board of Directors of the Company, the Investor will have the right to designate such person's replacement and the Company agrees to take all actions required pursuant reasonable action within its power to Section 14(f) cause the election of the Exchange Act substitute Investor Designee to the Board of Directors of the Company as soon as possible following such person's designation.
(c) In the event that, any time after an annual meeting of Company stockholders in connection with which the Investor was entitled to designate two Investor Designees and Rule 14f-1 promulgated thereunder in order such Investor Designees were elected as directors, such Investor Designees are still serving as directors, and prior to fulfill its obligations under Section 2.3(athe next annual meeting of Company stockholders the Investor shall beneficially own Company Voting Securities representing less than 10% but 5% or more of the Outstanding Voting Power, then, at the request of the Company (provided Investor at the time of such request shall still beneficially own Company Voting Securities representing less than 10% but 5% or more of the Outstanding Voting Power), including mailing the Investor shall use all reasonable efforts to cause one of the Investor Designees then in office to resign as a director. In the event that, any time after an annual meeting of Company stockholders in connection with which the information required by Investor was entitled to designate one or more Investor Designees, such Section 14(fInvestor Designees were elected as directors and such Investor Designees are still serving as directors at such time prior to the next annual meeting of Company stockholders when the Investor shall beneficially own Company Voting Securities representing less than 5% of the Outstanding Voting Power, then, at the request of the Company (provided Investor at the time of such request still beneficially owns Company Voting Securities representing less than 5% of the Outstanding Voting Power), the Investor shall use all reasonable efforts to cause all Investor Designees then in office to resign as directors.
(d) and Rule 14f-1 (which At the request of the Investor, the Company shall mail together with cause the Schedule 14D-9 if it receives from Parent and Merger Sub Investor Designees then required to be included in the information below on a basis timely to permit such mailing) as is necessary to fulfill slate of nominees recommended by the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees Board of Directors for the election to the Company's Board of Directors to be elected to serve on the Board of Directors of each Subsidiary.
(e) So long as the Investor beneficially owns Company Voting Securities representing 5% or more of the Outstanding Voting Power, the Company shall be subject effect all action necessary to compliance with Section 14(fappoint one Investor Designee to the Executive Committee of the Board of Directors (or other committee or group performing similar functions) (the "Executive Committee") of the Exchange Act Company and Rule 14f-1 promulgated thereunder. Parent each Subsidiary having such a committee or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have group on which an Investor Designee serves as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwisedirector.
(cf) Following If after the election or appointment of Parent's designees pursuant to Section 2.3(a)Closing, the approval by affirmative vote or written consent Company takes corporate action to classify the Board of all Directors of the Independent Directors then in office (or, if there shall be only one Independent Director then in officeCompany, the Independent DirectorInvestor Designees (if the Investor is then entitled to designate two directors) shall be required designated to authorize serve on different classes.
(and such authorization shall constitute g) So long as the authorization Investor is entitled to designate at least one member of the Board of Directors of the Company's , during any period that the requisite number of Investor Designees are not members of the Board of Directors, the Company shall cause one person (to be designated by the Investor in its sole discretion) to be permitted to attend all meetings of the Board of Directors of the Company and no other action on all meetings of the part Executive Committee of the Company, including any . The Company shall take all action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted necessary to authorize) ensure that (i) any amendment or termination the Investor is notified of this Agreement all meetings of the Board of Directors in accordance with and at the times prescribed by the Company, notice provisions of the by-laws of the Company applicable to directors of the Company and (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any that the Investor is furnished with all information and materials furnished to directors of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of Company in connection with any other action by the Company which could adversely affect the interests meetings of the Stockholders (other than Parent Board of Directors or the Executive Committee at the time such information and Merger Sub) with respect materials are furnished to the transactions contemplated herebydirectors.
Appears in 2 contracts
Sources: Relationship Agreement (Zurich Insurance Co), Relationship Agreement (Provident National Assurance Co Separate Account B)
Directors. (a) Promptly upon the purchase by Parent or any of and payment for, and as long as Parent directly or indirectly owns, not less than a majority its subsidiaries of such number of shares of Company Common Stock which represents at least 51% of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis), and from time to the Offertime thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on number (but in no event more than one less than the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such total number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint will give Parent's designees to the Company's Board of Directors shall be , subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply Act, representation on the Board of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in writingthe number of directors pursuant to this Section 1.4) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding (such number being, the "Board Percentage"), and be solely responsible forthe Company shall, any information with respect upon request by Parent, promptly satisfy the Board Percentage by (i) increasing the size of the Board of Directors of the Company or (ii) using its best efforts to either secure the resignations of them and their nominees, officers, such number of directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of to enable Parent's designees under Section 2.3(a). The provisions to be elected to the Board of Section 2.3(a) are in addition to Directors of the Company and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of cause Parent's designees pursuant promptly to Section 2.3(a)be so elected, provided that no such action shall be taken which would result in there being, prior to the consummation of the Merger, less than two directors of the Company that are not affiliated with Parent. At the request of Parent, the approval by affirmative vote or written consent of all of the Independent Directors then in office (orCompany shall take, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of at the Company's Board of Directorsexpense, and no other all lawful action on necessary to effect any such election, including, without limitation, mailing to its stockholders the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise information required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.Section
Appears in 2 contracts
Sources: Merger Agreement (Triad Systems Corp), Merger Agreement (Cooperative Computing Inc /De/)
Directors. (a) Promptly upon the purchase of and Purchaser's payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries for Shares pursuant to the Offer, Parent and from time to time thereafter as the Purchaser acquires Shares, the Purchaser shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that of the percentage Company as is equal to the product of its designees the total number of directors on the Board shall equal of Directors of the Company (determined after giving effect to the directors designated by the Purchaser pursuant 4 9 to this sentence) multiplied by the percentage that the aggregate number of Shares beneficially owned by the Purchaser or its affiliates bears to the total number of Shares entitled to vote then outstanding shares of Company Common Stock owned of record by Parent on a fully diluted basis, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder and other applicable Law (including applicable fiduciary duties), upon request of Merger Subthe Purchaser, use its reasonable efforts promptly take all actions necessary to cause Parentthe Purchaser's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase promptly increasing the size of the Board of Directors of the Company or use seeking the resignations of one or more existing directors, or both; provided, however, that prior to the Effective Time (as defined in Section 2.02) the Board of Directors of the Company shall always have at least two (2) members who are neither officers, directors, shareholders or designees of the Purchaser or any of its reasonable efforts to obtain affiliates ("Purchaser Insiders"). If the resignation of such number of its current directors as who are not Purchaser Insiders is necessary to give effect reduced below two (2) for any reason prior to the foregoing provisionEffective Time, then the remaining director who is not a Purchaser Insider shall be entitled to designate a person to fill such vacancy who is not a Purchaser Insider and who shall be a director not deemed to be a Purchaser Insider for all purposes of this Agreement. At such time, the Company shall alsoshall, upon if requested by the request of ParentPurchaser, use its reasonable efforts to also cause the Persons persons designated by Parent the Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of the Company of each committee of the Company's Board of Directors. Notwithstanding Directors of the foregoingCompany; provided, until however, that prior to the Effective Time, Time each committee of the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who one (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, member who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this AgreementPurchaser Insider.
(b) The Company's obligation to appoint the Purchaser's designees to the Board of Directors of the Company shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder and other applicable Law (including applicable fiduciary duties). The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a)1.03, including mailing to stockholders the shareholders of the Company the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with to enable the appointment or election of any of ParentPurchaser's designees under Section 2.3(a). The provisions to be elected to the Board of Section 2.3(a) are in addition to Directors of the Company, and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law include in the Schedule 14D-9 such information with respect to the election of Company and its officers and directors or otherwiseas is required under such Section and Rule in order to fulfill its obligations under this Section 1.03. Parent will supply in writing any information with respect to itself and its officers, directors and affiliates required by such Section and Rule to the Company.
(c) Following From and after the election or appointment of Parentthe Purchaser's designees pursuant to this Section 2.3(a)1.03 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rightsrights hereunder, benefits or remedies under any other action taken by the Board of Directors of the Company in connection with this Agreement, or (iv) approval will require the concurrence of any other action by a majority of the directors of the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebythen in office who are not Purchaser Insiders.
Appears in 2 contracts
Sources: Merger Agreement (Effective Management Systems Inc), Merger Agreement (Ifs Ab)
Directors. (a) Promptly Subject to compliance with applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares pursuant to the OfferOffer representing at least such number of Shares as shall satisfy the Minimum Condition, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent or its affiliates bears to the total number of Common Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase seeking the size resignations of the Board of Directors one or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")more existing directors; provided, however, that prior to the Effective Time (x) notwithstanding as defined in Section 2.02), the foregoing, in no event Company Board shall the requirement to always have at least two Independent Directors result in Parent's members who are neither officers, directors or designees constituting less than a majority of the Company's Board Purchaser or any of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and its affiliates (y) if "Purchaser Insiders"). If the number of Independent Directors shall be directors who are not Purchaser Insiders is reduced below two for any reason whatsoever (or if immediately following Consummation of prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, director who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Purchaser Insider shall be entitled to designate any such Qualified Person or Persons a person to fill such vacancy, vacancy who is not a Purchaser Insider and such designated Qualified Person who shall be a director not deemed to be an Independent Director a Purchaser Insider for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company Company's obligations to appoint Parent's designees to the Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.03 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.03. Parent or Merger Sub shall will supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseCompany.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a)1.03 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rightsrights hereunder, benefits or remedies under this Agreement, or (iv) approval will require the concurrence of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.a
Appears in 2 contracts
Sources: Merger Agreement (Eaton Corp), Merger Agreement (Fusion Systems Corp)
Directors. (a) Promptly Effective upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of any Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board that equals the product of Directors such (x) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section), and (y) the percentage that the percentage of its designees on the Board shall equal the percentage of the outstanding shares number of Company Common Stock Shares beneficially owned of record by Parent and/or Merger Subsidiary (including Company Shares accepted for payment) bears to the total number of Company Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Company Board, and in furtherance thereof, to including increasing the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisiondirectors, and seeking and accepting resignations of incumbent directors. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts take all action necessary to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Company Board and (ii) each board of Directorsdirectors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board, in each case to the fullest extent permitted by Applicable Law. Notwithstanding the foregoing, until Parent and/or Merger Subsidiary acquires a majority of the Effective Timeoutstanding Company Shares on a fully diluted basis, the Company shall use its reasonable best efforts to ensure that all of the members of the Company Board and such committees and boards as of Directors the date hereof who are not employees of the Company shall have at least two directors who are directors remain members of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, committees and such persons shall be deemed to be Independent Directors for purposes of this Agreementboards.
(b) The Company’s obligations to appoint Parent’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange 1934 Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderthis Section. Parent or Merger Sub shall supply to the Company in writing, and be solely responsible for, writing any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)2.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors directors of the Company then in office who were not designated by Parent (or, the “Continuing Directors”) (or the approval of the sole Continuing Director if there shall be only one Independent Director then in office, the Independent Continuing Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement, including any decrease in or change of form of the Merger Consideration, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubSubsidiary, (iii) any waiver or exercise of compliance with any of the Company's rights, benefits agreements or remedies under this Agreement, or (iv) approval of any other action by conditions contained herein for the Company which could adversely affect the interests benefit of the Stockholders (other than Parent Company, and Merger Subany amendment or change to Section 8.03. Following the election or appointment of Parent’s designees pursuant to Section 2.03(a) and until the Effective Time, any actions with respect to the transactions contemplated herebyenforcement of this Agreement by the Company shall be effected only by the action of a majority of the Continuing Directors (or the approval of the sole Continuing Director if there shall be only one Continuing Director).
Appears in 2 contracts
Sources: Merger Agreement (Oracle Corp), Merger Agreement (Hyperion Solutions Corp)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis acquisition by Parent or any of its direct or indirect Subsidiaries Purchaser pursuant to the OfferOffer of such number of Shares which satisfies the Minimum Condition and from time to time thereafter, Parent shall be entitled to designate for appointment or election to a majority of the members of the Company's then existing Board of Directors, upon written notice subject to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage compliance with Section 14(f) of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesExchange Act. In furtherance thereof, the The Company shall, upon request of Merger Subby ▇▇▇▇▇▇, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use to the extent permitted by its reasonable efforts to obtain Certificate of Incorporation and/or secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts be elected to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company and shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in cause Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) so elected. The Company shall promptly take take, at its expense, all actions action necessary to effect any such election, including mailing to its stockholders the information required pursuant to by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order form and substance reasonably satisfactory to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)its counsel. The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent▇▇▇▇▇▇'s designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by Agreement, extension for the Company, (ii) any extension performance or waiver of time for performance the obligations or other acts of any obligation or action hereunder by Parent or Merger Sub, (iii) any Purchaser or waiver or exercise of any of the Company's rightsrights hereunder, benefits shall require the concurrence of a majority of the Company's directors (or remedies under this Agreementthe concurrence of the director, if there is only one remaining) then in office who are directors on the date hereof, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders are directors (other than directors designated by Parent and Merger Subin accordance with this Section 1.3) with respect designated by such persons to fill any vacancy (the transactions contemplated hereby."CONTINUING DIRECTORS"). 3
Appears in 2 contracts
Sources: Merger Agreement (Golden Gate Acquisitions Inc), Merger Agreement (MDL Information Systems Inc)
Directors. Each of the Members shall exercise its respective voting rights in the JV Company and shall take such other steps as are necessary to ensure the following:
(a) Promptly upon The Board of Directors shall consist of five (5) Directors.
(b) Of the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority members of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferBoard, Parent Bloom Energy shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of nominate and have elected three (3) Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent “Bloom Energy Directors"”) and SK shall be entitled to nominate and have elected two (2) Directors (the “SK Directors”). The term for each Director shall be three (3) years; provided, however, that (x) notwithstanding such term may be extended until the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority close of the Company's ordinary General Meeting concerning the last fiscal year that ended during the term of the applicable Director. Any vacancy created in the Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two filled by the Member that originally nominated the absent Director causing the vacancy. The term of office for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent newly nominated Director shall be entitled for the remainder of the term of the prior Director. If Bloom Energy or SK wishes to designate any such Qualified Person change its nominated Director(s), with or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remainwithout cause, the other directors Members shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder vote its respective voting Units in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together compliance with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely Member desiring to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(achange its nominated Director(s). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following At the election or appointment time of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent completion of any Transfer of all of the Independent Directors then Units held by a Member, unless for the Transfer to Affiliates pursuant to Section 8.1(a), such Member shall procure the resignation of each Director appointed by it.
(d) A Member may, at its sole discretion, remove at any time any Director nominated by such Member, in office (orwhich event such Member shall have the power to nominate a substitute Director; provided, that, if there shall be only one Independent the relevant Director then in officedoes not resign from his or her office at the request of the nominating Member, the Independent Members shall exercise their respective voting rights in the JV Company to adopt a resolution to dismiss the relevant Director from the position. Any Member removing a Director nominated by it shall fully indemnify and hold harmless the other Members (and its successors, permitted assigns, employees, directors and officers) and the JV Company from and against any and all losses suffered, sustained or incurred by or imposed upon any of them as a result of, relating to or arising out of or in connection with such removal.
(e) The remuneration, bonuses and severance pay of Directors (including the Representative Director) shall be required to authorize (and such authorization shall constitute the authorization determined by a resolution of the Company's Board of Directors, and no other action on the part General Meeting.
(f) Bloom Energy shall appoint one of the Company, including any action by any committee thereof or any other director Bloom Energy Directors as the chairperson of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyBoard.
Appears in 2 contracts
Sources: Joint Venture Agreement (SK Ecoplant Co., Ltd.), Joint Venture Agreement (SK Ecoplant Co., Ltd.)
Directors. (a) Promptly Effective upon the purchase acceptance for payment by Merger Subsidiary of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Subsidiary (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, or seeking and in furtherance thereofaccepting resignations of incumbent directors, or both; PROVIDED that, after the acceptance for payment and prior to the extent necessaryEffective Time (defined below in Section 2.1(b)), increase the size of the Company's Board of Directors shall always have one member who is neither a designee nor an affiliate of Parent or use its reasonable efforts to obtain Merger Subsidiary nor an employee of the resignation of such Company (an "Independent Director"). If the number of its current directors as Independent Directors is necessary to give effect reduced below one for any reason prior to the foregoing provisionEffective Time, the departing Independent Director shall be entitled to designate a person to fill such vacancy. No action proposed to be taken by the Company to amend or terminate this Agreement or waive any action by Parent or Merger Subsidiary shall be effective without the approval of the Independent Director. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (x) each committee of the Company's Board of Directors. Notwithstanding the foregoingBoard, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number each board of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who each subsidiary (1) are Qualified Persons (as defined belowbelow in Section 4.1(a)) and (2z) are willing to serve as Independent Directors), then the number each committee of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any each such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementboard.
(b) The Company's obligations to appoint designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act (defined below in Section 4.1(d)) and Rule 14f-l promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Computer Management Sciences Inc), Merger Agreement (Computer Associates International Inc)
Directors. (a) Promptly Effective upon the purchase of Acceptance Time and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant from time to the Offertime thereafter, Parent shall be entitled to designate for appointment or election designate, to serve on the Company's then existing Board ’s board of Directorsdirectors, upon written notice to the Company, such number of directors, rounded up to the next whole number, determined by multiplying: (i) the total number of directors on the Board Company’s board of Directors such that directors (giving effect to any increase in the percentage of its designees on the Board shall equal the percentage size of the outstanding Company’s board of directors effected pursuant to this Section 1.3(a)); by (ii) a fraction having a numerator equal to the aggregate number of shares of Company Common Stock then beneficially owned of record by Parent or Acquisition Sub (including all shares of Company Common Stock accepted for exchange pursuant to the Offer), and each having a denominator equal to the total number of its direct or indirect Subsidiariesshares of Company Common Stock then issued and outstanding; provided, however, that in all events the minimum number of the members of the Company’s board of directors shall be five (5) and Parent’s designees shall be of such number so as to constitute at least a majority of the members of the Company’s board of directors, including in the circumstance where the number of shares of Company Common Stock purchased in the Offer shall have been reduced to the Reduced Purchase Amount in the manner contemplated by Section 1.1(h)(ii). In furtherance thereofPromptly following a request from Parent, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board’s board of directors, including seeking and accepting resignations of incumbent directors and, if such resignations are not obtained, increasing the size of the Company’s board of directors; provided that the size of the Company’s board of directors may not exceed nine members, as provided in furtherance thereofthe Company’s Restated Bylaws. From and after the Acceptance Time, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such timerequested by Parent, the Company shall alsoalso use reasonable best efforts, upon as permitted by all applicable Legal Requirements (including the request rules of Parentthe NASDAQ Global Market), use its reasonable efforts to: (A) obtain and deliver to Parent the resignation of each individual who is an officer of the Company; and (B) cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (1) as is on the Company's Board of Directors of each committee of the Company's Board ’s board of Directorsdirectors and (2) the board of directors of each Subsidiary of the Company (and each committee thereof) that represents at least the same percentage as individuals designated by Parent represent on the board of directors of the Company. Notwithstanding the foregoingprovisions of this Section 1.3, until at all times prior to the Effective TimeTime (as defined in Section 2.3), the Board of Directors of the Company shall have at least two (2) of the members of the Company’s board of directors designated by the Company prior to the Acceptance Time shall be individuals who are were directors of the Company on the date of this Agreement and who are not officers independent directors for purposes of the Company continued listing requirements of Nasdaq (the "“Independent Directors"”); provided, however, that (x) notwithstanding if at any time prior to the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors Effective Time there shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors only one Independent Director serving as a director of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)for any reason, then the number Company’s board of Independent Directors required hereunder shall be onedirectors shall, unless subject to the following sentence, cause an individual selected by the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of be appointed to serve on the Company, Parent or any ’s board of their respective Subsidiaries directors (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person individual shall be deemed to be an Independent Director for all purposes of under this Agreement). The Company shall designate, or if no prior to the Acceptance Time, two alternate Independent Directors then remainthat the board of directors of the Company shall appoint in the event of death, disability or resignation of the other directors shall be required Independent Directors, each of whom shall, following such appointment to designate two Qualified Persons to fill such vacanciesthe Company’s board of directors, and such persons shall be deemed to be an Independent Directors for purposes Director of this Agreementthe Company.
(b) The In connection with the performance of its obligations to cause Parent’s designees to be elected or appointed to the Company’s board of directors, each of the Company and Parent shall use its reasonable best efforts to promptly take all actions required pursuant actions, and the Company shall cause to be included in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 require (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees subject to the Company's Board ’s receipt of Directors shall be subject the information with respect to compliance with Parent and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of this Section 2.3(a) 1.3 are in addition to to, and shall not limit limit, any rights right that Merger Acquisition Sub, Parent or any affiliate of their Affiliates Acquisition Sub or Parent may have (with respect to the election of directors or otherwise) under applicable Legal Requirements as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseStock.
(c) Following the election or appointment of Parent's ’s designees to the Company’s board of directors pursuant to Section 2.3(a1.3(a) and until the Effective Time, if the taking of any of the following actions would reasonably be expected to affect adversely the holders of shares of Company Common Stock (other than Parent or Acquisition Sub), each of the following actions may be effected only if there are on the Company’s board of directors one or more Independent Directors and such action is approved by a majority of such Independent Directors: (i) any action by the Company with respect to any amendment or waiver of any term or condition of this Agreement, the Mergers, or the articles of incorporation or bylaws of the Company; (ii) termination of this Agreement by the Company; (iii) extension by the Company of the time for the performance of any of the obligations or other acts of Parent or Acquisition Sub, or any waiver or assertion of any of the Company’s rights under this Agreement; or (iv) other consent or action by the Company with respect to the Offer, the Mergers or any of the other Contemplated Transactions. To the extent permitted under applicable Legal Requirements, until the Effective Time, (1) the approval of any of the foregoing actions by affirmative vote or written consent of all a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the valid authorization of the Company's Board ’s board of Directorsdirectors with respect to such action, and no other action on the part of the Company, including any action Company or by any committee thereof or any other director of the Company, shall, unless otherwise required by law, Company shall be required or permitted to authorizeauthorize such actions and (2) (i) in addition to any amendment or termination of this Agreement by requirements under the Company’s articles of incorporation and bylaws, (ii) any extension quorum of time the Company’s board of directors for performance the purposes of any obligation meeting thereof or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise transacting of business thereby with respect to the approval of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval foregoing actions shall be deemed to require the attendance of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyat least one Independent Director.
Appears in 2 contracts
Sources: Merger Agreement (Sonic Solutions/Ca/), Agreement and Plan of Merger and Reorganization (Rovi Corp)
Directors. (a) Promptly Effective upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority fulfillment of the issued Minimum Condition and outstanding upon the acceptance for payment of the shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferOffer and the delivery of funds to the depositary for the Offer to pay for such shares, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board Company’s board of Directors such directors that equals the percentage product of its designees (i) the total number of directors on the Board shall equal Company’s board of directors (giving effect to the percentage election of any additional directors pursuant to this Section) and (ii) a fraction whose numerator is the outstanding aggregate number of shares of Company Common Stock then beneficially owned of record by Parent and each Acquisition Co. (including shares of its direct or indirect Subsidiaries. In furtherance thereofCompany Common Stock accepted for payment pursuant to the Offer), and whose denominator is the total number of shares of Company Common Stock then outstanding (provided that, in no event shall Parent’s director designees constitute less than a majority of the entire board of directors of the Company), and the Company shall, upon request of Merger Sub, use its shall take all commercially reasonable efforts promptly actions necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board’s board of directors, including increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, to the extent requested by Parent, and subject to the applicable requirements of Nasdaq (including Stock Market Rule 5605(c)), the Company shall also, upon the request of Parent, will also use its reasonable best efforts (i) to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number) as is , on the Company's Board of Directors of each committee of the Company's Board ’s board of Directors. Notwithstanding directors, that represents the foregoing, until same percentage as the Effective Time, individuals designated by Parent represent on the Board board of Directors of the Company shall have at least two directors who are directors of the Company on and (ii) to cause individuals designated by Parent to constitute the date of this Agreement and who are not officers same percentage of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority members of the Company's Board board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons each Subsidiary (as defined in Section 3.1 below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementeach committee thereof.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's ’s obligations to appoint Parent's ’s designees to the Company's Board ’s board of Directors directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply the Company in writingpromptly take all actions, and be solely responsible for, any shall include in the Schedule 14D-9 such information with respect to either the Company and persons designated by Parent pursuant to Section 1.3(a), as Section 14(f) and Rule 14f-1 of them the Exchange Act require in order to fulfill its obligations under this Section, so long as Parent shall have furnished to the Company on a timely basis the information with respect to Parent and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with of the appointment or election of any of Parent's designees under Section 2.3(a)Exchange Act. The provisions of this Section 2.3(a) 1.3 are in addition to and shall not limit any rights that Merger Subwhich Acquisition Co., Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law applicable Law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)1.3(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office Individuals who were directors of the Company on the date hereof (or"Continuing Directors"), or a single Continuing Director if there shall be only one Independent Director then in officesuch Continuing Director, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board ’s board of Directors, directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company’s board of directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubAcquisition Co. requiring the consent of the Company, (iii) any waiver or exercise of compliance by the Company of any of the Company's rightsagreements or conditions contained herein for the benefit of the Company or its shareholders, benefits any required or remedies under this Agreement, permitted consent or (iv) approval action by the board of directors of the Company hereunder and any other action by of the Company hereunder, which could adversely affect in the interests case of any of the Stockholders foregoing adversely affects in any material respect the holders of shares of Company Common Stock (other than Parent and Merger Sub) with respect to the transactions contemplated herebyor Acquisition Co.).
Appears in 2 contracts
Sources: Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until Until the Effective Time, the Board approval of Directors a majority of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office who were not designated by Parent (or, the “Existing Directors”) (or the approval of the sole Existing Director if there shall only be only one Independent Director then in office, the Independent Existing Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement (including any decrease or change in the form of the Offer Price), (iii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, and (iiiiv) any waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company's rights; provided that if there shall be no Existing Directors as a result of such individuals’ deaths, benefits disabilities, resignations or remedies under this Agreementrefusals to serve, or then such actions may be effected by a majority vote of the Company Board. The Existing Directors will have the authority to retain counsel (ivwhich may include current counsel to the Company) approval and other advisors at the reasonable expense of the Company as determined appropriate by the Existing Directors for the purpose of fulfilling their obligations hereunder. Until the Effective Time, any other action by the Company which could adversely affect to enforce any obligation of Parent or Merger Sub under this Agreement shall be effected only by the interests action of a majority of the Stockholders Existing Directors (other than Parent and Merger Sub) with respect or the approval of the sole Existing Director if there shall only be one Existing Director); provided that if there shall be no Existing Directors as a result of such individuals’ deaths, disabilities, resignations or refusals to serve, then such actions may be effected by a majority vote of the transactions contemplated herebyCompany Board.
Appears in 2 contracts
Sources: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
Directors. (a) Promptly upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis Shares by Parent or any of its direct or indirect Subsidiaries Sub pursuant to the Offer, Parent Sub shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, directors on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage (i) Allied as will give Sub, subject to compliance with Section 14(f) of the outstanding shares Exchange Act, a majority of Company Common Stock owned of record by Parent such directors, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company Allied shall, upon request of Merger at such time, cause Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, by its existing Board of Directors and in furtherance thereof, to the extent necessary, increase the size (ii) each Subsidiary of Allied and each committee of the Board of Directors or use its reasonable efforts to obtain the resignation of Allied and each such Subsidiary as will give Sub a majority of such number of its current directors as is necessary to give effect to the foregoing provision. At or committee, and Allied shall, at such time, cause Sub's designees to be so elected. In the Company shall also, upon the request of Parent, use its reasonable efforts event that Sub's designees are elected to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of Allied, until the Company Effective Time such Board of Directors shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company Allied (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingprovided that, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)whatsoever, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify shall designate a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person vacancy who shall be deemed to be an Independent Director for purposes of this AgreementAgreement or, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons persons to fill such vacanciesvacancies who shall not be officers or Affiliates of Allied or any of its Subsidiaries, or officers or Affiliates of Nationwide or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and after such time as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Sub purchases Shares pursuant to the Offer, Parent Sub shall be entitled entitled, to the fullest extent permitted by law, to designate for appointment or election at its option up to the Company's then existing Board of Directors, upon written notice to the Company, such that number of directors, rounded up to the next nearest whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding , subject to compliance with Section 14(f) of the foregoingExchange Act, until as will make the Effective Timepercentage of the Company's directors designated by Sub equal to the percentage of the aggregate voting power of the shares of Company Common Stock held by Parent or any of its Subsidiaries; provided, however, that if that Sub's designees are elected to the Board of Directors of the Company Company, until the Effective Time such Board of Directors shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingand provided further that, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) such event, if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)whatsoever, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify shall designate a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person who shall be deemed to be an Independent Director for purposes of this AgreementAgreement or, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons persons to fill such vacanciesvacancies who shall not be officers or affiliates of the Company, or officers or affiliates of Parent or any of its Subsidiaries, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The . Following the election or appointment of Sub's designees pursuant to this Section 6.3 and prior to the Effective Time, any amendment, or waiver of any term or condition, of this Agreement or the Company Charter or the Amended and Restated By-Laws of the Company, any termination of this Agreement by the Company, any extension by the Company of the time for the performance of any of the obligations or other acts of Sub or waiver or assertion of any of the Company's rights hereunder, and any other consent or action by the Board of Directors of the Company with respect to this Agreement, will require the concurrence of a majority of the Independent Directors and no other action by the Company, including any action by any other director of the Company, shall be required for purposes of this Agreement. To the fullest extent permitted by applicable law, the Company shall promptly take all actions required pursuant action requested by Parent that is reasonably necessary to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a)effect any such election, including mailing to its stockholders the Information Statement containing the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger , and the Company agrees to make such mailing with the mailing of the Schedule 14D-9 (provided that Sub shall supply have provided to the Company on a timely basis all information required to be included in writing, and be solely responsible for, any information the Information Statement with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in Sub's designees). In connection with the appointment or election of any foregoing, the Company will promptly, at the option of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following fullest extent permitted by law, either increase the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization size of the Company's Board of Directors, and no other action on Directors and/or obtain the part resignation of the Company, including any action by any committee thereof such number of its current directors as is necessary to enable Sub's designees to be elected or any other director of the Company, shall, unless otherwise required by law, be required or permitted appointed to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval Board of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyDirectors as provided above.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Oratec Interventions Inc)
Directors. (a) Promptly Effective upon the purchase of acceptance for payment of, and payment by Purchaser in accordance with the Offer for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board as is equal to the product of Directors such that (i) the percentage total number of its designees directors on the Board shall equal (determined after giving effect to the directors elected pursuant to this sentence) multiplied by (ii) the percentage that the aggregate number of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent or its affiliates (including shares accepted for payment) bears to the total number of Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts shall promptly take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors"Purchaser Insiders") to be so appointed elected, including, if necessary, by increasing the number of directors or elected seeking the resignations of one or more existing directors; PROVIDED, HOWEVER, that prior to the Company's BoardEffective Time (as defined in Schedule 2.02), and in furtherance thereofthe Board shall always have at least two members who are neither officers, to the extent necessarydirectors, increase the size shareholders or designees of the Board of Directors Purchaser or use its reasonable efforts to obtain the resignation of such number any of its current directors as is necessary affiliates and the Company shall continue to give effect comply with The Nasdaq Stock Market requirements with respect to independent directors. During the foregoing provision. At such timeperiod in which Parent shall be entitled to designate members of the Board, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (A) each committee of the Company's Board and (B) each board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board directors (and committee thereof) of Directors each subsidiary of the Company shall have at least two Company. If the number of directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be Purchaser Insiders is reduced below two for any reason whatsoever prior to the Effective Time, the remaining directors who are not Purchaser Insiders (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, only one director who is not an officer or Affiliate of a Purchaser Insider, the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as remaining director who is not a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Purchaser Insider) shall be entitled to designate any such Qualified Person a person (or Persons persons) to fill such vacancyvacancy (or vacancies) who is not an officer, director, shareholder or designee of the Purchaser or any of its affiliates and such designated Qualified Person who shall be a director not deemed to be an Independent Director a Purchaser Insider for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company Company's obligations to appoint Parent's designees to the Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.03 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. 1.03; PROVIDED, HOWEVER, that Parent or Merger Sub shall will supply the Company in writing, and be solely responsible for, for any information with respect to either of them itself and their nominees, its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseCompany.
(c) Following From and after the election or appointment of Parent's designees pursuant to this Section 2.3(a)1.03 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for performance the performance, or waiver, of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rightsrights hereunder, benefits or remedies under this Agreement, or (iv) approval will require the concurrence of any other action by a majority of the directors of the Company which could adversely affect the interests then in office who are not Purchaser Insiders. The Board shall not delegate any matter set forth in this Section 1.03(c) to any committee of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyBoard.
Appears in 1 contract
Directors. (a) Promptly upon the purchase Consummation of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record or beneficially by Parent and each of its direct or indirect SubsidiariesSubsidiaries (the "PARENT DESIGNEES"). In furtherance thereofconnection with the foregoing, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly has taken all action reasonably necessary to cause Parent's designees permit the Parent Designees to (and any replacement designees in the event that any designee shall no longer i) be on the Board of Directors) to be so appointed or elected to the Company's BoardBoard of Directors promptly following Consummation of the Offer, and in furtherance thereofincluding without limitation, to the extent necessary, increase increasing the size of the Company's Board of Directors or use its reasonable efforts to obtain and obtaining the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to provision and (ii) constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (A) each committee of the Company's Board of Directors, (B) each board of directors (or similar body) of each Subsidiary of the Company and (C) each committee (or similar body) of each such board. Notwithstanding the foregoing, until the Effective Time, the Company's Board of Directors of the Company shall have at least two three directors who are directors of the Company on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the "Independent DirectorsINDEPENDENT DIRECTORS"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two three Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two three for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two three then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be onereduced to equal the number of then-serving Independent Directors, unless the remaining Independent Director is or Independent Directors are able to identify a personperson or persons, as the case may be, who is are not an officer officers or Affiliate Affiliates of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified PersonQUALIFIED 13 of 56 PERSON"), ) willing to serve as an Independent Director, in which case such remaining Independent Director or Independent Directors shall be entitled (but not required) to designate any such Qualified Person or Persons to fill such vacancyvacancies, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors Directors shall be required entitled (but not required) to designate two three Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) . The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub Purchaser the information below on a basis timely to permit such mailing) as is necessary to fulfill enable the Parent Designees to be elected to the Company's obligations under Section 2.3(a)Board of Directors. The Company's obligations to appoint Parent's designees the Parent Designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub Purchaser shall supply the Company in writing, and be solely responsible for, writing any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under this Section 2.3(a). The provisions of this Section 2.3(a) are in addition to and shall not limit any rights that Merger SubPurchaser, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law Law with respect to the election of directors or otherwise.
(cb) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all by a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, Purchaser or (iii) any waiver or exercise of any of the Company's rights, benefits or remedies rights under this Agreement, or (iv) . Any action that requires approval of any other action by the Company which could adversely affect the interests Independent Directors shall be deemed to be approved by a majority of the Stockholders (other than Parent Independent Directors if there is no Independent Director and Merger Sub) with respect to such action is approved by the transactions contemplated herebyCompany's Board of Directors.
Appears in 1 contract
Sources: Merger Agreement (Cemex Sa De Cv)
Directors. (a) Promptly Effective upon the purchase acceptance for payment by Merger Sub of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (the "Appointment Time"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 1.3) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Sub (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action reasonably necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer to be on the elected or appointed to Company's Board of Directors) to be so appointed , including, without limitation, increasing the number of directors, or elected seeking and accepting resignations of incumbent directors, or both; provided that, prior to the Company's BoardEffective Time (as defined below), and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors shall always have at least two members who were directors of each committee Company prior to consummation of the Company's Board Offer (each, a "Continuing Director"). If the number of Directors. Notwithstanding the foregoing, until Continuing Directors is reduced to less than two for any reason prior to the Effective Time, the Board of remaining and departing Continuing Directors of shall be entitled to designate a person to fill the Company shall have at least two directors who are directors of the Company on the date of vacancy. Notwithstanding anything in this Agreement and who are not officers of to the Company (the "Independent Directors"); providedcontrary, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in if Parent's designees constituting less than a majority of the are elected to Company's Board of Directors unless Parent shall have failed prior to designate a sufficient number the Effective Time, the affirmative vote of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two required for Company to (a) amend or terminate this Agreement or agree or consent to any reason whatsoever (amendment or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes termination of this Agreement, (b) waive any of Company's or if no Independent Directors then remainany Company stockholder's rights, benefits or remedies hereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (d) approve any other directors shall be required action by Company which is reasonably likely to designate two Qualified Persons adversely affect the interests of the stockholders of Company (other than Parent, Merger Sub and their affiliates (other than Company and its subsidiaries)), with respect to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of the transactions contemplated by this Agreement.
(b) The Company's obligations to appoint designees to its board of directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act 1.3 and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply the to Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Vignette Corp)
Directors. (a) Promptly In the Merger Agreement, the Company has agreed that, subject to compliance with applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, by the Purchaser for Shares purchased pursuant to the Offer representing not less than a majority of the issued and outstanding shares of Company Common Stock Shares on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis, and from time to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereoftime thereafter, the Company shallwill, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause a majority of the directors of the Company to consist of Parent's designees (and any replacement designees in designees, including by accepting the event that any designee shall no longer be on resignations of those incumbent directors designated by the Board of Directors) to be so appointed Company or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase increasing the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the 21 Company's Board of Directors of each committee of the and causing ▇▇▇▇▇▇'s designees to be elected. The Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, obligations to appoint ▇▇▇▇▇▇'s designees to the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a)thereunder, including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)applicable. The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent▇▇▇▇▇▇'s designees pursuant as described in this paragraph and prior to Section 2.3(a)the Effective Time, the approval by affirmative vote any amendment or written consent of all termination of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, Merger Agreement by the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of Company or the Company's Board of Directors, and no other action on any extension by the part Company or the Company's Board of Directors, of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rights, benefits rights under the Merger Agreement or remedies under this Agreement, or (iv) approval of any other action by the Company concerning the Merger Agreement or any of the transactions contemplated thereby, will require the concurrence of a majority of the directors of the Company then in office who were not designated by Parent. REPRESENTATIONS AND WARRANTIES. The Merger Agreement contains certain representations and warranties by the Company, including representations and warranties concerning: the organization and qualification of the Company and its subsidiaries; the capitalization of the Company; the authority of the Company relative to the execution and delivery of, and consummation of the transactions contemplated by, the Merger Agreement and approval by the Board of Directors of the Company regarding certain related matters; the absence of any violations of the corporate documents and certain instruments of the Company or its subsidiaries or of any statute, rule, regulation, order or decree, subject to certain exceptions; the accuracy of reports and documents filed by the Company with the Commission since January 1, 1994 and certain financial statements of the Company; the absence since November 30, 1996 (except as amended or supplemented in filings prior to the date of the Merger Agreement with the Commission) to the date of the Merger Agreement of any event or occurrence (including the incurrence or existence of any liability) which, individually or in the aggregate, would have a Company Material Adverse Effect (as defined in the Merger Agreement); the absence of litigation which could adversely affect have a Company Material Adverse Effect; compliance by the interests Company with applicable laws, regulations, and similar matters; payment by the Company of taxes; compliance with certain laws relating to employee benefit plans; the possession of right, title and interest by the Company and its subsidiaries in certain intellectual property; the absence of ongoing infringement by the Company of intellectual property rights belonging to a third-party, indemnification by the Company for any such infringement or claims or demands against the Company for any such infringement; the absence of pending or threatened challenges, or grounds for a challenge, to the rights of the Stockholders (other than Parent Company to use certain trade secrets or proprietary or confidential information; the absence of any material defect in the programming and Merger Sub) with respect operation of the Company's software; the absence of material rights of third parties to use the Company's software; the taking by the Board of Directors of the Company of all appropriate and necessary action such that the provisions of Section 203 of the DGCL will not apply to the transactions contemplated hereby.by the Merger Agreement; and incurrence of broker's and similar fees. The Merger Agreement also contains certain representations and warranties by Parent and the Purchaser, including that Parent or the Purchaser has and will have at the time of acceptance for payment and purchase of Shares under the Offer and at the Effective Time the funds necessary to consummate the Offer and the Merger and the transactions contemplated thereby and to pay related fees and expenses. CONDITIONS TO THE MERGER. Under the Merger Agreement, the respective obligations of each party to effect the Merger are subject to the fulfillment of each of the following conditions: (i) the Purchaser shall have accepted for payment and paid for Shares pursuant to the Offer in accordance with the terms thereof; (ii) the vote of the stockholders of the Company necessary to consummate the transactions contemplated by the Merger Agreement shall have been obtained, if required by applicable law; and (iii) no statute, rule, regulation, judgment, writ, decree, order or injunction shall have been promulgated, enacted, entered or enforced, and no other action shall have been taken, by any domestic, foreign or supranational government or governmental, administrative or regulatory authority or agency of competent jurisdiction or by any court or tribunal of competent jurisdiction, domestic, foreign or supranational, that in any of the foregoing cases has the effect of making illegal or directly or indirectly restraining, prohibiting or restricting the consummation of the Merger. 22
Appears in 1 contract
Directors. (a) Promptly upon after (i) the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for any Shares by Parent Purchaser or any of its direct or indirect Subsidiaries affiliates pursuant to the OfferOffer as a result of which Purchaser and its affiliates own beneficially at least a majority of then outstanding Shares and (ii) compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, whichever shall occur later, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors as is equal to the product of the total number of directors on such Board (giving effect to the increase in the size of such Board pursuant to this Section 1.4) multiplied by the percentage that the percentage number of its designees on Shares beneficially owned by Purchaser (including Shares so accepted for payment) bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the Company shall, upon request of Merger SubParent and compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, use its reasonable best efforts promptly either to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the its Board of Directors or use its reasonable efforts to obtain secure the resignation resignations of such number of its current directors incumbent directors, or both, as is necessary to give effect enable such designees of Parent to be so elected or appointed to the foregoing provisionCompany's Board of Directors, and the Company shall take all actions available to the Company to cause such designees of Parent to be so elected or appointed. At such time, the Company shall alsoshall, upon the request of if requested by Parent, use its reasonable efforts also take all action necessary to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board (ii) each board of Directors directors (or similar body) of each Subsidiary of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (yiii) if the number of Independent Directors shall be reduced below two for any reason whatsoever each committee (or if immediately following Consummation similar body) of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any each such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementboard.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a1.4(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which or, at Parent's request, furnishing such information to Parent for inclusion in the Company shall mail together Offer Documents initially filed with the Schedule 14D-9 if it receives from Parent SEC and Merger Sub distributed to the information below on a basis timely to permit such mailingstockholders of the Company) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint enable Parent's designees to be elected to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub shall Purchaser will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.Section
Appears in 1 contract
Sources: Tender Offer Statement
Directors. (a) Promptly Subject to compliance with applicable Law, effective upon the purchase of and acceptance for payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent and each its Affiliates bears to the total number of its direct or indirect Subsidiaries. In furtherance thereofCommon Shares then outstanding, and the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase by increasing the size of the Company Board of Directors or use its reasonable efforts to obtain (including by amending the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors Bylaws of the Company shall have at least two directors who are directors if necessary) and/or obtaining the resignations of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")one or more existing directors; provided, however, that (x) Parent shall be entitled to designate at least a majority of the directors on the Company Board as long as Parent and its Affiliates beneficially own a majority of the Common Shares of the Company; provided further, and notwithstanding the foregoing, in no event that prior to the Effective Time, the Company Board shall the requirement to always have at least two Independent Directors result in Parent's designees constituting less than a majority members who were members of the Company's Company Board as of Directors unless Parent shall have failed immediately prior to designate payment by the Purchaser for Company Shares pursuant to the Offer and who are reasonably acceptable to Purchaser (it being acknowledged by the Purchaser that each of Messrs. ▇▇▇▇▇▇▇ and ▇▇▇▇ are acceptable to the Purchaser) (each such member a sufficient number of Persons to constitute at least a majority and (y) if “Company Director” and, collectively, “Company Directors”). If the number of Independent directors who are Company Directors shall be is reduced below two for any reason whatsoever (or if immediately following Consummation of prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, director who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Company Director shall be entitled to designate a Person to the Company Board who is not an officer, director, employee or designee of the Purchaser or any such Qualified Person or Persons to fill such vacancy, of its Affiliates and such designated Qualified Person who shall be deemed to be an Independent considered a Company Director for purposes of this Agreement, or if no Independent Directors then remain. At each such time Parent is entitled to designate directors on the Company Board, the other Company will, subject to any limitations imposed by applicable Law, also cause (i) each committee of the Company Board, (ii) the board of directors shall be required of each of the Company Subsidiaries and (iii) each committee of such board of directors of each of the Company Subsidiaries to designate two Qualified Persons to fill include persons designated by Parent constituting at least the same percentage of each such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementcommittee or board as Parent’s designees constitute on the Company Board.
(b) The Company’s obligations to cause the election or appointment of Parent’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.3 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a)1.3. The Company's obligations to appoint Parent's designees Parent will supply to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, its officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseRule.
(c) Following the election or appointment of Parent's ’s designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Subthe Purchaser, (iii) or any waiver or exercise of any of the Company's rights’s rights hereunder, benefits or remedies under this Agreement, or (iv) approval will require the concurrence of any other action by a majority of the directors of the Company which could then in office who are Company Directors (or in the case where there are two or fewer directors who are Company Directors, the concurrence of one director who is a Company Director) if such amendment, termination, extension or waiver would be reasonably likely to adversely affect the interests minority shareholders of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyCompany.
Appears in 1 contract
Sources: Merger Agreement (Infocus Corp)
Directors. (a) Promptly upon the purchase of and acceptance for payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries subsidiaries of Shares pursuant to the Offer, Parent shall be entitled entitled, subject to compliance with Section 14(f) of the Exchange Act, to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next greatest whole number, on the Company Board as will give Parent representation on the Company Board equal to that number of Directors such directors which equals the product of the total number of directors on the Company Board (giving effect to the directors appointed or elected pursuant to this sentence and including current directors serving as officers of the Company) multiplied by the percentage that the percentage aggregate number of Shares beneficially owned by Parent, Purchaser or any of their affiliates (including for purposes of this Section 1.03, such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by the Company or any of its designees on affiliates, which would not include Parent, Purchaser or any of their respective affiliates) bears to the Board shall equal the percentage number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofShares then outstanding; provided, the Company shallhowever, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees that in the event that any designee shall no longer be on the Board of Directors) to be so Parent's designees are appointed or elected to the Company's Company Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of Time (as defined in Section 2.02) the Company Board shall have at least two directors who are directors of the Company on the date of this Agreement and who are not executive officers of the Company (the "Independent Directors"); provided. At such times, howeverthe Company will use its best efforts to cause (i) each committee of the Company Board, that (xii) notwithstanding if requested by Parent, the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority board of directors of each of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority subsidiaries and (yiii) if requested by Parent, each committee of such subsidiaries' boards to include persons designated by Parent constituting the number same percentage of Independent Directors shall be reduced below two for any reason whatsoever (each such committee or if immediately following Consummation of the Offer there board as Parent's designees are not at least two then-existing directors of the Company who (1) are Qualified Persons (Board. The Company shall, upon request by Parent, promptly increase the size of the Company Board or exercise its best efforts to secure the resignations of such number of directors, or both, as defined belowis necessary to enable Parent's designees to be elected or appointed to the Company Board pursuant to this Section 1.03(a) and (2) are willing shall cause Parent's designees to serve as Independent Directors)be so elected or appointed. The Company Board shall approve, then and by approving the number execution and delivery of Independent Directors required hereunder shall be onethis Agreement by the Company, unless hereby does approve the remaining Independent Director is able to identify a person, who is not an officer or Affiliate taking of action by stockholders of the Company, Parent by written consent, to amend the By-Laws of the Company as may be necessary or any of their respective Subsidiaries (any such person being referred desirable to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes effect the provisions of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this AgreementSection 1.03.
(b) The Following the election or appointment of Parent's designees pursuant to this Section 1.03, and prior to the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (i) any amendment of this Agreement or the Restated Certificate of Incorporation or By-Laws of the Company, (ii) any termination of this Agreement by the Company, (iii) any consent by the Company to any extension of the time for performance of any of the obligations or other acts of Parent or Purchaser or (iv) any waiver by the Company of compliance with any of the covenants or conditions contained in this Agreement for the benefit of the Company or any other rights of the Company under this Agreement. Any person who is a director on the date of this Agreement, but who, in order to carry out the provisions of this Section 1.03, is not a director at the Effective Time, shall be entitled to receive all payments (other than attendance fees) at the time such director resigns as he or she otherwise would have been entitled to receive under policies or programs in effect on the date hereof if he or she had been a director as of the Effective Time.
(c) Subject to applicable law, the Company shall promptly take all actions required action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.to
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as for any Shares by Parent directly or indirectly owns, not less than any of its subsidiaries which represents at least a majority of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offerbasis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal Purchaser, Parent and any of their affiliates bears to the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding. In furtherance thereof, the The Company shall, upon request of Merger Subthe Purchaser, use its reasonable best efforts promptly either to cause increase the size of its Board of Directors or, at the Company's election, secure the resignations of such number of its incumbent directors as is necessary to enable Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, shall cause Parent's designees to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionbe so elected. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary (as defined in Section 3.1) of the Company and (iii) each committee (or similar body) of each such board, in each case only to the extent permitted by applicable law or the rules of any stock exchange on which the Company Common Stock is listed. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 1.5 hereof), the Company shall use all reasonable efforts to retain as a member of its Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")hereof; provided, howeverthat subsequent to the purchase of and payment for Shares pursuant to the Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's entire Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply promptly
(b) From and after the Company in writingtime, and be solely responsible forif any, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of that Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as constitute a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization majority of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger Subthe Purchaser hereunder, (iii) any waiver of any condition or exercise of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect hereunder may be effected only by the interests action of a majority of the Stockholders (other than Parent and Merger Sub) with respect directors of the Company then in office who were directors of the Company on the date hereof, which action shall be deemed to constitute the transactions contemplated herebyaction of the full Board of Directors; provided, that if there shall be no such directors, such actions may be effected by majority vote of the entire Board of Directors of the Company.
Appears in 1 contract
Directors. (a) Promptly upon following the purchase acceptance for payment by Purchaser of Shares pursuant to and payment forin accordance with the Offer (the "Acceptance Time"), and as for so long as Parent directly or indirectly owns, beneficially owns not less than a majority of the then issued and outstanding shares Class A Shares, the Company shall reduce the total number of directors on the Company Common Stock on a fully diluted basis by Parent or any Board of its direct or indirect Subsidiaries pursuant Directors to the Offer, Parent five and Purchaser shall be entitled to designate for appointment or election to three directors on the Company's then existing Company Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the The Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons such persons designated by Parent Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors a majority of each committee of the Company's Company Board of Directors (other than any committee comprised solely of Continuing Directors established to take action under this Agreement, which shall be permitted to meet without the presence of other directors solely for purposes of considering and, if necessary, taking action referred to in Section 1.3(c) below). At the next regular meeting of the Company Board of Directors after the date of this Agreement, which is scheduled for Thursday, September 8, 2011 and which will not be adjourned to a date later than the Business Day prior to the initial expiration date of the Offer, the Company will amend the By-laws of the Company and take such other action as is necessary or appropriate to permit representatives of Parent and Purchaser to serve as directors on the Company Board of Directors and each committee thereof from and after the Acceptance Time and for no other Person to be required to be elected or designated to the Company Board of Directors or any committee thereof other than the Continuing Directors. Notwithstanding Solely for the foregoingpurposes of this Section 1.3, until any and all members of the Company Board of Directors immediately prior to such appointments by Parent who remain on the Company Board after such appointment by Parent shall be referred to as “Continuing Directors”; which Continuing Directors are hereby and shall be deemed to be constituted as a committee of the Company Board of Directors for purposes of the actions to be taken thereby pursuant to Section 1.3(c). Except with respect to the Continuing Directors, the Company will cause the resignations of each director on the Company Board of Directors (and each committee thereof), which resignations are each contingent solely upon the occurrence of the Acceptance Time and the Company’s acceptance of such resignation. Upon the consummation of the Offer, the Company shall accept such resignations. Prior to the Effective Time, the Company Board of Directors of the Company shall have at least two Continuing Directors. If the number of directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Continuing Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be is reduced below two for any reason whatsoever (or if immediately following Consummation of prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Continuing Director shall be entitled to designate any such Qualified Person or Persons an individual to fill such vacancyvacancy who is not a current or former officer, director, employee or consultant of Parent or any of its Subsidiaries (a "Parent Insider") and such designated Qualified Person who shall be deemed to be an Independent a Continuing Director for all purposes of this Agreement, or if no Independent and the Company shall cause such designee to be appointed to the Company Board of Directors. If, notwithstanding compliance with the foregoing provisions, the number of Continuing Directors is reduced to zero, then remain, the other directors on the Company Board of Directors shall be required designate and appoint to designate the Company Board of Directors two Qualified Persons to fill such vacancies, and such persons individuals who are not Parent Insiders who shall be deemed to be Independent Continuing Directors for all purposes of this Agreement.
(b) The Company’s obligations to appoint designees of Purchaser to the Company Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. The Company, at its expense, shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a)1.3, including mailing to stockholders the Company Stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing14D-9, as contemplated by Section 1.2(b)) as is necessary to fulfill the Company's ’s obligations under Section 2.3(a1.3(a). The Company's obligations to appoint Parent's designees ; provided, that Parent and Purchaser shall have timely supplied to the Company's Board of Directors Company in writing, and shall be subject solely responsible for, any information with respect to compliance with Parent, Purchaser and their designees, officers, directors and affiliates to the extent required by such Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger SubParent, Parent Purchaser or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law Law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's Purchaser’s designees pursuant to Section 2.3(a)1.3(a) and prior to the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director or two Continuing Directors then in office, the Independent Directorall of such Continuing Directors then in office) shall be required to authorize (and such authorization shall (A) not be effective unless there is in office at least one (1) Continuing Director and (B) constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by lawLaw, be required or permitted to authorize) (i) any amendment amendment, modification or termination of this Agreement Agreement, or agreement or consent to any amendment, modification or termination of this Agreement, by the Company, (ii) any extension of time for performance performance, or waiver, of any obligation or action hereunder by Parent or Merger SubPurchaser, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies ’s rights under this AgreementAgreement if such action would adversely affect the interests of the stockholders of the Company (other than Parent or any of its affiliates), (iv) any waiver of any condition to the Company’s obligations hereunder, (v) any material amendment or other modification to the Company’s Certificate of Incorporation or By-laws in a manner that would reasonably be expected to adversely affect the interests of the Company Stockholders (other than Parent or any of its affiliates), or (ivvi) approval the taking of any other action by the Company which could in connection with this Agreement or the Transactions, other than the Company’s performance of its obligations under this Agreement (including the consummation of the Merger), that would reasonably be expected to adversely affect the interests of the Stockholders stockholders of the Company (other than Parent and Merger Sub) with respect or any of its affiliates). The Continuing Directors shall have the authority to retain such counsel (which may include current counsel to the transactions contemplated herebyCompany) and other advisors at the expense of the Company as determined by the Continuing Directors and shall have the authority to institute any action on behalf of the Company to enforce performance of this Agreement or any of the Company’s rights hereunder, in each case to the extent reasonably appropriate to the exercise and discharge of their fiduciary and other duties.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and Effective as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferAcceptance Date, Parent shall be entitled to designate for appointment or election to serve on the Company's then existing Board board of Directors, upon written notice to directors the Company, such number of directors, rounded up to the next whole number, determined by multiplying (i) the total number of directors on the Board Company's board of Directors such that directors (giving effect to the percentage election of its designees on any additional directors pursuant to this Section) by (ii) a fraction having a numerator equal to the Board shall equal the percentage aggregate number of the outstanding shares of Company Common Capital Stock then beneficially owned of record by Parent or Acquisition Sub (including all shares of Company Capital Stock accepted for exchange pursuant to the Offer) and each having a denominator equal to the total number of its direct shares of Company Capital Stock then issued and outstanding. At Parent's request on or indirect Subsidiaries. In furtherance thereofafter the Acceptance Date, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees shall take all actions (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereofincluding, to the extent necessary, increase obtaining resignations of incumbent directors and increasing the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is authorized directors) necessary to give effect cause Parent's designees to be elected or appointed to the foregoing provisionCompany's board of directors. At such timeIn connection with the designation by Parent of individuals to serve on the Company's board of directors, the Company shall also(A) obtain and deliver to Parent the resignation of each officer of the Company and (B) with respect to each committee of the Company's board of directors, upon the request of Parent, use its reasonable efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members thereof, rounded up to the next whole number) , that represents at least the same percentage as is individuals designated by Parent represent on the Company's Board board of Directors directors. Notwithstanding the provisions of each committee this Section 1.3, the Company shall use its commercially reasonable efforts to ensure that, at all times prior to the Effective Time (as defined in Section 2.3), at least two of the members of the Company's Board board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors are individuals who are were directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Continuing Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have if at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees time prior to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if Effective Time there shall be only one Independent Continuing Director serving as a director of the Company for any reason, then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement directors shall cause an individual selected by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of remaining Continuing Director to be designated to serve on the Company's rights, benefits or remedies under this Agreement, or board of directors (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.such
Appears in 1 contract
Sources: Merger Agreement (Exegenics Inc)
Directors. (a) Promptly Effective upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding ------------- --------- any shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 2.03) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock beneficially owned of record by Parent and/or Merger Sub (including shares of Company Common Stock accepted for payment) bears to the total number of shares of Company Common Stock outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) each committee of the Board and (ii) each board of directors of each Subsidiary of the Company identified by Parent (and each committee thereof) that represents the same percentage as is such individuals represent on the Board of Directors of the Company, in each case only to the extent permitted by applicable law. Notwithstanding the provisions of this Section 2.03, the parties hereto shall use their respective best efforts to ensure that at least two of the members of the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoingshall, until at all times prior to the Effective Time, the Board of Directors be directors of the Company shall have at least two directors who are were directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent Continuing Directors"); providedprovided that if there shall be in office -------------------- -------- fewer than two Continuing Directors for any reason, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate cause a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless person designated by the remaining Independent Continuing Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person vacancy who shall be deemed to be an Independent a Continuing Director for all purposes of this Agreement, or if no Independent Continuing Directors then remain, the other directors of the Company then in office shall be required to designate two Qualified Persons persons to fill such vacanciesvacancies who will not be officers or employees or Affiliates of the Company, Parent or Merger Sub or any of their respective Subsidiaries and such persons shall be deemed to be Independent Continuing Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in writingorder to fulfill its obligations under this Section, so long as Parent shall have provided to the Company on a timely basis in writing and be solely responsible for, for any information with respect to either of them itself, Merger Sub and their respective nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)2.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company's Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company's rights, benefits any consent or remedies under this Agreement, or (iv) approval action by the Board of Directors of the Company hereunder and any other action by of the Company hereunder which could adversely affect affects the interests holders of the Stockholders shares of Company Common Stock (other than Parent or Purchaser).
(d) Parent shall take such action as shall be necessary so that, at the Effective Time, the number of directors comprising each class of directors of the Board of Directors of Parent shall be increased from four to five, and Merger Subthree individuals from among the present directors of the Company (the "Designated ---------- Directors") with respect who shall be agreed upon by Parent and the Company shall be --------- appointed to the transactions contemplated herebyBoard of Directors of Parent to fill the vacancies created by such newly created directorships having terms expiring at the Company's annual meetings of shareholders to be held in 2001, 2002 and 2003. The Company hereby agrees to provide to Parent as soon as practicable any information in respect of the Designated Directors as Parent shall reasonably request.
Appears in 1 contract
Sources: Merger Agreement (Fort James Corp)
Directors. (a) Promptly upon the purchase Consummation of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record or beneficially by Parent and each of its direct or indirect SubsidiariesSubsidiaries (the "PARENT DESIGNEES"). In furtherance thereofconnection with the foregoing, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly has taken all action reasonably necessary to cause Parent's designees permit the Parent Designees to (and any replacement designees in the event that any designee shall no longer i) be on the Board of Directors) to be so appointed or elected to the Company's BoardBoard of Directors promptly following Consummation of the Offer, and in furtherance thereofincluding without limitation, to the extent necessary, increase increasing the size of the Company's Board of Directors or use its reasonable efforts to obtain and obtaining the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to provision and (ii) constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (A) each committee of the Company's Board of Directors, (B) each board of directors (or similar body) of each Subsidiary of the Company and (C) each committee (or similar body) of each such board. Notwithstanding the foregoing, until the Effective Time, the Company's Board of Directors of the Company shall have at least two three directors who are directors of the Company on the date of this Agreement and who are not officers of the Company or any of its Subsidiaries (the "Independent DirectorsINDEPENDENT DIRECTORS"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two three Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two three for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two three then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be onereduced to equal the number of then-serving Independent Directors, unless the remaining Independent Director is or Independent Directors are able to identify a personperson or persons, as the case may be, who is are not an officer officers or Affiliate Affiliates of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified PersonQUALIFIED PERSON"), ) willing to serve as an Independent Director, in which case such remaining Independent Director or Independent Directors shall be entitled (but not required) to designate any such Qualified Person or Persons to fill such vacancyvacancies, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors Directors shall be required entitled (but not required) to designate two three Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) . The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub Purchaser the information below on a basis timely to permit such mailing) as is necessary to fulfill enable the Parent Designees to be elected to the Company's obligations under Section 2.3(a)Board of Directors. The Company's obligations to appoint Parent's designees the Parent Designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub Purchaser shall supply the Company in writing, and be solely responsible for, writing any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under this Section 2.3(a). The provisions of this Section 2.3(a) are in addition to and shall not limit any rights that Merger SubPurchaser, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law Law with respect to the election of directors or otherwise.
(cb) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all by a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, Purchaser or (iii) any waiver or exercise of any of the Company's rights, benefits or remedies rights under this Agreement, or (iv) . Any action that requires approval of any other action by the Company which could adversely affect the interests Independent Directors shall be deemed to be approved by a majority of the Stockholders (other than Parent Independent Directors if there is no Independent Director and Merger Sub) with respect to such action is approved by the transactions contemplated herebyCompany's Board of Directors.
Appears in 1 contract
Sources: Merger Agreement (Cemex Sa De Cv)
Directors. (a) Promptly Effective upon the purchase of and acceptance for payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferOffer of a number of Shares that satisfies the Minimum Condition, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Board other than the Executive Committee or any committee of Directors. Notwithstanding the foregoing, until Board established to take action under this Agreement and (ii) each board of directors of each Subsidiary of the Effective Time, Company (and each committee thereof) that represents the same percentage as such individuals represent on the Board of Directors of the Company. Notwithstanding the foregoing, the Company shall have use its reasonable best efforts to ensure that at least two directors who are directors three members of the Company on Board of Directors and such committees and boards as of the date of this Agreement and hereof who are not officers employees of the Company (the "Independent DirectorsCONTINUING DIRECTORS"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority remain members of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) such committees and boards until the Effective Time, provided that, if the number of Independent Continuing Directors shall be is reduced below two for any reason whatsoever (or if immediately following Consummation of three prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Directors shall be entitled to designate any such Qualified Person or Persons to fill such vacancythe vacancy a person who is not an officer, director or designee of Parent or any of its Affiliates and such designated Qualified Person who shall be deemed to be an Independent a Continuing Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)2.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors of the Company then in office (or, if there shall be only one Independent Director then in office, the Independent Director) who were not designated by Parent shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) Subsidiary and any waiver or exercise of compliance with any of the Company's rights, benefits agreements or remedies under this Agreement, or (iv) approval of any other action by conditions contained herein for the Company which could adversely affect the interests benefit of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyCompany.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase of and acceptance for payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferOffer of a number of Shares that satisfies the Minimum Condition, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Board other than the Executive Committee or any committee of Directors. Notwithstanding the foregoing, until Board established to take action under this Agreement and (ii) each board of directors of each Subsidiary of the Effective Time, Company (and each committee thereof) that represents the same percentage as such individuals represent on the Board of Directors of the Company. Notwithstanding the foregoing, the Company shall have use its reasonable best efforts to ensure that at least two directors who are directors three members of the Company on Board of Directors and such committees and boards as of the date of this Agreement and hereof who are not officers employees of the Company (the "Independent Continuing Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority remain members of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) such committees and boards until the Effective Time, provided that, if the number of Independent Continuing Directors shall be is reduced below two for any reason whatsoever (or if immediately following Consummation of three prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Directors shall be entitled to designate any such Qualified Person or Persons to fill such vacancythe vacancy a person who is not an officer, director or designee of Parent or any of its Affiliates and such designated Qualified Person who shall be deemed to be an Independent a Continuing Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange 1934 Act and Rule 14f-1 14f- 1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)2.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors of the Company then in office (or, if there shall be only one Independent Director then in office, the Independent Director) who were not designated by Parent shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) Subsidiary and any waiver or exercise of compliance with any of the Company's rights, benefits agreements or remedies under this Agreement, or (iv) approval of any other action by conditions contained herein for the Company which could adversely affect the interests benefit of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyCompany.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Gibson Greetings Inc)
Directors. (a) Promptly upon The Company agrees to cause the purchase of 2006 Annual Meeting to occur no later than September 30, 2006. The Company shall (i) cause the Board and payment for, and as long as Parent directly or indirectly owns, not less than a majority all applicable committees of the issued Board to nominate and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to recommend that the Offer, Parent shall be entitled to designate Company’s stockholders vote for appointment or the election to the Company's then existing Board of Directorseach of the ▇▇▇▇▇▇▇ Nominees and the Other Nominees (collectively, upon written notice the “Company Nominees”) at the 2006 Annual Meeting and, subject to its fiduciary duties, at the Company2007 Annual Meeting, such number (ii) include this recommendation in its proxy materials, (iii) cause the proxy used to solicit authority to vote for the Company Nominees, (iv) use commercially reasonable efforts to solicit proxies in favor of directors, rounded up to the next whole number, on these nominees’ election and (v) cause the Board to take all necessary action so that effective as of the election of Directors such that at the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase 2006 Annual Meeting the size of the Board of Directors or use its reasonable efforts to obtain shall be fixed at nine members. The Nominating Committee has approved the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors nomination of the Company shall have at least two directors who are directors of Nominees in connection with the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement2006 Annual Meeting.
(b) The Company following actions shall promptly take all actions required pursuant to Section 14(f) of be taken by the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be following the 2006 and 2007 Annual Meetings, subject to compliance with Section 14(f) the fiduciary duties of the Exchange Act Board: (i) Razin to continue as the Chairman of the Board of Directors (the Board will not have a lead director or Co-Chairman), (ii) Ibrahim Fauzy, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (Chairman), ▇▇▇▇▇ ▇▇▇▇▇▇▇ and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ named to the Company in writingBoard’s Compensation Committee, (iii) ▇▇▇▇▇▇▇ (Chairman), ▇▇▇▇▇, ▇▇▇▇▇▇▇ Love and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ named to the Board’s Transaction Committee, and be solely responsible for(iv) ▇▇▇▇▇▇▇, any information with respect Razin (Chairman), Ibrahim Fauzy and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ named to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)Nominating Committee. The provisions Board of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect Directors will appoint to the election Audit Committee those Directors whom the Board determines to be most appropriate for service on that Committee, taking into account, among other things, the background and experience of directors or otherwise.the Directors and applicable regulatory requirements
(c) Following The Board shall adopt resolutions providing that in the election event of a deadlock or appointment of Parent's designees pursuant other failure or inability to Section 2.3(a)act, the approval by affirmative vote or written consent of all responsibilities of the Independent Compensation Committee will be escalated to the independent Directors then in office (orwithin the meaning of applicable Nasdaq rules) acting as a committee, if there shall be only one Independent Director then in office, and the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization responsibilities of the Company's Board of Directors, Transactions and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, Nominating Committees will be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect escalated to the transactions contemplated herebyBoard.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as For so long as Parent directly or indirectly owns, Wing On and its Associated Companies collectively hold not less than a majority 5% of the Company’s issued Shares, Wing On shall have the right, exercisable by notice in writing to require the appointment of one Director and outstanding shares by like notice to require the removal of such Director and the appointment of another person to act in place of such Director. As at the date of this Agreement, Wing On’s nominee to the Board is [•]. If at any time Wing On and its Associated Companies cease to collectively hold 5% of the Company’s issued Shares (except where Wing On and its Associated Companies cease to collectively hold 5% of the Company’s issued Shares as a result of the issuance by the Company Common Stock on of new Shares in breach of the terms of this Agreement), Wing On shall procure the immediate resignation of any person appointed as a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Director pursuant to the Offer, Parent this Clause 3A(a) and Wing On shall have no further right to appoint any person as a Director.
(d) All notices of appointment and removal required under Clause 3A shall be entitled given in writing to designate for appointment or election the other Shareholders and to the Company's then existing Board . Upon receipt of Directorssuch notice, upon the Shareholders and the Company shall, and the Shareholders shall procure their respective nominee Directors to, within seven days thereafter, take all such actions (within their respective powers) that are necessary under the Articles or the applicable law to effect the applicable appointment or removal.
(e) Each Director may, by giving written notice to the CompanyCompany and the other Directors, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees nominate any other person (and any replacement designees in the event that any designee shall no longer be on the Board of Directorsincluding another Director) to be so appointed or elected to his alternate Director (with the Company's Boardrights and responsibilities set out in the Articles) for such period of time as may be specified therein, and may in furtherance thereoflike manner at any time terminate such appointment in accordance with the Articles. If such alternate Director is a Director himself, to such alternate Director would, for the extent necessarypurposes of quorum and voting, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such timecount for himself and, in addition, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as person for whom he is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementalternate.
(bf) The Company For the avoidance of doubt, nothing in this Agreement shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations restrict Ctrip’s right to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwisealternate Directors.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Sale and Purchase Agreement (Ctrip Com International LTD)
Directors. (a) Promptly upon Upon the purchase pursuant to the Offer by Sub of and payment for, and as long as Parent directly or indirectly owns, not less than such number of shares of Company Common Stock which represents a majority of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis), and from time to the Offertime thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, number (but in no event more than one less than the total number of directors on the Board of Directors such that of the percentage Company) as will give Parent, subject to compliance with Section 14(f) of its designees the Exchange Act, representation on the Board shall of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to this Section 1.4) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding shares of Company Common Stock owned of record by Parent (such number being, the "Board Percentage"), and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Subby Parent and subject to applicable law, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on satisfy the Board of DirectorsPercentage by (i) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase increasing the size of the Board of Directors of the Company or use (ii) using its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts be elected to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company and shall have at least cause Parent's designees promptly to be so elected, provided that no such action shall be taken which would result in there being, prior to the consummation of the Merger, less than two directors who are directors of the Company on the date of this Agreement and who that are not officers affiliated with Parent. At the request of Parent, the Company (the "Independent Directors"); providedshall take, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed expense, all lawful action necessary to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (effect any such person being referred to herein as a "Qualified Person")election, willing to serve as an Independent Directorincluding, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancywithout limitation, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to its stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, unless such information has previously been provided to the Company's stockholders in the Schedule 14D-9. Parent or Merger Sub shall will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) of the Exchange Act and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwisethereunder.
(cb) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (1.4 and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect prior to the transactions contemplated hereby.Effective
Appears in 1 contract
Sources: Merger Agreement (Ero Inc)
Directors. (a) Promptly Effective upon the purchase acceptance for payment by Merger Subsidiary of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (the "Appointment Time"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Subsidiary (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, or seeking and in furtherance thereofaccepting resignations of incumbent directors, or both; provided that, prior to the extent necessaryEffective Time (defined below in Section 2.3), increase the size of the Company's Board of Directors or use its reasonable efforts shall always have at least two members who were directors of the Company prior to obtain consummation of the resignation of such Offer (each, a "Continuing Director"). If the number of its current directors as Continuing Directors is necessary reduced to give effect less than two for any reason prior to the foregoing provisionEffective Time, the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (x) each committee of the Company's Board Board, (y) each board of Directorsdirectors of each subsidiary (defined below in Section 4.1(a)) and (z) each committee of each such board. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of anything in this Agreement and who are not officers of to the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingcontrary, in no the event shall the requirement to have at least two Independent Directors result in that Parent's designees constituting less than a majority of are elected to the Company's Board of Directors unless Parent shall have failed prior to designate a sufficient number the Effective Time, the affirmative vote of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two required for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who to (1a) are Qualified Persons (as defined below) and (2) are willing amend or terminate this Agreement or agree or consent to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer any amendment or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes termination of this Agreement, (b) waive any of the Company's rights, benefits or if no Independent Directors then remainremedies hereunder, (c) extend the time for performance of Parent's and Merger Subsidiary's respective obligations hereunder, or (d) approve any other directors shall be required action by the Company which is reasonably likely to designate two Qualified Persons adversely affect the interests of the stockholders of the Company (other than Parent, Merger Subsidiary and their affiliates (other than the Company and its subsidiaries)), with respect to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of the transactions contemplated by this Agreement.
(b) The Company's obligations to appoint designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority for such number of the issued and outstanding shares of Company Common Stock on a fully diluted basis Shares by Parent or any of its direct or indirect Subsidiaries pursuant to Purchaser that satisfy the OfferMinimum Condition, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 1.3) multiplied by (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent and each and/or Purchaser (including Shares accepted for payment) bears to the total number of its direct or indirect SubsidiariesShares outstanding. In furtherance thereof, the The Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain Directors, including increasing the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionand seeking and accepting resignations of incumbent directors. At such time, to the extent requested by Parent, the Company shall also, upon the request of Parent, also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (x) each committee of the Board of Directors and (y) each Board of Directors of each subsidiary of the Company (and each committee thereof) that represents the same percentage as is such individuals represent on the Company's Board of Directors as permitted by the rules of each committee The Nasdaq Stock Market. Notwithstanding the provisions of this Section 1.3, the parties hereto shall use their respective best efforts to ensure that at least two (2) of the members of the Company's Board of Directors. Notwithstanding the foregoingDirectors shall, until at all times prior to the Effective Time, the Board of Directors be directors of the Company shall have at least two directors who are were directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent DirectorsCONTINUING DIRECTORS") (which, in the case of Parent, shall include the voting of all Shares held by it for the election of such persons as directors of the Company); providedprovided that if there are in office fewer than two Continuing Directors for any reason, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate cause a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless person designated by the remaining Independent Continuing Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person vacancy who shall be deemed to be an Independent a Continuing Director for all purposes of this Agreement, or if no Independent Continuing Directors then remain, the other directors of the Company then in office shall be required to designate two Qualified Persons (2) persons to fill such vacanciesvacancies who will not be officers or employees or affiliates of the Company, Parent or Purchaser or any of their respective subsidiaries and such persons shall be deemed to be Independent Continuing Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply the Company in writingpromptly take all actions, and be solely responsible for, any shall include in the Schedule 14D-9 such information with respect to either of them the Company and their nominees, its directors and officers, directors and Affiliates required by such as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section 1.3, so long as is necessary Parent has provided to the Company on a timely basis the information referred to in connection with the appointment or election of following sentence. Parent shall supply to the Company in writing and be solely responsible for any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law information with respect to the election of directors or otherwiseitself and its nominees, directors, officers and affiliates required by Section 14(f) and Rule 14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)1.3(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company's Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubPurchaser, (iii) any waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company, any consent or action by the Company's rights, benefits or remedies under this Agreement, or (iv) approval Board of Directors hereunder and any other action by of the Company hereunder which could adversely affect affects the interests holders of the Stockholders Shares (other than Parent and Merger Subor Purchaser) with respect to the transactions contemplated herebyor holders of Stock Options (as defined below).
Appears in 1 contract
Directors. (a) Promptly upon Upon the purchase pursuant to the Offer by Parent or any of and payment for, and as long as Parent directly or indirectly owns, not less than a majority its subsidiaries of such number of shares of Company Common Stock which represents at least 65% of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis), and from time to the Offertime thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, number (but in no event more than one less than the total number of directors on the Board of Directors such that of the percentage Company) as will give Parent, subject to compliance with Section 14(f) of its designees the Exchange Act, representation on the Board shall of Directors of the Company equal to the product of (x) the number of directors on the Board of Directors of the Company (giving effect to any increase in the number of directors pursuant to this Section 1.4) and (y) the percentage that such number of Shares so purchased bears to the aggregate number of Shares outstanding shares of Company Common Stock owned of record by Parent (such number being, the "Board Percentage"), and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Subby Parent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on satisfy the Board of DirectorsPercentage by (i) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase increasing the size of the Board of Directors of the Company or use (ii) using its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts be elected to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company and shall have at least cause Parent's designees promptly to be so elected, provided that no such action shall be taken which would result in there being, prior to the consummation of the Merger, less than two directors who are directors of the Company on the date of this Agreement and who that are not officers affiliated with Parent. At the request of Parent, the Company (the "Independent Directors"); providedshall take, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed expense, all lawful action necessary to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (effect any such person being referred to herein as a "Qualified Person")election, willing to serve as an Independent Directorincluding, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancywithout limitation, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to its stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, unless such information has previously been provided to the Company's stockholders in the Schedule 14D-9. Parent or Merger Sub shall will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) of the Exchange Act and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwisethereunder.
(cb) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a), 1.4 and prior to the approval by affirmative vote or written consent of all Effective Time of the Independent Directors then in office (orMerger, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by Agreement, extension for the performance or waiver of the obligations or other acts of Parent or Sub or waiver of the Company, 's rights thereunder shall require the concurrence of a majority of directors of the Company then in office who are Continuing Directors. The term "Continuing Director" shall mean (i) each member of the board of directors on the date hereof who voted to approve this Agreement and (ii) any extension of time for performance of successor to any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect Continuing Director that was recommended to the transactions contemplated hereby.succeed such
Appears in 1 contract
Sources: Merger Agreement (DR Pepper Bottling Company of Texas)
Directors. (a) Promptly Effective upon the purchase acceptance for --------- payment by Merger Sub of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (the "Appointment Time"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 1.3) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Sub (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action reasonably necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer to be on the elected or appointed to Company's Board of Directors) to be so appointed , including, without limitation, increasing the number of directors, or elected seeking and accepting resignations of incumbent directors, or both; provided that, prior to the Company's BoardEffective Time (as defined below), and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors shall always have at least two members who were directors of each committee Company prior to consummation of the Company's Board Offer (each, a "Continuing Director"). If the number of Directors. Notwithstanding the foregoing, until Continuing Directors is reduced to less than two for any reason prior to the Effective Time, the Board of remaining and departing Continuing Directors of shall be entitled to designate a person to fill the Company shall have at least two directors who are directors of the Company on the date of vacancy. Notwithstanding anything in this Agreement and who are not officers of to the Company (the "Independent Directors"); providedcontrary, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in if Parent's designees constituting less than a majority of the are elected to Company's Board of Directors unless Parent shall have failed prior to designate a sufficient number the Effective Time, the affirmative vote of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two required for Company to (a) amend or terminate this Agreement or agree or consent to any reason whatsoever (amendment or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes termination of this Agreement, (b) waive any of Company's or if no Independent Directors then remainany Company stockholder's rights, benefits or remedies hereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (d) approve any other directors shall be required action by Company which is reasonably likely to designate two Qualified Persons adversely affect the interests of the stockholders of Company (other than Parent, Merger Sub and their affiliates (other than Company and its subsidiaries)), with respect to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of the transactions contemplated by this Agreement.
(b) The Company's obligations to appoint designees to its board of directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act 1.3 and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply the to Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Ondisplay Inc)
Directors. Immediately prior to the Closing, Vista shall take such action as may be necessary as the then sole shareholder of Newco so as to cause the directors of Newco at the Effective Time to be as set forth below: C. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Midland representative to be named by Midland's Board of Directors prior to Closing Date Vista as set forth in this Section 2.5 shall have the right to initially nominate eight of the nine directors and Midland shall have the right to initially nominate one of the nine directors who shall serve as directors of Newco commencing as of the Effective Time. Each nominee for director of Newco identified as such above (aa "Newco Director Nominee") Promptly upon will hold office until the purchase 1999 annual meeting of and payment forNewco, and in all cases, until his or her respective successor is duly elected or appointed and qualified in the manner provided in the Certificate of Incorporation or Bylaws of Newco, or as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis otherwise provided by Parent or any of its direct or indirect Subsidiaries pursuant applicable law. If prior to the OfferEffective Time a Newco Director Nominee selected by Vista or Midland shall decline or be unable to serve as a director of Newco or whose nomination shall be withdrawn by Vista or Midland, Parent as applicable, then Vista or Midland, as appropriate, shall be entitled to designate nominate a replacement for appointment or election such Newco Director Nominee, who shall thereafter become a Newco Director Nominee, provided that such person shall be reasonably acceptable to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage each of the outstanding shares of Company Common Stock owned of record other parties to this Agreement and this Agreement shall be amended by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, parties to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionreflect such action. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are The directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors MM Surviving Corporation shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing same as the directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, Newco set forth in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this AgreementSection 2.5.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for Shares by Parent or any of its direct or indirect Subsidiaries pursuant to subsidiaries which represent at least a majority of the Offerthen outstanding shares of Company Common Stock, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by Sub, Parent and any of their Affiliates (including Shares so accepted for payment) bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding (on a fully diluted basis). In furtherance thereof, the The Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board, Company Board and in furtherance thereof, to secure the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation resignations of such number of its current incumbent directors as is necessary to give effect enable Parent's designees to the foregoing provisionbe so elected or appointed. At such timetimes, the Company shall also, upon the request of Parent, use its reasonable efforts to will cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next nearest whole number) as is such individuals represent on the Company's Company Board of Directors of (A) each committee of the Company's Company Board and (B) each board of Directorsdirectors (and committee thereof) of each Company Subsidiary (as defined in Section 3.1 hereof) in each case to the extent permitted by Applicable Law or the rules or applicable listing agreement of any stock exchange or over-the-counter market on which the Company Common Stock is listed or traded. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 1.5 hereof), the Board of Directors Company shall use its best efforts to retain as members of the Company shall have Board at least two directors who that are directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent Directors"); provided, howeverthat subsequent to the purchase of and payment for Shares pursuant to the Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the entire Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)Board. The Company's obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.promptly take all
Appears in 1 contract
Directors. Section 1. Until changed in accordance with the provisions of this section, there shall be two (a2) Promptly upon directors of the purchase corporation. The number of and payment fordirectors may be fixed (i) at any meeting of stockholders called for the purpose of electing directors, and as long as Parent directly or indirectly ownsat which a quorum is present, not less than by the affirmative vote of the holders of a majority of the issued stock having voting power present in person or by proxy at the meeting, or (ii) at any meeting of the directors at which a quorum is present, by the affirmative vote of a majority of the directors present. No reduction in the number of directors shall of itself have the effect of shortening the term of any incumbent director. Each director elected shall hold office until his or her successor is elected and outstanding shares qualified.
Section 2. Vacancies and newly created directorships resulting from any increase in the authorized number of Company Common Stock on directors may be filled by a fully diluted basis majority of the directors then in office, though less than a quorum, or by Parent a sole remaining director, and the directors so chosen shall hold office until the next annual election and until their successors are duly elected and shall qualify, unless sooner displaced.
Section 3. The business of the corporation shall be managed by or any under the direction of its direct board of directors which may exercise all such powers of the corporation and do all such lawful acts and things as are not by statute or indirect Subsidiaries pursuant by the certificate of incorporation or by these bylaws directed or required to be exercised or done by the stockholders.
Section 4. The board of directors of the corporation may hold meetings, both regular and special, either within or without the State of Delaware.
Section 5. The first meeting of each newly elected board of directors shall be held at such time and place as shall be fixed by the vote of the stockholders at the annual meeting and no notice of such meeting shall be necessary to the Offernewly elected directors in order legally to constitute the meeting, Parent provided a quorum shall be entitled present. In the event of the failure of the stockholders to designate for appointment fix the time or election to place of such first meeting of the Company's then existing Board of Directors, upon written notice to the Company, such number newly elected board of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee such meeting is not held at the time and place so fixed by the stockholders, the meeting may be held at such time and place as shall no longer be specified in a notice given as hereinafter provided for special meetings of the board of directors, or as shall be specified in a written waiver signed by all of the directors.
Section 6. Regular meetings of the board of directors may be held without notice at such time and at such place as shall from time to time be determined by the board.
Section 7. Special meetings of the board may be called by the president on two days' notice to each director, either personally or by mail or by facsimile communication; special meetings shall be called by the president or secretary in like manner and on like notice on the Board written request of Directors) two directors unless the board consists of only one director; in which case special meetings shall be called by the president or secretary in like manner and on like notice on the written request of the sole director.
Section 8. At all meetings of the board, a majority of directors shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the certificate of incorporation. If a quorum shall not be present at any meeting of the board of directors, the directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present.
Section 9. Unless otherwise restricted by the certificate of incorporation or these bylaws, any action required or permitted to be so appointed taken at any meeting of the board of directors or elected to of any committee thereof may be taken without a meeting, if all members of the Company's Boardboard or committee, as the case may be, consent thereto in writing or electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the board or committee. Such filing shall be in furtherance thereofpaper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 10. Unless otherwise restricted by the certificate of incorporation, members of the board of directors, or any committee designated by the board of directors, may participate in a meeting of the board of directors, or any committee, by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at the meeting.
Section 11. The board of directors may designate one or more committees, each committee to consist of one or more of the directors of the corporation. The board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not the member or members constitute a quorum, may unanimously appoint another member of the board of directors to act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent necessary, increase provided in the size resolution of the Board board of Directors or use its reasonable efforts directors, shall have and may exercise all the powers and authority of the board of directors in the management of the business and affairs of the corporation except as otherwise restricted by statute, and may authorize the seal of the corporation to obtain the resignation of such number be affixed to all papers which may require it.
Section 12. Each committee shall keep regular minutes of its current directors as is necessary to give effect meetings and report the same to the foregoing provisionboard of directors when required.
Section 13. At such timeUnless otherwise provided in the certificate of incorporation, the Company shall also, upon bylaws or the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee resolution of the Company's Board board of Directorsdirectors designating the committee, a committee may create one or more subcommittees, each subcommittee to consist of one or more members of the committee, and delegate to a subcommittee any or all of the powers and authority of the committee.
Section 14. Notwithstanding Unless otherwise restricted by the foregoing, until the Effective Timecertificate of incorporation or these bylaws, the Board board of Directors directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Company shall have board of directors and may be paid a fixed sum for attendance at least two directors who are directors each meeting of the Company on board of directors or a stated salary as director. No such payment shall preclude any director from serving the date corporation in any other capacity and receiving compensation therefor. Members of this Agreement and who are not officers special or standing committees may be allowed like compensation for attending committee meetings.
Section 15. Any director or the entire board of directors may be removed, with or without cause, by the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than holders of a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be shares entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be vote at an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseexcept as otherwise provided by statute.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Genvec Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares purchased pursuant to the Offer, Parent and from time to time thereafter, Parent, may, but shall not be entitled required to, designate up to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next nearest whole number, on the Company Board as shall give Parent representation on the Company Board equal to the product of Directors the number of directors on the Company Board (after giving effect to such new Parent designated directors) and the percentage that the percentage number of its designees Shares so purchased (on an as-converted basis) bears to the Board shall equal the percentage number of the outstanding shares of Company Common Stock owned of record by Parent Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors or and/or use its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect provide Parent with such level of representation and shall cause Parent’s designees to the foregoing provisionbe so elected. At such time, the The Company shall also, upon the request of Parent, also use its reasonable best efforts to cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's entire Company Board of Directors of to be on (i) each committee of the Company Board, (ii) the board of directors of each Subsidiary of the Company's Board , and (iii) each committee of Directorseach such board, in each case only to the extent permitted by applicable Laws. Notwithstanding the foregoingprovisions of this Section 5.13, until the Parent and the Company shall use reasonable efforts to ensure that, at all times prior to the Effective Time, at least two (2) of the Board of Directors members of the Company shall have at least two directors who Board are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Continuing Directors"); provided, however, that (xi) notwithstanding if at any time prior to the foregoing, in no event Effective Time there shall the requirement to have at least two Independent Directors result in Parent's designees constituting be less than a majority of the Company's Board of two (2) Continuing Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing serving as directors of the Company who for any reason, then the Company Board shall cause an individual or individuals selected by the remaining Continuing Director(s) to be appointed to serve on the Company Board (1and any such individual shall be deemed to be a Continuing Director for all purposes under this Agreement), and (ii) are Qualified Persons (as defined below) and if at any time prior to the Effective Time no Continuing Directors remain on the Company Board, then the Company Board shall appoint two (2) individuals who are willing to serve as Independent Directors)not officers, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer employees or Affiliate Affiliates of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing Purchaser to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, on the Company Board (and such designated Qualified Person individuals shall be deemed to be an Independent Director Continuing Directors for all purposes of under this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement).
(b) The Company’s obligations to effect election of Parent’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder, if applicable. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a)5.13, including mailing to stockholders its shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company which, unless Parent otherwise elects, shall mail be so mailed together with the Schedule 14D-9. The Company shall include in the Schedule 14D-9 if it receives from Parent such information with respect to Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary to fulfill the Company's obligations required under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderthereunder in order to fulfill its obligations under this Section 5.13. Parent or Merger Sub shall promptly supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nomineesits designees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary to Company, which information shall be true and correct in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseall material respects.
(c) Following During the period following the election or appointment of Parent's ’s designees pursuant to this Section 2.3(a)5.13 until the Effective Time, the unanimous approval by affirmative vote or written consent of all of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director required (and such approval shall constitute the approval of the Company Board, even if the Continuing Directors do not constitute a majority of all directors then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, Company shall be required or permitted required) to authorize) authorize (i) any amendment or termination of this Agreement or abandonment by the CompanyCompany or the Company Board of the Merger, (ii) any extension of time for performance of any obligation amendment to the Company Articles or action hereunder the Company Bylaws, other than as contemplated by Parent or Merger Subthis Agreement, (iii) any extension by the Company or the Company Board of the time for the performance of any of the obligations or other acts of Parent or Purchaser, including any extension of the Closing Date pursuant to Section 2.1 or any extension of the Effective Time of the Merger to any time subsequent to the time of filing of the Certificate of Merger pursuant to Section 2.1, (iv) any waiver or exercise of any of the Company's rights’s rights hereunder, benefits or remedies under (v) any Adverse Recommendation Change. For purposes of this Agreement, “Continuing Directors” shall mean the directors of the Company not affiliated with Parent who were not designated by Parent and (A) were “independent” as defined in the rules of the American Stock Exchange, or (ivB) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect were elected subsequent to the transactions contemplated herebydate hereof by, or on the recommendation of, (x) directors who were directors on the date hereof, or (y) the Continuing Directors. If no such directors are then in office, no action described in clauses (i) - (v) of this Section 5.13(c) shall be taken.
Appears in 1 contract
Sources: Merger Agreement (Guideline, Inc.)
Directors. (a) Promptly upon At the purchase Acceptance Time and from time to time thereafter, subject to compliance with applicable Law and the applicable rules of NASDAQ and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferJSE, Parent shall be entitled to elect or designate for appointment such number of directors as Parent or election Purchaser may designate in writing to the Company's then existing Board of Directors, upon written notice . Subject to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofapplicable Law, the Company shallshall take all action requested by Parent necessary to effect any election or designation pursuant to this Section 1.3(a), upon request including (at the election of Merger Sub, use its reasonable efforts promptly to cause Parent's designees ) (and any replacement designees in the event that any designee shall no longer be on the Board of Directorsi) to be so appointed or elected subject to the Company's BoardCompany Charter, and in furtherance thereof, to the extent necessary, increase increasing the size of the Board of Directors or use its reasonable efforts to obtain Company Board, and (ii) obtaining the resignation of such number of its current directors as is is, in each case, necessary to give effect enable such designees to be so elected or appointed to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementcompliance with applicable Law.
(b) The Company shall promptly take all actions required pursuant to Notwithstanding Section 14(f) 1.3(a), until the end of the Exchange Act Subsequent Offering Period, (i) Parent and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with cause the Schedule 14D-9 if it receives from Parent and Merger Sub Company Board to maintain at least two (2) directors who are members of the information below Company Board on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees or prior to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act date hereof and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, who are not officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election employees of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their its Affiliates may have as a holder or beneficial owner of shares of the Recused Director and who are selected by the Company Common Stock as a matter of law with respect Board prior to the election of directors or otherwise.
(c) Following Acceptance Time, subject to the election or appointment approval of Parent's designees pursuant to Section 2.3(a), which approval shall not be unreasonably withheld or delayed (the approval “Continuing Directors”) and (ii) any replacements for any Continuing Directors shall be approved as replacement Continuing Directors by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office who are members of the Company Board at such time (or, if there shall be only one Independent Director then in officeare two (2) Continuing Directors, by both such Continuing Directors). Notwithstanding anything to the contrary, until the end of the Subsequent Offering Period, the Independent Directoraffirmative vote of a majority of the Continuing Directors who are members of the Company Board at such time (or, if there are two (2) Continuing Directors, the approval of both such Continuing Directors) shall be required (A) for the Company to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof amend or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of terminate this Agreement by the Company, or (iiB) any extension of time for performance of any obligation to exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby’s rights hereunder.
Appears in 1 contract
Sources: Transaction Implementation Agreement (Grindrod Shipping Holdings Ltd.)
Directors. (a) Promptly Effective upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of any Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board that equals the product of Directors such (x) the total number of directors on the Company Board (giving effect to the election of any additional directors pursuant to this Section), multiplied by (y) the percentage that the percentage of its designees on the Board shall equal the percentage of the outstanding shares number of Company Common Stock Shares beneficially owned of record by Parent and/or Merger Subsidiary (including Company Shares accepted for payment) bears to the total number of Company Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Company Board, and in furtherance thereof, to including increasing the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisiondirectors, and seeking and accepting resignations of incumbent directors. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts take all action necessary to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Company Board and (ii) each board of Directorsdirectors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Company Board, in each case to the fullest extent permitted by Applicable Law. Notwithstanding the foregoing, until Parent and/or Merger Subsidiary acquires a majority of the Effective Timeoutstanding Company Shares on a fully- diluted basis, the Company shall use its reasonable best efforts to ensure that all of the members of the Company Board and such committees and boards as of Directors the date hereof who are not employees of the Company shall have at least two directors who are directors remain members of the Company on Board and such committees and boards until the date of this Agreement and who are not officers of the Company (the "Independent Directors")Effective Time; provided, however, provided that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority use of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of ’s reasonable best efforts require the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then increase the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able compensation payable to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person")Company Board, willing to serve as an Independent Directorcommittee or board member, in which case respect of such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancycapacity, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, other than in the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementordinary course.
(b) The Company’s obligations to appoint Parent’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange 1934 Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderthis Section. Parent or Merger Sub shall supply to the Company in writing, and be solely responsible for, writing any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)2.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors directors of the Company then in office (or, if there shall be only one Independent Director then in office, the Independent Director) who were not designated by Parent shall be required to authorize (and such authorization shall constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company Board, any decrease in or change of form of the Merger Consideration, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubSubsidiary, (iii) any waiver or exercise of compliance with any of the Company's rights, benefits agreements or remedies under this Agreement, or (iv) approval of any other action by conditions contained herein for the Company which could adversely affect the interests benefit of the Stockholders (other than Parent Company, and, as permitted by and Merger Sub) in accordance with respect to the transactions contemplated herebySection 7.03, any Adverse Recommendation Change.
Appears in 1 contract
Sources: Merger Agreement (Oracle Corp)
Directors. (a) Promptly upon the purchase by Purchaser of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (and provided that the Minimum Condition has been satisfied), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); providedthat will give Parent, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Securities Exchange Act, representation on the Board of Directors of the Company equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors of the Company (giving effect to the directors appointed or elected pursuant to this sentence and including current directors serving as officers of the Company) multiplied by the percentage that the aggregate number of Common Shares beneficially owned by Parent or any affiliate of Parent (including for purposes of this Section 1.3 Common Shares that are accepted for payment pursuant to the Offer, but excluding Common Shares held by the Company) bears to the number of Common Shares outstanding. At that time, if requested by Parent, the Company will also cause each committee of the Board of Directors of the Company to include persons designated by Parent constituting the same percentage of each committee as Parent's designees are of the Board of Directors of the Company. The Company shall, upon request by Parent, promptly increase the size of the Board of Directors of the Company or exercise reasonable efforts to secure the resignations of the number of directors necessary to enable Parent's designees to be elected to the Board of Directors of the Company in accordance with the terms of this Section 1.3 and to cause Parent's designees so to be elected. Subject to applicable law, the Company shall promptly take all action necessary pursuant to Section 14(f) of the Securities Exchange Act and Rule 14f-1 promulgated thereunderthereunder to fulfill its obligations under this Section 1.3 and shall include in the Schedule 14D-9 mailed to shareholders promptly after the commencement of the Offer (or in an amendment or an information statement pursuant to Rule 14f-1 if Parent has not yet designated directors) the information with respect to the Company and its officers and directors required under Section 14(f) and Rule 14f-1 to fulfill its obligations under this Section 1.3. Parent or Merger Sub shall will supply the Company in writingCompany, and be solely responsible for, any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Radisys Corp)
Directors. (a) Promptly upon Until the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority earlier of the issued and outstanding shares closing of Company Common the QIPO or such time as the Senior Investors shall no longer own at least thirty percent (30%) of the Senior Preferred Stock on a fully diluted basis owned by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, Shareholders on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofdate hereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees and each Shareholder (and for so long as such Shareholder owns any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee Equity Securities of the Company's Board ) shall take or cause to be taken all such action within their respective power and authority as may be required:
(i) to establish and maintain the authorized size of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company eight (the "Independent Directors")8) directors; provided, however, that each Shareholder agrees to take such action as may reasonably be requested by the Company (xA) notwithstanding to add one or more additional directors to the foregoingBoard of Directors of the Company in connection with an Approved Transaction, where the other party to the Approved Transaction is granted the right to participate in no event shall the requirement Board of Directors as part of such Approved Transaction; and (B) as necessary to have implement the rights of the holders of the Senior Preferred Stock set forth in Section 9.2 of the Series C Purchase Agreement.
(ii) to cause to be elected to the Board of Directors of the Company (A) three (3) individuals designated in writing from time to time by the Investor Shareholders, (B) two (2) additional individuals designated in writing from time to time by the Investor Shareholders, such nominees being neither a Shareholder or Company employee, nor a shareholder or limited partner or employee of an Investor Shareholder or general partner or manager thereof, (C) two (2) individuals nominated in writing from time to time by the Management Shareholders, and (D) one (1) additional individual nominated in writing from time to time by the Management Shareholders, such nominee being neither a Shareholder or a Company employee, nor a shareholder or limited partner or employee of an Investor Shareholder or general partner or manager thereof (all directors elected under this Section 2.1 are referred to herein collectively as the “Directors” and individually as a “Director”).
(iii) to maintain the quorum requirements for actions of the Board of Directors under the applicable law of the jurisdiction of incorporation; and to maintain the voting requirements for actions of the Board of Directors at least two Independent Directors result in Parent's designees constituting less than a majority of directors present at a meeting at which there is a quorum, except in respect of such matters as this Agreement, the Company's Charter or the By-laws may impose a greater voting requirement;
(iv) to cause to be removed forthwith from the Board of Directors any Director originally nominated pursuant to Section 2.1(b)(ii) above, when the Shareholder(s) which nominated that Director (the “Designating Shareholder”) request(s) such removal, which request may be made for any reason, with or without Cause, and not to remove a Director so nominated for any other reason other than for Cause;
(v) in the case of death, resignation, or other removal as herein provided of a Director, to elect another person designated by the Designating Shareholder to fill the vacancy created thereby; and
(vi) to prevent any action from being taken by the Board of Directors of the Company during the pendency of any vacancy due to death, resignation or removal of a Director, unless Parent the Designating Shareholder shall have failed for a period of five days after written notice from the Company of the vacancy to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementreplacement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) Each Shareholder acknowledges and agrees that each of the Exchange Act Directors nominated and Rule 14f-1 promulgated thereunder elected in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) accordance with this Agreement shall exercise his or her business judgment and Rule 14f-1 (which otherwise serve as directors of the Company for the benefit of all shareholders of the Company and shall mail together with have no obligation or entitlement to treat the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit Shareholder nominating such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees person to the Company's Board position of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent Director more favorably or Merger Sub shall supply the Company in writing, and be solely responsible for, differently than any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization other shareholder of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Directors. The Controlling Shareholders have designated ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇ (a) Promptly collectively and together with any successor appointed by the Company Committee who is approved by the Parent's Board upon the purchase death, disability or resignation of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofeither Designee, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number"Controlling Shareholders' Designees") as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, their designees to the Board of Directors of the Company Parent. Parent shall seek the ratification of the Controlling Shareholders' Designees as such Directors (in a class of Directors whose terms expire at the Parent's 2001 annual meeting) in the Parent's Proxy Statement; provided, however, that in the event that such designees are ratified to the Board of Directors of the Parent, such Board of Directors shall have at least two directors who are independent directors under any applicable rules of the Company on the date of this Agreement and who are not officers of the Company NASDAQ Small Cap Market (the "Independent Directors"); providedand provided further that, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever whatsoever, any remaining Independent Directors (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director if there shall be only one remaining) shall be entitled to designate any such Qualified Person or Persons a person to fill such vacancy, and such designated Qualified Person vacancy who shall be deemed to be an Independent Director for purposes of this AgreementAgreement or, or if no Independent Directors Director then remainremains, the other directors shall be required to designate two Qualified Persons persons to fill such vacanciesvacancies who shall be Independent Directors, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company . In connection with the foregoing, the Parent shall promptly take all actions required pursuant to Section 14(f) increase the size of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) a minimum of six directors. In addition, so long as the Exchange Act Proxy and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply Lock-up Agreements are in effect, the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election board of directors or otherwise.
(c) Following shall use good faith efforts to maintain a maximum of seven directors on the election or appointment of Parent's designees pursuant to Section 2.3(a), board of directors. In the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) event that (i) any amendment the Parent's board of directors shall be increased to more than seven directors or termination of this Agreement by the Company, (ii) any extension of time a Controlling Shareholders' Designee agrees to stand for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect reelection to the transactions contemplated herebyParent's board of directors at its annual meeting in 2001 and is not re-elected, the Proxy and Lock-up Agreement(s) shall terminate.
Appears in 1 contract
Sources: Merger Agreement (U S Pawn Inc)
Directors. If requested by Parent, (a) Promptly upon following the purchase by Purchaser of any Shares pursuant to the Offer and thereafter (b) the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferVoting Agreement, and from time to time thereafter as Shares are acquired by Purchaser, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that as will give Parent, subject to compliance with Section 14(f) of the percentage of its designees Exchange Act, representation on the Board shall of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors appointed or elected pursuant to this sentence and including current directors serving as officers of the Company) multiplied by the percentage that the aggregate number of Shares beneficially owned by Parent or any affiliate of Parent (including for purposes of this Section 1.3 such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by the Company) bears to the number of Shares outstanding. At such times, if requested by Parent, the Company will also cause each committee of the outstanding shares Board of Company Common Stock owned of record Directors to include persons designated by Parent and constituting the same percentage of each such committee as Parent's designees are of its direct or indirect Subsidiariesthe Board of Directors. In furtherance thereof, the The Company shall, upon request of Merger Subby Parent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to be elected to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors in accordance with the terms of each committee of this Section 1.3 and shall cause Parent's designees to be so elected; PROVIDED, HOWEVER, that, in the Companyevent that Parent's designees are appointed or elected to the Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have include at least two three directors who are directors of the Company on the date of this Agreement hereof and who are not neither officers of the Company nor designees, stockholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent (such directors, the "Independent DirectorsINDEPENDENT DIRECTORS"); provided, howeverPROVIDED FURTHER, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons three persons to fill such vacanciesthe vacancies none of whom shall be either an officer of the Company or a designee, stockholder, affiliate or associate of Parent, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The . Subject to applicable law, the Company shall promptly take all actions required action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 mailed to stockholders Stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply the Company in writing, and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary 14f-1. Notwithstanding anything in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect this Agreement to the election of directors or otherwise.
(c) Following contrary, prior to the election or appointment of Parent's designees pursuant to Section 2.3(a)Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment amend or termination of terminate this Agreement by on behalf of the Company, (ii) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits rights or remedies under this Agreementhereunder, (iii) extend the time for performance of Parent's obligations hereunder, or (iv) approval of take any other action by the Company which could adversely affect in connection with this Agreement required to be taken by the interests Board of Directors. Notwithstanding anything in this Agreement to the contrary, Parent agrees that, prior to the Effective Time, the affirmative vote of a majority of the Stockholders (other than Parent and Merger Sub) Independent Directors shall be sufficient to cause the Company to enforce any of its rights or remedies with respect to the transactions contemplated herebythis Agreement.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferAcceptance Time, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that equals the percentage product of its designees (i) the total number of directors on the Board shall equal of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent and/or Merger Subsidiary (including Shares accepted for payment) bears to the total number of Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request subject to Applicable Laws and the articles of Merger Subincorporation and bylaws of the Company, use its reasonable efforts promptly to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer to be on elected or appointed to the Board of Directors) to be so appointed or elected to , including by increasing the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionand seeking and accepting resignations of incumbent directors. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number, on (A) as is on the Company's Board of Directors of each committee of the Company's Board of Directors and (B) as requested by Parent, each board of directors of each Subsidiary of the Company (and each committee thereof) that represents the same percentage as such individuals represent on the Board of Directors, in each case, subject to Applicable Laws
(b) The Company’s obligations to appoint Parent’s designees to the Board of Directors shall be subject to Section 14(f) of the 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent shall supply to the Company in writing and be solely responsible for any information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) and Rule 14f-1, and the Company’s obligations under Section 2.3(b) shall be subject to the receipt of such information.
(c) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its commercially reasonable efforts to cause its Board of Directors of the Company shall to always have at least two (2) directors who are directors of the Company on the date of this Agreement hereof, who are not employed by the Company and who are not officers Affiliates or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the Company continued listing requirements of the NASDAQ (the "Independent “Continuing Directors"”); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two (2) for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)whatsoever, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Continuing Director shall be entitled to designate any such Qualified Person other Person(s) who shall not be an Affiliate or Persons employee of Parent or any of its Subsidiaries to fill such vacancy, vacancies and such designated Qualified Person Person(s) shall be deemed to be an Independent Director a Continuing Director(s) for purposes of this Agreement; provided further, or that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no Independent Directors such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided further, that if no Continuing Director then remainremains, the other directors shall be required to designate two Qualified (2) Persons who shall not be Affiliates, consultants, representatives or employees of Parent or any of its Subsidiaries to fill such vacancies, vacancies and such persons Persons shall be deemed to be Independent Continuing Directors for purposes of this Agreement.
(bd) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder Notwithstanding anything in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees this Agreement to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writingcontrary, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by on behalf of the Company, (ii) any amendment of this Agreement requiring action by the Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubSubsidiary, (iii) any exercise, enforcement or waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company's rights, benefits and any amendment of the articles of incorporation or remedies under this Agreement, or (iv) approval bylaws of any other action by the Company which could that would adversely affect the interests holders of Shares; provided, however that following the Acceptance Time, Parent may cause its designees elected or appointed pursuant to Section 2.3(a) to withdraw or modify any Adverse Recommendation Change that may have been made prior to such time without the approval of the Stockholders majority of the Continuing Directors. The Continuing Directors shall have the authority to retain counsel (other than Parent and Merger Sub) with respect which may include current counsel to the transactions contemplated herebyCompany) at the expense of the Company for the purpose of fulfilling their obligations hereunder, and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms.
Appears in 1 contract
Sources: Merger Agreement (Ixia)
Directors. (a) Promptly Effective upon the purchase acceptance for payment pursuant to the Offer of and payment for, and as long as Parent directly or indirectly owns, not less than a majority number of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to that satisfies the OfferMinimum Condition (the “Appointment Time”), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such of the Company that equals the percentage product of its designees (i) the total number of directors on the Board shall equal of Directors of the Company and (ii) the percentage that the number of shares of Company Common Stock Beneficially Owned by Parent (including shares of Company Common Stock accepted for payment) bears to the total number of outstanding shares of Company Common Stock owned of record by Parent Stock, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's ’s designees (and any replacement designees in to be elected or appointed to the event that any designee shall no longer be on the Company’s Board of Directors) , including using its best efforts to be so appointed or elected to seek and obtain resignations of a sufficient number of members of the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the ’s Board of Directors or use its reasonable efforts in order to obtain effectuate the resignation provisions of such number of its current directors as is necessary this Section 1.4(a), subject to give effect to the foregoing provisionSection 1.4(b). At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number) as is , on the Company's Board of Directors of each committee of the Board other than the committee of Independent Directors described in Section 1.4(d) that represents the same percentage as such individuals represent on the Board. Each member of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the ’s Board of Directors as of the Company shall have at least two directors who are directors of the Company on the date of this Agreement shall, concurrently with the execution of this Agreement, tender his or her resignation from the Company’s Board of Directors to be effective as of the Appointment Time or the Effective Time, as the case may be, in furtherance of effectuating the terms and provisions of this Section 1.4(a).
(b) Anything to the contrary contained herein notwithstanding, if Parent’s designees are appointed or elected to the Company’s Board of Directors, until the Effective Time (as defined in Section 2.2) the Company’s Board of Directors shall have two (2) directors who are directors on the date hereof and who are not neither officers or employees of the Company nor officers, stockholders, affiliates or associates (within the "meaning of the Securities Act and the Exchange Act) of Parent or persons having any other material relationship with Parent (one or more such directors being referred to as the “Independent Directors"”); provided, however, provided that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who one (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Director remains, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such one remaining Independent Director shall be entitled to designate any such Qualified Person or Persons a person who meets the foregoing criteria to fill such vacancythe vacancy created by the resignation of the other Independent Director, and such designated Qualified Person person shall be deemed to be an Independent Director for purposes of this Agreement, or ; provided further that if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons persons to fill such vacanciesthe vacancies who meet the foregoing criteria, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(bc) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's ’s obligations to appoint Parent's ’s designees to the Company's ’s Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(cd) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)1.4(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office (orDirectors, if there shall be only one Independent Director then in officeacting as a committee of the Company’s Board of Directors, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's ’s Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company's rights, benefits any action as to which the consent or remedies agreement of the Company is required under this Agreement, the assertion or enforcement of the Company’s rights under this Agreement to object to (i) failure to consummate the Merger or (ivii) approval a termination of this Agreement, or any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) determination with respect to any action to be taken or not be taken by or on behalf of the Company relating to this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Neon Systems Inc)
Directors. (a) Promptly Subject to compliance with applicable law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, by the Purchaser for Shares purchased pursuant to the Offer representing not less than a majority of the issued and outstanding shares of Company Common Stock Shares on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant basis, and from time to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereoftime thereafter, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause a majority of the directors of the Company to consist of Parent's designees (and any replacement designees in designees, including by accepting the event that any designee shall no longer be on resignations of those incumbent directors designated by the Board of Directors) to be so appointed Company or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase increasing the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in causing Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementelected.
(b) The Company Company's obligations to appoint Parent's designees to the Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder, if applicable. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.03 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.03. Parent or Merger Sub shall will supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseCompany.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a1.03 and prior to the Effective Time (as hereinafter defined), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Subthe Purchaser, (iii) any waiver or exercise of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests concerning this Agreement or any of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby, will require the concurrence of a majority of the directors of the Company then in office who were not designated by Parent.
Appears in 1 contract
Sources: Merger Agreement (Norand Corp /De/)
Directors. (a) Promptly Subject to compliance with applicable Law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares pursuant to the OfferOffer representing at least such number of Shares as shall satisfy the Minimum Condition, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent or its affiliates bears to the total number of Common Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase increasing the size of the Company Board and/or seeking the resignations of Directors one or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")more existing directors; provided, however, that prior to the Effective Time (x) notwithstanding as defined in Section 2.2), the foregoing, in no event Company Board shall the requirement to always have at least two Independent Directors result in Parent's members who are not officers, directors, employees or designees constituting less than a majority of the Purchaser or any of its affiliates (other than the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and ) (y) if "Purchaser Insiders"). If the number of Independent Directors shall be directors who are not Purchaser Insiders is reduced below two for any reason whatsoever (or if immediately following Consummation of prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, director who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Purchaser Insider shall be entitled to designate any such Qualified Person or Persons a person to fill such vacancy, vacancy who is not a Purchaser Insider and such designated Qualified Person who shall be a director not deemed to be an Independent Director a Purchaser Insider for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company Company's obligations to appoint Parent's designees to the Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.3 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a)1.3. The Company's obligations to appoint Parent's designees Parent will supply to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseRule.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rightsrights or conditions to consummation of the Merger hereunder, benefits or remedies under this Agreement, or (iv) in addition to any required approval of any other action thereof by the full Company which could adversely affect Board, will require the interests concurrence of a majority of the Stockholders directors of the Company then in office who are not Purchaser Insiders (other than Parent and Merger Subor in the case where there are two or fewer directors who are not Purchaser Insiders, the concurrence of one director who is not a Purchaser Insider) with respect if such amendment, termination, extension or waiver would be reasonably likely to have an adverse effect on the transactions contemplated herebyminority stockholders of the Company. The Company Board shall not delegate any matter set forth in this Section 1.3(c) to any committee of the Company Board.
Appears in 1 contract
Sources: Merger Agreement (Danaher Corp /De/)
Directors. (a) Promptly upon the purchase of and payment for, and for --------- Shares by Parent or any of its Subsidiaries (as long as Parent directly or indirectly owns, not less than defined in Section 8.10) which represent at least a majority of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offerbasis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board of Directors (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by Purchaser, Parent and any of their affiliates bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding. In furtherance thereof, the The Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in to be elected or appointed to the event that any designee shall no longer be on the Company's Board of Directors) Directors and to secure the resignations of such number of its incumbent directors as is necessary to enable Parent's designees to be so appointed or elected to the Company's BoardBoard of Directors, and in furtherance thereof, shall cause Parent's designees to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionbe so elected. At such timetimes, the Company shall also, upon the request of Parent, use its reasonable efforts will take all action necessary to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (A) each committee of the Board of Directors and (B) each board of directors (and committee thereof) of each of the Company's Board Subsidiaries (as defined below), in each case to the extent permitted by the rules of Directorsthe Nasdaq Stock Market. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 1.5 hereof), the Company shall retain as members of its Board of Directors of the Company shall have at least two (2) directors who that are directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent DirectorsCompany Designees"), and Parent and Purchaser shall not vote their Shares of Company Common Stock or take any other action inconsistent with this 5 provision; provided, howeverthat subsequent to the purchase of and payment for Shares pursuant to the Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's entire Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company Company's obligations under Section 1.3(a) shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take, at its expense, all actions required pursuant to such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under Section 2.3(a1.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint enable Parent's designees to be elected to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub shall Purchaser will supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following From and after the election or appointment of time, if any, that Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization a majority of the Company's Board of DirectorsDirectors and prior to the Effective Time, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger SubPurchaser hereunder, (iii) any waiver of any condition or exercise of any of the Company's rightsrights hereunder, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could hereunder or any action that would adversely affect the interests rights of the Stockholders stockholders of the Company or the holders of Options (other than Parent and Merger Subas defined in Section 2.1(d)) with respect to the transactions contemplated herebyhereby may be effected only by the action of a majority of the Company Designees then in office, which action shall be deemed to constitute the action of the full Board of Directors; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of this Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Purchaser or Parent and such persons shall be deemed to be Company Designees for purposes of this Agreement.
Appears in 1 contract
Directors. (a) Promptly upon following the purchase of and payment forfor the number of Shares that satisfies the Minimum Condition, and as long as Parent directly or indirectly ownsfrom time to time thereafter, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent Purchaser shall be entitled to designate for appointment or election to as directors of the Company's then existing Board of Directors, upon written notice to the Company, Company such number of directors, rounded up to the next whole number, on as is equal to the product of the total number of directors of the Company constituting the whole Company Board (giving effect to any increase in the number of Directors such directors in order to comply with this Section 1.03) and the percentage that the percentage voting power of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent and each Purchaser (including Shares paid for pursuant to the Offer), upon such payment, bears to the total voting power of its direct or indirect Subsidiaries. In furtherance thereofShares then outstanding, and the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause ParentPurchaser's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Company Board, and in furtherance thereofincluding, to without limitation, increasing the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionand seeking and accepting resignations of incumbent directors. At such time, the Company shall will also, upon the request of ParentParent or Purchaser, use its reasonable efforts to cause the Persons individual directors designated by Parent Purchaser to constitute at least the same percentage (number of members, rounded up to the next whole number, on (i) as is on each committee (or similar body) of the Company's Company Board other than the Special Committee and (ii) the board of Directors directors (or similar body) of each committee Subsidiary (as hereinafter defined) of the Company, and each committee (or similar body) thereof, that represents the same percentage as Purchaser's Board of Directorsdesignees represent on the Company Board. Notwithstanding the foregoing, in the event that Purchaser's designees are appointed or elected to the Company Board, the Company Board shall at all times until the Effective Time, the Board of Directors of the Company shall Time (as hereinafter defined) have at least two directors who are directors of the Company on the date of this Agreement and who are or otherwise not officers affiliates of the Company Parent (the "Independent Continuing Directors"); provided, however, provided that (x) notwithstanding in the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if that the number of Independent Continuing Directors shall be reduced below two for any reason whatsoever (or whatsoever, the Company Board shall cause the person designated by the remaining Continuing Director to fill such vacancy and such person shall be deemed to be a Continuing Director for all purposes of this Agreement or, if immediately following Consummation of no Continuing Directors then remain, the Offer there are not at least two then-existing other directors of the Company then in office shall designate two persons to fill such vacancies who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)not officers, then the number of Independent Directors required hereunder shall be onedirectors, unless the remaining Independent Director is able to identify a person, who is not an officer employees or Affiliate affiliates of the Company, Company or Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Continuing Directors for all purposes of this Agreement. Prior to the Effective Time, the Continuing Directors shall have the authority to retain such counsel and other advisors at the expense of the Company as are reasonably necessary to the exercise of their duties in connection with this Agreement, subject to approval by the Company of the terms of such retention, which approval shall not be unreasonably withheld or delayed. In addition, prior to the Effective Time, the Continuing Directors shall have the authority to institute any action, on behalf of the Company, to enforce performance of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint ParentPurchaser's designees to the Company's Company Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions and shall include in the Schedule 14D-9 (or an amendment thereto or an information statement pursuant to Rule 14f-1 if Purchaser has not theretofore designated directors) such information with respect to the Company and its officers and directors as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub and Purchaser shall supply to the Company in writingCompany, and be solely responsible for, any information with respect to either of them themselves and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a) 1.03 are in addition to and shall not limit any rights that Merger Subwhich Purchaser, Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of ParentPurchaser's designees pursuant to Section 2.3(a)1.03(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director directors of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubPurchaser, (iii) any waiver of any condition to the Company's obligations hereunder or exercise of any of the Company's rightsrights hereunder; provided, benefits or remedies under this Agreementthat if there shall be no Continuing Directors, or (iv) such approval of any other action may only be effected by the Company which could adversely affect the interests a majority vote of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyentire Company Board.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase acceptance for payment by Merger Subsidiary of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (the "APPOINTMENT TIME"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Subsidiary (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, or seeking and in furtherance thereofaccepting resignations of incumbent directors, or both; provided that, prior to the extent necessaryEffective Time (defined below in Section 2.3), increase the size of the Company's Board of Directors or use its reasonable efforts shall always have at least two members who were directors of the Company prior to obtain consummation of the resignation of such Offer (each, a "CONTINUING DIRECTOR"). If the number of its current directors as Continuing Directors is necessary reduced to give effect less than two for any reason prior to the foregoing provisionEffective Time, the remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of (x) each committee of the Company's Board Board, (y) each board of Directorsdirectors of each subsidiary (defined below in Section 4.1(a)) and (z) each committee of each such board. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of anything in this Agreement and who are not officers of to the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoingcontrary, in no the event shall the requirement to have at least two Independent Directors result in that Parent's designees constituting less than a majority of are elected to the Company's Board of Directors unless Parent shall have failed prior to designate a sufficient number the Effective Time, the affirmative vote of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two required for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who to (1a) are Qualified Persons (as defined below) and (2) are willing amend or terminate this Agreement or agree or consent to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer any amendment or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes termination of this Agreement, (b) waive any of the Company's rights, benefits or if no Independent Directors then remainremedies hereunder, (c) extend the time for performance of Parent's and Merger Subsidiary's respective obligations hereunder, or (d) approve any other directors shall be required action by the Company which is reasonably likely to designate two Qualified Persons adversely affect the interests of the stockholders of the Company (other than Parent, Merger Subsidiary and their affiliates (other than the Company and its subsidiaries)), with respect to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of the transactions contemplated by this Agreement.
(b) The Company's obligations to appoint designees to the Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Computer Associates International Inc)
Directors. (a) Promptly upon after the purchase first time at which the Purchaser accepts for payment shares of and payment forCompany Common Stock pursuant to the Offer (the “Acceptance Time”) satisfying the Minimum Condition, and from time to time thereafter as long shares of Company Common Stock are accepted for payment and paid for by the Purchaser, the Purchaser shall be entitled to designate such number of members of the Company Board (the “Purchaser Designees”), rounded up to the nearest whole number, as will give the Purchaser representation on the Company Board equal to the product of the total number of members of the Company Board (after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the number of shares of Company Common Stock beneficially owned by the Parent directly or indirectly owns, not the Purchaser at such time (including shares of Company Common Stock so accepted for payment) bears to the total number of shares of Company Common Stock then outstanding; provided that in no event shall the Purchaser Designees constitute less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesBoard. In furtherance thereof, the Company shall, upon the request of Merger Subthe Purchaser, use its reasonable best efforts promptly to cause Parent's designees (and in any replacement designees in the event that any designee shall no longer be on the Board of Directorswithin one business day) either to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors or use its reasonable efforts to obtain secure the resignation resignations of such number of its current directors the Company’s incumbent directors, or both, as is necessary to give effect enable the Purchaser Designees to be so elected or appointed to the foregoing provisionCompany Board and the Company shall take all actions available to the Company to cause the Purchaser Designees to be so elected or appointed. At such time, the Company shall alsoshall, upon if requested by the request of ParentPurchaser, use its reasonable efforts also take all action necessary to cause the Persons persons designated by Parent the Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of (i) each committee of the Company's Board Company Board, (ii) each board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board directors (or similar body) of Directors each subsidiary of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (yiii) if the number of Independent Directors shall be reduced below two for any reason whatsoever each committee (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(fsimilar body) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by each such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)board. The provisions of this Section 2.3(a) 1.3 are in addition to and shall not limit any rights that Merger Subwhich the Purchaser, the Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of applicable law with respect to the election of directors or otherwise.
(b) The Company shall take all actions required in order to fulfill its obligations under Section 1.3(a), including mailing to its stockholders the information required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder as part of the Schedule 14D-9, provided that the Parent and the Purchaser have timely supplied to the Company in writing any information with respect to the Parent and the Purchaser and the Purchaser Designees to the extent required by such Section 14(f) and Rule 14f-1, and Parent shall be solely responsible for such information.
(c) Following Notwithstanding the election or appointment provisions of Parent's designees pursuant this Section 1.3, the parties hereto shall use their respective reasonable best efforts to ensure that at least two of the members of the Company Board shall, at all times prior to the Effective Time (as defined in Section 2.3(a2.3 hereof), the approval by affirmative vote or written consent of all be directors of the Company who were directors of the Company on the date hereof (the “Independent Directors then in office (orDirectors”), provided that, if there shall be only one in office less than two Independent Directors for any reason, the Company Board shall cause the person designated by the remaining Independent Director to fill such vacancy who shall be deemed to be an Independent Director for all purposes of this Agreement, or if no Independent Directors then remain, the other directors of the Company then in officeoffice shall designate two persons to fill such vacancies who will not be directors, officers, employees or affiliates of the Independent Director) Parent or the Purchaser and such persons shall be required deemed to authorize (be Independent Directors for all purposes of this Agreement. From and such authorization shall after the time, if any, that the Purchaser Designees constitute the authorization a majority of the Company's Company Board of Directorsand prior to the Effective Time, and no other action on subject to the part of the Companyterms hereof, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or modification of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of the Parent or Merger Subthe Purchaser hereunder, (iii) any waiver of any condition to the Company’s obligations hereunder or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders ’s rights hereunder (other than Parent and Merger Suba waiver of clause (A) with respect of Section 2.7(b)) or any amendment to the transactions contemplated herebyCompany’s certificate of incorporation or bylaws may be effected only if (in addition to the approval of the Company Board as a whole) there are in office one or more Independent Directors and such action is approved by a majority of the Independent Directors then in office.
Appears in 1 contract
Sources: Merger Agreement (Perkinelmer Inc)
Directors. (a) Promptly upon Upon the purchase Offer Acceptance Time and all times thereafter, subject to compliance with applicable Legal Requirements and the applicable Marketplace Rules of and payment forNASDAQ, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent Purchaser shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that of the percentage Company as is equal to the product of its designees (i) the total number of directors on the Board shall equal of Directors of the Company (after giving effect to the directors elected or designated by Purchaser pursuant to this sentence) multiplied by (ii) the percentage that the aggregate number of Shares beneficially owned by Parent, Purchaser and any of their Affiliates bears to the outstanding shares total number of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereofAs used in this Agreement, the terms “beneficial ownership” (and its correlative terms) shall have the meaning assigned to such term in Rule 13d-3 under the Exchange Act. The Company shall, upon Purchaser’s request at any time following the purchase of Merger Suband payment for Shares pursuant to the Offer, use its reasonable efforts take all such actions necessary to (A) appoint to the Board of Directors of the Company the individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including, but not limited to, promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be filling vacancies or newly created directorships on the Board of Directors) to be so appointed or elected to Directors of the Company's Board, and in furtherance thereof, promptly increasing the size of the Board of Directors of the Company (including by amending the bylaws of the Company if necessary so as to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain of the resignation Company) and/or promptly securing the resignations of such number of its current incumbent directors as is are necessary or desirable to give effect enable Purchaser’s designees to be so elected or designated to the foregoing provision. At Board of Directors of the Company, and (B) cause Purchaser’s designees to be so appointed at such time, the . The Company shall alsoshall, upon Purchaser’s request following the request of ParentOffer Acceptance Time, use its reasonable efforts to also cause the Persons elected or designated by Parent Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of the Company of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company to the extent permitted by applicable Legal Requirements and the NASDAQ Marketplace Rules. From and after the Offer Acceptance Time, the Company shall, at Parent’s request, take all action necessary to elect to be treated as a “controlled company” as defined by NASDAQ Marketplace Rule 5615(c)(1) and make all necessary filings and disclosures associated with such status. The Company’s obligations under this Section 1.3(a) shall have at least two directors who are directors be subject to Section 14(f) of the Company on the date of this Agreement Exchange Act and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) Rule 14f-1 promulgated thereunder. The Company shall promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a1.3(a), including mailing to stockholders (together with the Schedule 14D-9) the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderas is necessary to enable Purchaser’s designees to be elected or designated to the Board of Directors of the Company. Parent or Merger Sub Purchaser shall supply the Company in writingwith, and be solely responsible for, any information with respect to either of them Purchaser’s designees and their nominees, Parent’s and Purchaser’s respective officers, directors and Affiliates to the extent required by such Section 14(f) of the Exchange Act and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subany of Purchaser, Parent or any of their respective Affiliates may have as a record holder or beneficial owner of shares of Company Common Stock Shares as a matter of law applicable Legal Requirements with respect to the election of directors or otherwise.
(cb) Following In the election event that Purchaser’s designees are elected or appointment designated to the Board of Parent's designees Directors of the Company pursuant to Section 2.3(a1.3(a), then, until the approval by affirmative vote or written consent Effective Time, the Company shall cause the Board of all Directors of the Independent Company to maintain three (3) directors who are members of the Board of Directors then in office (orof the Company on or prior to the date hereof and who are not officers, if there directors or employees of Parent, Purchaser, or any of their Affiliates, each of whom shall be only an “independent director” as defined by Rule 5605(a)(2) of the NASDAQ Marketplace Rules and eligible to serve on the Company’s audit committee under the Exchange Act and NASDAQ Marketplace Rules, and at least one Independent of whom shall be an “audit committee financial expert” as defined in Items 407(d)(5)(ii) and (iii) of Regulation S-K (the “Continuing Directors”); provided, however, that if any Continuing Director then in officeis unable to serve due to death, disability or resignation, the Independent DirectorCompany shall take all necessary action (including creating a committee of the Board of Directors of the Company) so that the Continuing Director(s) shall be required entitled to authorize elect or designate another Person (or Persons) to fill such vacancy, and such authorization Person (or Persons) shall be deemed to be a Continuing Director for purposes of this Agreement. If no Continuing Director then remains, the other directors shall designate three Persons who are not officers, directors or employees of Parent, Purchaser, or any of their Affiliates to fill such vacancies and such Persons shall be deemed Continuing Directors for all purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, if Purchaser’s designees constitute the authorization a majority of the Company's Board of Directors, and no other action on the part Directors of the CompanyCompany after the Offer Acceptance Time and prior to the Effective Time, including any action by any committee thereof or any other director then the affirmative vote of a majority of the Company, shall, unless otherwise Continuing Directors shall (in addition to the approval rights of the Board of Directors of the Company or the stockholders of the Company as may be required by law, the Company Charter Documents or applicable Legal Requirements) be required or permitted to authorize) (i) any amendment for the Company to amend or termination of terminate this Agreement by the CompanyAgreement, (ii) any extension of time for performance of any obligation to exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's ’s rights, benefits or remedies under this Agreementhereunder, if such action would adversely affect, or would reasonably be expected to adversely affect, the holders of Shares (other than Parent or Purchaser), (iii) to amend the Company Charter Documents if such action would adversely affect the holders of Shares (other than Parent or Purchaser), or (iv) approval of to take any other action by of the Board of Directors of the Company which could under or in connection with this Agreement if such action would materially and adversely affect affect, or would reasonably be expected to materially and adversely affect, the interests holders of the Stockholders Shares (other than Parent or Purchaser). The Continuing Directors shall have, and Merger Sub) with respect Parent shall cause the Continuing Directors to have, the authority to retain such counsel (which may include current counsel to the transactions contemplated herebyCompany or the Board of Directors of the Company) in reasonable circumstances and other advisors at the expense of the Company as determined by the Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for Shares by Parent or any of its direct or indirect Subsidiaries which, when taken together with Shares owned by Parent and the Purchaser, represent at least 80% of the then outstanding shares of ASARCO Common Stock pursuant to the Tender Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the ASARCO Board of Directors as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal Purchaser, Parent and any other wholly-owned subsidiary of Parent bears to the percentage total number of the outstanding shares of Company ASARCO Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding. In furtherance thereof, the Company ASARCO shall, upon request of Merger Subthe Purchaser, use its all reasonable efforts promptly either to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the its Board of Directors or use its reasonable efforts to obtain or, at ASARCO's election, secure the resignation resignations of such number of its current incumbent directors as is necessary to give effect enable Parent's designees to be so elected to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's ASARCO Board of Directors, and shall cause Parent's designees to be so elected. Notwithstanding the foregoing, until the Effective Time, the ASARCO shall retain as members of its Board of Directors of the Company shall have at least two directors who are directors of the Company ASARCO on the date of this Agreement and who are not officers of the Company hereof (the "Independent DirectorsASARCO Designees"); providedPROVIDED, howeverTHAT subsequent to the purchase of and payment for Shares pursuant to the Tender Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's entire Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (yDirectors. ASARCO's obligations under this Section 1.3(a) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation subject to Section 14(f) of the Offer there are not at least two then-existing directors Securities Exchange Act of 1934, as amended (the Company who (1) are Qualified Persons (as defined below"Exchange Act") and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company Rule 14f-1 promulgated thereunder. ASARCO shall promptly take all actions required pursuant to such Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a1.3(a), including mailing to stockholders shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint enable Parent's designees to be elected to the Company's ASARCO Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub shall the Purchaser will supply the Company in writing, and be solely responsible for, ASARCO any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a) 1.3 are in addition to and shall not limit any rights that Merger Sub, which the Purchaser or Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law Law with respect to the election of directors or otherwise.
(cb) Following From and after the election or appointment of time, if any, that Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all constitute a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's ASARCO Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the CompanyASARCO, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger Subthe Purchaser hereunder, (iii) any waiver or exercise of any condition or any of the CompanyASARCO's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by ASARCO hereunder may be effected only by the Company which could adversely affect the interests action of a majority of the Stockholders (other than Parent and Merger Sub) with respect directors of ASARCO then in office who were directors of ASARCO on the date hereof, which action shall be deemed to constitute the transactions contemplated herebyaction of the full Board of Directors; PROVIDED, THAT if there shall be no such directors, such actions may be effected by majority vote of the entire ASARCO Board of Directors.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority 17.1 The name of the issued and outstanding shares first Director(s) shall either be determined in writing by a Majority (or in the case of Company Common Stock on a fully diluted basis by Parent sole subscriber that subscriber) of, or any elected at a meeting of, the subscribers of its direct or indirect Subsidiaries pursuant the Memorandum of Association.
17.2 Subject to the Offerprovisions of these Articles and any relevant Issuing Resolutions, Parent a Director shall hold office until such time as he is removed from office by the Company by Ordinary Resolution provided that, in the case of the Common Share Directors, Independent Director and Preferred Share Directors respectively, only the relevant Shareholders entitled to appoint such Directors shall be entitled to designate for appointment or election remove them from office.
17.3 At any time and from time to time, the Company's then existing Board of Company shall have:
(a) two Directors, upon written notice who shall be appointed only by the holders of the Majority of the Common Shares from time to time (the Company, “Common Share Directors”);
(b) such number of directorsadditional Directors (each an “Independent Director”) as may be provided for in any Issuing Resolutions relating to any Class or Classes of Preferred Shares in respect of which there are Preferred Shares issued and outstanding, rounded up as may meet the requirements necessary to qualify as an “Independent Director” pursuant to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage provisions of the relevant Issuing Resolutions and who shall be appointed only by the holders of the Majority of the Common Shares from time to time;
(c) such number of additional Directors (the “Preferred Share Directors”) as may be provided for in any Issuing Resolutions relating to any Class or Classes of Preferred Shares in respect of which there are Preferred Shares issued and outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees who shall be appointed in the event that any designee shall no longer manner specified in such Issuing Resolutions.
17.4 The remuneration of the Directors may be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of determined by the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, by the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors Ordinary Resolution.
17.5 There shall be reduced below two no Shareholding qualification for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Directors unless, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)Common Share Directors only, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless determined otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests by Ordinary Resolution.
17.6 The Directors shall have power at any time and from time to time to appoint a Person as Director, either as a result of the Stockholders (other than Parent and Merger Sub) with respect a casual vacancy or as an additional Director, subject to the transactions contemplated herebymaximum number applicable from time to time in accordance with Article 17 and any relevant Issuing Resolutions.
Appears in 1 contract
Sources: Master Repurchase Agreement (Integrated Device Technology Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or After Purchaser has purchased any of its direct or indirect Subsidiaries Shares pursuant to the Offer, and from time to time thereafter as Shares are acquired by Purchaser, Parent shall be entitled has the right to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to will give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act Act, representation on the Board equal to at least that number of directors which equals the product of the total number of directors on the Board (giving effect to the directors appointed or elected pursuant to this sentence and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply including current directors serving as officers of the Company in writing, and be solely responsible for, any information with respect to either Company) multiplied by the percentage that the aggregate number of them and their nominees, officers, directors and Affiliates required Shares beneficially owned by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any affiliate of their Affiliates may have Parent (including for purposes hereof such Shares as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect are accepted for payment pursuant to the election Offer, but excluding Shares held by the Company or any of directors or otherwise.
(cits subsidiaries) Following bears to the election or appointment number of Parent's designees pursuant to Section 2.3(a)Shares outstanding. At each such time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) Company will also cause (i) any amendment or termination each committee of this Agreement by the CompanyBoard, (ii) any extension if requested by Parent, the board of time for performance directo▇▇ ▇▇ each of any obligation or action hereunder by Parent or Merger Sub, the Subsidiaries and (iii) any waiver if requested by Parent, each committee of such board, to include persons designated by Parent constituting the same percentage of each such committee or board as Parent's designees constitute on the Board. The Company shall, upon request by Parent, promptly increase th▇ ▇▇▇▇ of the Board or exercise its best efforts to secure the resignations of such number of directors as is necessary to enable Parent's designees to be elected to the Board in accordance with the above terms and to cause Parent's designees to be so elected; PROVIDED, HOWEVER, that if at any time or from time to time there is fewer than one Independent Director, the other directors will elect to the Board such number of persons so that the total of such persons and remaining Independent Directors serving on the Board is at least one. THE MERGER. The Merger Agreement provides that, after the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will be merged with and into the Company, the separate corporate existence of Purchaser shall cease, and the Company will continue as the Surviving Corporation. The Company has approved and consented to the Offer and at a meeting duly called and held on November 13, 2001, at which all of the directors were present, duly and unanimously: (i) approved and adopted the Merger Agreement and the transactions contemplated thereby, including the Offer, the Merger and Parent's rightsacquisition of Shares pursuant to the Stockholders Agreement; (ii) recommended 20 that you accept the Offer, benefits or remedies under this Agreementtender your Shares pursuant to the Offer and approve the Merger Agreement and the transactions contemplated thereby, or including the Merger; (iii) determined that the Merger Agreement and the transactions thereby, including the Offer and the Merger, are fair to and in your best interests; and (iv) approval of any other took all action by necessary to render the Company which could adversely affect the interests limitations on business combinations contained in Section 203 of the DGCL inapplicable to the Merger Agreement, the Stockholders (other than Parent Agreement and Merger Sub) with respect to the transactions contemplated herebythereby. CHARTER, BYLAWS, DIRECTORS AND OFFICERS. The Certificate of Incorporation and Bylaws of Purchaser in effect immediately prior to the Effective Time will be the Certificate of Incorporation and Bylaws of the Surviving Corporation until amended. The directors of Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation, and the officers of the Company immediately prior to the Effective Time will be the initial officers of the Surviving Corporation.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and acceptance for payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by --------- Parent or any of its direct or indirect Subsidiaries subsidiaries of Shares pursuant to the Offer, Parent shall be entitled the Company will, subject to designate for appointment or election compliance with Section 14(f) of the Exchange Act, take all actions necessary to cause persons designated by Purchaser to become directors of the Company so that the total number of such persons equals the product of the total number of directors on the Company Board (giving effect to the directors appointed or elected pursuant to this sentence and including current directors serving as officers of the Company's then existing Board ) multiplied by the percentage that the aggregate number of DirectorsShares beneficially owned by Parent, upon written notice Purchaser or any of their affiliates (including for purposes of this Section 1.03, such Shares as are accepted for payment pursuant to the CompanyOffer, such but excluding Shares held by the Company or any of its affiliates, which would not include Parent, Purchaser or any of their respective affiliates) bears to the number of directorsShares then outstanding; provided, rounded up however, that if the number of Shares purchased pursuant -------- ------- to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage Offer equals or exceeds a majority of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereofShares, the Board percentage described above will in all events be a majority of the members of the Company shallBoard. Notwithstanding any other provision hereof, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so Parent's designees are appointed or elected to the Company's Company Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 2.02), the Company Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not executive officers of the Company or, if no such persons are willing or able so to serve, who qualify as "independent directors" within the meaning of the New York Stock Exchange ("NYSE") Listed Company Manual (the "Independent ---- --------------------- ----------- Directors"); provided. At such times, howeverthe Company will use its best efforts to cause (i) --------- each committee of the Company Board, that (xii) notwithstanding if requested by Parent, the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority board of directors of each of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority subsidiaries and (yiii) if requested by Parent, each committee of such subsidiaries' boards to include persons designated by Parent constituting the number same percentage of Independent Directors shall be reduced below two for any reason whatsoever (each such committee or if immediately following Consummation of the Offer there board as Parent's designees are not at least two then-existing directors of the Company who (1) are Qualified Persons (Board. The Company shall, upon request by Parent, promptly increase the size of the Company Board or secure the resignations of such number of directors, or both, as defined belowis necessary to enable Parent's designees to be elected or appointed to the Company Board pursuant to this Section 1.03(a) and (2) are willing shall cause Parent's designees to serve as Independent Directors)be so elected or appointed. The Company Board shall approve, then and by approving the number execution and delivery of Independent Directors required hereunder shall be onethis Agreement by the Company, unless hereby does approve the remaining Independent Director is able to identify a person, who is not an officer or Affiliate taking of action by stockholders of the Company, Parent by written consent, to amend the By-Laws of the Company as may be necessary or any of their respective Subsidiaries (any such person being referred desirable to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes effect the provisions of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this AgreementSection 1.03.
(b) The Following the election or appointment of Parent's designees pursuant to this Section 1.03, and prior to the Effective Time, the approval of a majority of the Independent Directors shall be required to authorize (i) any amendment of this Agreement or the Certificate of Incorporation or By-Laws of the Company, (ii) any termination of this Agreement by the Company, (iii) any consent by the Company to any extension of the time for performance of any of the obligations or other acts of Parent or Purchaser or (iv) any waiver by the Company of compliance with any of the covenants or conditions contained in this Agreement for the benefit of the Company or any other rights of the Company under this Agreement. Any person who is a director on the date of this Agreement, but who, in order to carry out the provisions of this Section 1.03, is not a director at the Effective Time, shall be entitled to receive all payments (other than attendance fees) at the time such director resigns as he or she otherwise would have been entitled to receive under policies or programs in effect on the date hereof if he or she had been a director as of the Effective Time.
(c) Subject to applicable law, the Company shall promptly take all actions required action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing 1.03 and shall include in the Schedule 14D-9 mailed to stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from in order to fulfill its obligations under this Section 1.03. Parent and Merger Sub the information below on a basis timely Purchaser shall furnish to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, a timely manner so as to permit the Company to fulfill its obligations under this Section 1.03 and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with 14f-1. Subject to clause (b) of this Section 1.03, the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of this Section 2.3(a) 1.03 are in addition to and shall not limit any rights that Merger SubParent, Parent Purchaser or any of their Affiliates respective affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (Global Industrial Technologies Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for any Shares by Parent or any of its direct or indirect Subsidiaries pursuant to which represents at least a majority of the Offeroutstanding Shares (on a fully diluted basis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each Merger Subsidiary bears to the total number of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the The Company shall, upon request of Merger SubParent, use its reasonable best efforts promptly either to increase the size of its Board of Directors, including by amending the By-laws of the Company if necessary to so increase the size of such Board of Directors, or secure the resignations of such number of its incumbent directors, or both, as is necessary to enable Parent's designees to be so elected or appointed to the Company's Board of Directors, and shall use its best efforts to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of at such number of its current directors as is necessary to give effect to the foregoing provisiontime. At such time, the Company shall alsoshall, upon the request of Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors. Notwithstanding , (ii) each board of directors (or similar body) of each Subsidiary of the foregoingCompany, and (iii) each committee (or similar body) of each such board.
(b) In the event that Parent's designees are elected to the Company's Board of Directors, until the Effective TimeTime (as defined below), the Company shall cause its Board of Directors of the Company shall to have at least two three directors who are directors of the Company on the date of this Agreement hereof and who are not neither officers nor employees of the Company (the "Independent Directors"); provided, however, provided that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two if any Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed may not serve due to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (death or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)disability, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer Directors (or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director if there is only one remaining) shall be entitled to designate any such Qualified Person another person or Persons persons who served as a director on the date hereof to fill such vacancy, and such designated Qualified Person vacancies who shall be deemed to be an Independent Director Directors for purposes of this AgreementAgreement or, or if no Independent Directors Director then remainremains, the other directors shall be required to designate two Qualified Persons three persons to fill such vacancies, vacancies and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant . Notwithstanding anything in this Agreement to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder contrary, in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint event that Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as constitute a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization majority of the Company's Board of Directors, after the acceptance for payment of Shares pursuant to the Offer and no other action on prior to the part Effective Time, the affirmative vote of a majority of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, Independent Directors shall be required or permitted to authorize) (i) any amendment amend or termination of terminate this Agreement by the Company, (ii) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits or remedies under this Agreementhereunder, (iii) amend the Certificate of Incorporation or By-laws of the Company or (iv) approval of take any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) Company's Board of Directors under or in connection with respect this Agreement; provided, that if there shall be no Independent Directors as a result of such persons' deaths, disabilities or refusal to serve, such actions may be effected by majority vote of the transactions contemplated herebyentire Board of Directors of the Company.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as for any Shares by Parent directly or indirectly owns, not less than any of its subsidiaries which represents at least a majority of the issued and outstanding shares of Company Common Stock (on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offerbasis), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors of the Company as is equal to the product of the total number of directors on such Board (giving effect to the directors designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal Purchaser, Parent and any of their affiliates bears to the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiariesthen outstanding. In furtherance thereof, the The Company shall, upon request of Merger Subthe Purchaser, use its reasonable best efforts promptly either to cause increase the size of its Board of Directors or, at the Company's election, secure the resignations of such number of its incumbent directors as is necessary to enable Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, shall cause Parent's designees to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionbe so elected. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors, (ii) each board of directors (or similar body) of each Subsidiary (as defined in Section 3.1) of the Company and (iii) each committee (or similar body) of each such board, in each case only to the extent permitted by applicable law or the rules of any stock exchange on which the Company Common Stock is listed. Notwithstanding the foregoing, until the Effective TimeTime (as defined in Section 1.5 hereof), the Company shall use all reasonable efforts to retain as a member of its Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")hereof; provided, howeverthat subsequent to the purchase of and payment for Shares pursuant to the Offer, that (x) notwithstanding the foregoing, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's entire Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including mailing to shareholders the information required by such Section 14(f) and Rule 14f-1 as is necessary to enable Parent's designees to be elected to the Company's Board of Directors. Parent or Merger Sub shall the Purchaser will supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a)14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subwhich the Purchaser, Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock Shares as a matter of law with respect to the election of directors or otherwise.
(cb) Following From and after the election or appointment of time, if any, that Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization a majority of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of Parent or Merger Subthe Purchaser hereunder, (iii) any waiver of any condition or exercise of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect hereunder may be effected only by the interests action of a majority of the Stockholders (other than Parent and Merger Sub) with respect directors of the Company then in office who were directors of the Company on the date hereof, which action shall be deemed to constitute the transactions contemplated herebyaction of the full Board of Directors; provided, that if there shall be no such directors, such actions may be effected by majority vote of the entire Board of Directors of the Company.
Appears in 1 contract
Directors. If requested by Parent, (a) Promptly upon following the purchase by --------- Purchaser of any Shares pursuant to the Offer and thereafter (b) the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferVoting Agreement, and from time to time thereafter as Shares are acquired by Purchaser, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that as will give Parent, subject to compliance with Section 14(f) of the percentage of its designees Exchange Act, representation on the Board shall of Directors equal to at least that number of directors which equals the product of the total number of directors on the Board of Directors (giving effect to the directors appointed or elected pursuant to this sentence and including current directors serving as officers of the Company) multiplied by the percentage that the aggregate number of Shares beneficially owned by Parent or any affiliate of Parent (including for purposes of this Section 1.3 such Shares as are accepted for payment pursuant to the Offer, but excluding Shares held by the Company) bears to the number of Shares outstanding. At such times, if requested by Parent, the Company will also cause each committee of the outstanding shares Board of Company Common Stock owned of record Directors to include persons designated by Parent and constituting the same percentage of each such committee as Parent's designees are of its direct or indirect Subsidiariesthe Board of Directors. In furtherance thereof, the The Company shall, upon request of Merger Subby Parent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to be elected to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors in accordance with the terms of each committee of this Section 1.3 and shall cause Parent's designees to be so elected; provided, however, that, in the Companyevent -------- ------- that Parent's designees are appointed or elected to the Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have include at least two three directors who are directors of the Company on the date of this Agreement hereof and who are not neither officers of the Company nor designees, stockholders, affiliates or associates (within the meaning of the Federal securities laws) of Parent (such directors, the "Independent Directors"); provided, howeverprovided further, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then --------------------- -------- ------- remain, the other directors shall be required to designate two Qualified Persons three persons to fill such vacanciesthe vacancies none of whom shall be either an officer of the Company or a designee, stockholder, affiliate or associate of Parent, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The . Subject to applicable law, the Company shall promptly take all actions required action necessary pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 mailed to stockholders Stockholders promptly after the commencement of the Offer (or an amendment thereof or an information statement pursuant to Rule 14f-1 if Parent has not theretofore designated directors) such information with respect to the Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply the Company in writing, and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary 14f-1. Notwithstanding anything in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect this Agreement to the election of directors or otherwise.
(c) Following contrary, prior to the election or appointment of Parent's designees pursuant to Section 2.3(a)Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment amend or termination of terminate this Agreement by on behalf of the Company, (ii) any extension of time for performance of any obligation exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's rights, benefits rights or remedies under this Agreementhereunder, (iii) extend the time for performance of Parent's obligations hereunder, or (iv) approval of take any other action by the Company which could adversely affect in connection with this Agreement required to be taken by the interests Board of Directors. Notwithstanding anything in this Agreement to the contrary, Parent agrees that, prior to the Effective Time, the affirmative vote of a majority of the Stockholders (other than Parent and Merger Sub) Independent Directors shall be sufficient to cause the Company to enforce any of its rights or remedies with respect to the transactions contemplated herebythis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Beringer Wine Estates Holdings Inc)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of Company Shares by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Subsidiary pursuant to the Offer, seven of the Company's nine directors will resign, and the Parent shall be entitled to designate three replacements for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the The Company shall, upon request of Merger Subthe Subsidiary, use its reasonable best efforts promptly to cause the Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected. The remaining two directors (and any successors appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until before the Effective Time, as defined in Section 2.3 below, which successors shall not be affiliated with the Board of Directors of the Company shall have at least two directors who Parent) are directors of the Company on the date of this Agreement and who are not officers of the Company (referred to as the "Independent Original Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) " The Company shall promptly take all actions required pursuant to by Section 14(f) of the Exchange Act and related Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a1.3(a), including mailing to stockholders the required information required by (or, at the Parent's request, furnishing such Section 14(f) and Rule 14f-1 (which information to the Company shall mail together Parent for inclusion in the Offer Documents initially filed with the Schedule 14D-9 if it receives from Parent SEC and Merger Sub distributed to the information below on a basis timely to permit such mailingstockholders of the Company) as is necessary to fulfill enable the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to be elected to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. The Parent or Merger Sub shall the Subsidiary will supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of the Parent's designees under Section 2.3(a1.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(cb) Following Once the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization a majority of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or of this Agreement, any termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by of the obligations of the Parent or Merger Subthe Subsidiary hereunder, (iii) any waiver of any condition or exercise of any of the Company's rights, benefits rights hereunder or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect hereunder may be effected only by the interests joint action of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyOriginal Directors.
Appears in 1 contract
Sources: Merger Agreement (Medpartners Inc)
Directors. (a) Promptly Subject to compliance with applicable Laws, promptly upon the purchase acceptance for payment of and payment for, and such number of shares of Company Common Stock as long as Parent directly or indirectly owns, not less than represents at least a majority of the issued and then-outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferOffer and from time to time thereafter, Parent Purchaser shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such (x) the total number of directors on the Company Board (determined after giving effect to the election of any additional directors pursuant to this Section 1.3) multiplied by (y) the percentage that the percentage aggregate number of shares of Company Common Stock beneficially owned by Purchaser or any of its Affiliates bears to the total number of shares of Company Common Stock then outstanding, and Company shall, upon request of Purchaser, promptly take all actions necessary to cause Purchaser’s designees to be so elected (including, if necessary, seeking the resignations of one or more existing directors or increasing the size of the Company Board) in compliance with applicable Law; provided, however, that Purchaser shall be entitled to designate at least a majority of the directors on the Company Board shall equal the percentage (as long as Purchaser and its Affiliates beneficially own a majority of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly Stock); provided further that prior to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Company Board of Directors of the Company shall always have at least two directors who are directors of the Company on the date of this Agreement and members who are not officers officers, directors, employees or designees of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent Purchaser or any of their respective Subsidiaries Affiliates (any such person being referred “Purchaser Insiders”). If the number of directors who are not Purchaser Insiders is reduced below two prior to herein as the Effective Time, the remaining director who is not a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Purchaser Insider shall be entitled to designate any such Qualified a Person or Persons to fill such vacancy, vacancy who is not a Purchaser Insider and such designated Qualified Person who shall be a director not deemed to be an Independent Director a Purchaser Insider for all purposes of this Agreement, or if no Independent Directors and Company shall cause such designee to be appointed to the Company Board. If, notwithstanding compliance with the foregoing provisions, the number of directors who are not Purchaser Insiders is reduced to zero, then remain, the other directors on the Company Board shall be required designate and appoint to designate the Company Board two Qualified Persons to fill directors who are not officers, directors, employees or otherwise affiliated with Purchaser or Parent (other than as a result of such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementdesignation).
(b) The Company’s obligations to appoint Purchaser’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a)1.3, including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.3. Parent or Merger Sub shall will supply the to Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, officers, directors and its Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseRule.
(c) Following the election or appointment of Parent's Purchaser’s designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval any amendment or termination of this Agreement by affirmative vote or written consent of all Company, any extension by Company of the Independent Directors time for the performance of any of the obligations or other acts of Parent or Purchaser hereunder, any waiver or enforcement of any of Company’s rights or any of the obligations of Parent or Purchaser hereunder will require the consent of, or be taken at the direction of, a majority of the directors of Company then in office who are not Purchaser Insiders (or, or the approval or direction of the sole director if there shall only be only one Independent Director director then in officeoffice who is not a Purchaser Insider). Following the election or appointment of Parent’s designees pursuant to this Section 1.3 and prior to the Effective Time, any actions with respect to the Independent Director) enforcement of this Agreement by Company shall be required to authorize effected only by the action of a majority of the directors of Company then in office who are not Purchaser Insiders (or the action of the sole director if there shall only be one director then in office who is not a Purchaser Insider), and such authorization shall constitute the authorization of the Company's Company Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorizeauthorize any such action.
(d) (iPromptly after the Acceptance Date, Company shall take all action necessary to elect to be treated as a “controlled company” as defined by Nasdaq Marketplace Rule 5615(c) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) make all necessary filings and disclosures associated with respect to the transactions contemplated herebysuch status.
Appears in 1 contract
Sources: Merger Agreement (Adobe Systems Inc)
Directors. (a) Promptly upon If requested by Parent, the Company shall to the extent permitted by law, promptly following the purchase by Merger Sub of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer in accordance with the terms hereunder, Parent shall be entitled to designate for appointment or election to take, at its expense, all actions necessary (including calling a special meeting of the Company's then existing Board of DirectorsDirectors of the Company or, upon written notice only if necessary, the shareholders of the Company for this purpose) to cause natural Persons designated by Parent to become directors of the Company, Company so that the total number of such natural Persons equals that number of directors, rounded up to the next whole number, which represents the product of (x) the total number of directors on the Board board of Directors such directors of the Company multiplied by (y) the percentage that the percentage number of Shares so accepted for payment plus any shares beneficially owned by Parent or its designees affiliates on the Board shall equal date hereof bears to the percentage number of Shares outstanding at the outstanding shares time of Company Common Stock owned such acceptance for payment; provided, however, that prior to the Effective Time the total number of record directors designated by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size will not exceed 75% of the Board of Directors or use its reasonable efforts to obtain of the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionCompany. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of (i) each committee of the Company's Board of Directors; (ii) each board of directors (or similar body) of each Subsidiary of the Company, and (iii) each committee (or similar body) of each such board. Notwithstanding the foregoing, until the Effective TimeIn furtherance thereof, the Board of Directors Company will increase the size of the Company shall have at least two directors who are board of directors of the Company on Company, or use its best efforts to secure the date resignation of this Agreement and who are not officers directors, or both, as is necessary to permit Parent's designees to be elected to the board of directors of the Company (the "Independent Directors")Company; provided, however, that (x) notwithstanding prior to the foregoingEffective Time, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority board of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company shall always have at least three members who are neither officers of Parent nor designees, shareholders or affiliates of Parent (1) are Qualified Persons (as defined below) and (2) are willing "Parent Insiders"). The Company's obligations to serve as Independent Directors), then appoint designees to the number board of Independent Directors required hereunder directors of the Company now shall be one, unless the remaining Independent Director is able subject to identify a person, who is not an officer or Affiliate Section 14(f) of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, Exchange Act and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) Rule 14(f)-l thereunder. The Company shall promptly take all actions required pursuant to such Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 4.1 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent and Merger Sub the such information below on a basis timely to permit such mailing) as is necessary required under such Rule, Section and Schedule. Parent agrees to fulfill furnish to the Company's obligations under Section 2.3(a). The Company's obligations to appoint Company all information concerning Parent's designees which may be necessary to comply with the Company's Board of Directors shall be subject to compliance foregoing and agrees that such information will comply with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderthe rules and regulations thereunder and other applicable laws. Parent or Merger Sub shall supply Notwithstanding anything in this Agreement to the Company contrary, in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of event that Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent elected or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect appointed to the election Board of directors or otherwise.
(c) Following Directors of the election or appointment Company after the acceptance for payment of Parent's designees Shares pursuant to Section 2.3(a)the Offer and prior to the Effective Time, the approval by affirmative vote or written consent of all at least a majority of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, directors of the Independent Director) Company who are not Parent Insiders shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof a) amend or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of terminate this Agreement by the Company, (iib) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's material rights, benefits or remedies under this Agreementhereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (ivd) approval of take any other action by the Company Company's Board of Directors under or in connection with this Agreement which could would adversely affect the interests ability of the Stockholders shareholders of the Company to receive the Merger Consideration.
(other than Parent and b) The directors of Merger Sub) with respect Sub immediately prior to the transactions contemplated herebyEffective Time shall be the directors of the Surviving Corporation as of the Effective Time and until their successors are duly appointed or elected in accordance with applicable law.
Appears in 1 contract
Directors. (a) Promptly Subject to compliance with applicable Law and this Section 1.3, effective upon the purchase Purchaser’s acceptance for payment of Shares tendered and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries properly withdrawn pursuant to the OfferOffer (the “Acceptance Time”), and at all times thereafter, Parent shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (giving effect to the directors elected or designated by Parent pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by Parent, the Board shall equal Purchaser or any of their respective affiliates bears to the percentage total number of Shares then outstanding (including, in each case, any outstanding securities of the outstanding shares Company owned by Parent, the Purchaser or any of Company Common Stock owned of record by Parent and each of its direct their respective affiliates that are convertible or indirect Subsidiariesexchangeable into or exercisable for Shares on an as-converted basis). In furtherance thereofAfter the Acceptance Time, the Company shall, upon request of Merger SubParent’s request, use its reasonable efforts promptly take all actions as are reasonably necessary or desirable to cause enable Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed elected or elected designated to the Company's Company Board, and in furtherance thereofincluding but not limited to promptly filling vacancies or newly created directorships on the Company Board, promptly increasing the size of the Company Board (including by amending the Company Bylaws if necessary to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain Company Board) and/or promptly securing the resignation resignations of such number of its current directors as is necessary incumbent directors, and shall cause Parent’s designees to give effect to the foregoing provision. At be so elected or designated at such time. After the Acceptance Time, the Company shall also, upon the request of Parent’s request, use its reasonable efforts to cause the Persons directors elected or designated by Parent to the Company Board to serve on and constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of (i) each committee of the Company's Board Company Board, (ii) the board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on Subsidiary and (iii) each committee of each such board, in each case to the date extent permitted by applicable Law. The provisions of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1Section 1.3(a) are Qualified Persons (as defined below) in addition to and (2) are willing to serve as Independent Directors)shall not limit any rights that Parent, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent Purchaser or any of their respective Subsidiaries (any such person being referred to herein affiliates may have as a "Qualified Person"), willing record holder or beneficial owner of Shares as a matter of applicable Law with respect to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person the election of directors or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementotherwise.
(b) The Company’s obligations to appoint Parent’s designees to the Company Board shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a1.3(b), including mailing to stockholders (together with the Schedule 14D-9) any information required by such Section 14(f) and Rule 14f-1 (which to enable Parent’s designees to be elected or designated to the Company Board at the time or times contemplated by this Section 1.3. Parent shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely supply or cause to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees be supplied to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and Parent, the Purchaser, their nominees, respective officers, directors and Affiliates affiliates and proposed designees to the Company Board required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following After Parent’s designees are elected or designated to, and constitute a majority of, the election or appointment of Parent's designees Company Board pursuant to Section 2.3(a1.3(a), and prior to the approval Effective Time, the Company shall use its commercially reasonable efforts to cause the Company Board to maintain at least three directors who are members of the Company Board on the date hereof, each of whom shall be eligible to serve on the Company’s audit committee under the Exchange Act and at least one of whom shall be an “audit committee financial expert” as defined in Item 407(d)(5) of Regulation S-K and the instructions thereto (the “Continuing Directors”); provided, however, that if any Continuing Director is unable to serve due to death, disability or resignation, the Company shall take all necessary action (including creating a committee of the Company Board) so that the remaining Continuing Directors shall be entitled to elect or designate another Person that satisfies the foregoing independence requirements to fill such vacancy, and such Person shall be deemed to be a Continuing Director for purposes of this Agreement. After Parent’s designees are elected or designated to, and constitute a majority of, the Company Board pursuant to Section 1.3(a), and prior to the Effective Time, in addition to any approvals of the Company Board or the stockholders of the Company as may be required by the Company Certificate, the Company Bylaws or applicable Law, the affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of for the Company to terminate this Agreement by the Companyor amend this Agreement, (ii) any extension of time for performance of any obligation the Company to exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's ’s rights, benefits or remedies under this Agreement, (iii) except as otherwise contemplated by this Agreement, to amend the Company Certificate or the Company Bylaws or (iv) approval of to take any other action by of the Company which could Board under or in connection with this Agreement in each case, if such termination, amendment, exercise, waiver or other action would reasonably be expected to adversely affect the interests holders of the Stockholders Shares (other than Parent or the Purchaser); provided, however, that if there shall be no Continuing Directors as a result of such Persons’ deaths, disabilities or resignations, then such actions may be effected by majority vote of the entire Company Board. The Continuing Directors shall have, and Merger Sub) with respect Parent shall cause the Continuing Directors to have, the authority to retain such legal counsel (which may include current counsel to the transactions contemplated herebyCompany) at the expense of the Company (but in no event may such expenses exceed $25,000 in the aggregate), as determined by the Continuing Directors, and the authority to institute any action on behalf of the Company to enforce performance of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Microfluidics International Corp)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the The Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage shall at all times be composed of its designees on the Board shall equal the percentage no more than 12 directors unless approved by Holders of a majority in principal amount of the outstanding shares Notes. At all times during the term of Company Common Stock owned this Note, Holders of record by Parent and each a majority in principal amount of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request Notes shall have the right to designate an aggregate of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size two persons for election as members of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, (or up to an aggregate of four persons pursuant to Section 8(c)(iii) upon the request occurrence of Parent, use an Event of Default). Holder hereby acknowledges that its reasonable efforts two designees have been appointed to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors as of each committee the date of the issuance of this Note. The Company agrees to put such appointees up for election at the next meeting of shareholders called for the election of directors, all in accordance with the Company's Board Bylaws. The Company hereby further agrees to call annual shareholders' meetings for the election of Directors. Notwithstanding directors and to recommend that the foregoingCompany's shareholders votes in favor of director-nominees of the Holders, until the Effective Timeif any, at any such meeting called for election of directors; provided, that the Board of Directors of the Company shall have at least two directors who are directors of not be required to recommend for shareholder vote any person whom the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed has reasonably concluded after further due inquiry lacks the requisite moral fitness to designate a sufficient number sit on the Board of Persons to constitute at least a majority and (y) if Directors. The Company agrees that the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation members of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors nominated by the Holders shall be subject appointed to compliance with Section 14(f) each committee of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action including, but not limited to, the compensation committee; provided, that both such persons need not be appointed to the audit committee if such appointments would cause a breach of the continued listing requirements for the Common Stock on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyNasdaq Stock Market.
Appears in 1 contract
Directors. (a) Promptly Subject to compliance with applicable Law, promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares pursuant to the OfferOffer representing at least such number of Shares as shall satisfy the Minimum Condition, and from time to time thereafter, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board as is equal to the product of Directors such the total number of directors on the Company Board (determined after giving effect to the directors elected pursuant to this sentence) multiplied by the percentage that the percentage aggregate number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares beneficially owned of record by Parent or its affiliates bears to the total number of Common Shares then outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Boardelected, and in furtherance thereofincluding, to the extent if necessary, increase increasing the size of the Company Board and/or seeking the resignations of Directors one or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors")more existing directors; provided, however, that prior to the Effective Time (x) notwithstanding as defined in Section 2.2), the foregoing, in no event Company Board shall the requirement to always have at least two Independent Directors result in Parent's members who are not officers, directors, employees or designees constituting less than a majority of the Purchaser or any of its affiliates (other than the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and ) (y) if "Purchaser Insiders"). If the number of Independent Directors shall be directors who are not Purchaser Insiders is reduced below two for any reason whatsoever (or if immediately following Consummation of prior to the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Effective Time, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, director who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director Purchaser Insider shall be entitled to designate any such Qualified Person or Persons a person to fill such vacancy, vacancy who is not a Purchaser Insider and such designated Qualified Person who shall be a director not deemed to be an Independent Director a Purchaser Insider for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company Company's obligations to appoint Parent's designees to the Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) 1.3 and Rule 14f-1 (which the Company shall mail together with include in the Schedule 14D-9 if it receives from Parent such information with respect to the Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary required under such Section and Rule in order to fulfill the Company's its obligations under this Section 2.3(a)1.3. The Company's obligations to appoint Parent's designees Parent will supply to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nominees, its officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseRule.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a)1.3 and prior to the Effective Time, the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) any the Purchaser or waiver or exercise of any of the Company's rightsrights or conditions to consummation of the Merger hereunder, benefits or remedies under this Agreement, or (iv) in addition to any required approval of any other action thereof by the full Company which could adversely affect Board, will require the interests concurrence of a majority of the Stockholders directors of the Company then in office who are not Purchaser Insiders (other than Parent and Merger Subor in the case where there are two or fewer directors who are not Purchaser Insiders, the concurrence of one director who is not a Purchaser Insider) with respect if such amendment, termination, extension or waiver would be reasonably likely to have an adverse effect on the transactions contemplated hereby.minority stockholders of the Company. The Company
Appears in 1 contract
Sources: Merger Agreement (Microtest Inc)
Directors. (a) Promptly upon the purchase of The Company and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent Proha (or any Affiliate of its direct Proha or indirect Subsidiaries pursuant to any Proha Successor that beneficially owns the Offer, Parent Opus Shares purchased hereunder) shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its their respective commercially reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, ensure that the Board of Directors of the Company and Proha (or any successor entity that beneficially owns the Opus Shares purchased hereunder), as the case may be, shall have initially consist of not more than eight (8) directors.
(b) As long as Proha (or any Affiliate of Proha or any Proha Successor that beneficially owns the Opus Shares) beneficially owns Opus Shares that constitute at least two directors who (i) fifty percent (50%) of the aggregate issued and outstanding Common Stock, the Company shall use its commercially reasonable efforts to ensure that a total of five (5) Proha Nominees are members of the Board of Directors of the Company, (ii) thirty-three and one third percent (33.33%) but less than fifty percent (50%) of the aggregate issued and outstanding Common Stock, the Company shall use its commercially reasonable efforts to ensure that a total of four (4) Proha Nominees are members of the Board of Directors of the Company, (iii) ten percent (10%) but less than thirty-three and one third percent (33.33%) of the aggregate issued and outstanding Common Stock, the Company shall use its commercially reasonable efforts to ensure that a total of three (3) Proha Nominees are members of the Board of Directors of the Company. The Company and its Board of Directors may not take any action, without due cause, to remove the Proha Nominees serving as directors of the Company.
(c) The Company on shall ensure that its Board of Directors (and the date Company's nominating committee, if any) shall recommend the inclusion of this Agreement and who are not officers the Proha Nominees in the slate of nominees recommended to stockholders for election as directors at each annual meeting of stockholders of the Company.
(d) The Board of Directors of the Company (shall appoint Proha Nominees to serve on each committee of the "Independent Directors")Board of Directors in at least the same proportions that the number of Proha Nominees serving on the Board of Directors of the Company bears to the total number of directors then comprising the Board of Directors of the Company; provided, however, that the Company and Proha shall cooperate in order to comply with any NASD rules or regulations (xor the rules and regulations of any national exchange on which the Company's Common Stock is traded) notwithstanding relating to director independence on committees.
(e) If at any time, a vacancy is created on the foregoingBoard of Directors of the Company by reason of the incapacity, death, removal or resignation of any Proha Nominee, then Proha shall appoint an individual to fill such vacancy until the next meeting of stockholders.
(f) The Company shall provide the Proha Nominees serving as directors notice of each meeting of the Board of Directors of the Company at the same time and in no event the same manner as other members of its Board of Directors.
(g) The Proha Nominees serving as directors shall the requirement be entitled to have at least two Independent Directors result in Parent's designees constituting less than a majority compensation and indemnification rights consistent with those of other directors of the Company, including, without limitation, any rights to participate in stock option or similar plans. At all times on and after the date hereof, the Company shall be a party to and comply with indemnification agreements (in such form as is currently available to the Company's Board directors or such other form mutually satisfactory to Proha and the Company) with each of Directors unless Parent the nominees of Proha serving as directors. The Company shall have failed to designate at all times maintain a sufficient number of Persons to constitute directors' and officers' insurance policy covering the Company's directors and officers that provides, in the aggregate, at least a majority and (y) if $10,000,000 of liability coverage and, in any event, substantially no less coverage than the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of policy covering the Offer there are not at least two then-existing current directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes date of this Agreement.
(bh) The Company provisions of this Section 8.3 shall promptly take all actions required be further effected pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees an amendment to the Company's Bylaws in a form acceptable to Proha, which shall not be further amended by the Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writinga manner that, and be solely responsible forindividually or in the aggregate, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseadversely affects Proha.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Directors. (a) Promptly upon the purchase Upon Purchaser accepting for payment and paying for such number of Shares validly tendered and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries properly withdrawn pursuant to the OfferOffer as satisfies the Minimum Condition (the “Acceptance Time”), Parent and at all times thereafter, subject to compliance with the Company Charter Documents, applicable Law and the applicable Listing Rules of the NASDAQ, Purchaser shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board of Directors such as is equal to the product of (i) the total number of directors on the Company Board of Directors (after giving effect to the directors elected or designated by Purchaser pursuant to this sentence) multiplied by (ii) the percentage that the percentage aggregate number of its designees on Shares beneficially owned by Parent, Purchaser and any of their Affiliates bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the The Company shall, upon Purchaser’s request at any time following the purchase of Merger Suband payment for Shares pursuant to the Offer, use its reasonable efforts take all such actions necessary and desirable to (I) appoint to the Company Board of Directors the individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including, but not limited to, promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be filling vacancies or newly created directorships on the Company Board of Directors) , promptly increasing the size of the Company Board of Directors (including by amending the bylaws of the Company if necessary so as to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors or use its reasonable efforts to obtain Directors) and/or promptly securing the resignation resignations of such number of its current incumbent directors as is are necessary or desirable to give effect enable Purchaser’s designees to be so elected or designated to the foregoing provision. At Company Board of Directors, and (II) cause Purchaser’s designees to be so appointed at such time, the . The Company shall alsoshall, upon Purchaser’s request following the request of ParentAcceptance Time, use its reasonable efforts to also cause the Persons elected or designated by Parent Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of each committee of the Company's Company Board of DirectorsDirectors to the extent permitted by applicable Law and the NASDAQ Listing Rules. Notwithstanding From and after the foregoing, until the Effective Acceptance Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement take all action necessary to have at least two Independent Directors result in Parent's designees constituting less than elect to be treated as a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (“controlled company” as defined belowby NASDAQ Listing Rule 5615(c) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any make all necessary filings and disclosures associated with such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)status. The Company's ’s obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including, not later than 10 calendar days prior to the Company in writingExpiration Date, mailing to stockholders and be solely responsible for, any filing with the SEC the information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection to enable Purchaser’s designees to be elected or designated to the Company Board of Directors (the “14(f) Information”). The Company may elect to either (i) mail the 14(f) Information to its stockholders and file the 14(f) Information with the appointment SEC together with the Schedule 14D-9 or election (ii) mail the 14(f) Information to its stockholders and file the 14(f) Information with the SEC separately from the mailing and filing of the Schedule 14D-9 (any of such separate mailing and filing, being referred to as an “14(f) Information Statement”). Purchaser shall supply the Company with information with respect to Purchaser’s designees and Parent's designees under ’s and Purchaser’s respective officers, directors and Affiliates to the extent required by Section 2.3(a)14(f) and Rule 14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subany of Purchaser, Parent or any of their respective Affiliates may have as a record holder or beneficial owner of shares of Company Common Stock Shares as a matter of law applicable Law with respect to the election of directors or otherwise.
(cb) Following In the election event that Purchaser’s designees are elected or appointment designated to the Company Board of Parent's designees Directors pursuant to Section 2.3(a1.3(a), then, until the approval by affirmative vote or written consent Effective Time, the Company shall cause the Company Board of all Directors to maintain three directors who are members of the Independent Company Board of Directors then in office (oron the date hereof, if there each of whom shall be only an “independent director” as defined by Rule 5605(a)(2) of the NASDAQ Listing Rules and eligible to serve on the Company’s audit committee under the Exchange Act and NASDAQ rules, and at least one Independent of whom shall be an “audit committee financial expert” as defined in Item 401(h) of Regulation S-K and the instructions thereto (the “Continuing Directors”); provided, however, that if any Continuing Director then in officeis unable to serve due to death, disability or resignation, the Independent DirectorCompany shall take all necessary action (including creating a committee of the Company Board of Directors) so that the Continuing Director(s) shall be required entitled to authorize elect or designate another Person (or Persons) to fill such vacancy, and such authorization Person (or Persons) shall be deemed to be a Continuing Director for purposes of this Agreement. If no Continuing Director then remains, the other directors shall designate three Persons to fill such vacancies and such Persons shall be deemed Continuing Directors for all purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, if Purchaser’s designees constitute the authorization a majority of the Company's Company Board of DirectorsDirectors after the Acceptance Time and prior to the Effective Time, and no other action on then the part affirmative vote of a majority of the Company, including any action by any committee thereof or any other director Continuing Directors shall (in addition to the approval rights of the Company, shall, unless otherwise Company Board of Directors or the stockholders of the Company as may be required by law, the Company Charter Documents or applicable Law) be required or permitted to authorize) (i) any amendment for the Company to amend or termination of terminate this Agreement by the CompanyAgreement, (ii) any extension of time for performance of any obligation to exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's ’s rights, benefits or remedies under this Agreementhereunder, if such action would materially and adversely affect the holders of Shares (other than Parent or Purchaser), (iii) to amend the Company Charter Documents if such action would materially and adversely affect the holders of Shares (other than Parent or Purchaser), or (iv) approval of to take any other action by of the Company which could Board of Directors under or in connection with this Agreement if such action would materially and adversely affect the interests holders of the Stockholders Shares (other than Parent and Merger Sub) with respect or Purchaser); provided, however, that if there shall be no Continuing Directors as a result of such Persons’ deaths, disabilities or refusal to serve, then such actions may be effected by majority vote of the transactions contemplated herebyentire Company Board of Directors.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase first acceptance for payment by Merger Sub of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the Offer, which shall occur as soon as practicable after the Minimum Condition and all other conditions to the Offer hereunder have been fulfilled (the "Appointment Time"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 1.03) and (ii) the percentage that the percentage number of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock Shares owned of record by Parent or Merger Sub (including Shares accepted for payment) bears to the total number of Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action reasonably necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer to be on the elected or appointed to Company's Board of Directors) to be so appointed , including, without limitation, increasing the number of directors, or elected seeking and accepting resignations of incumbent directors, or both; provided that, prior to the Effective Time (as defined below), Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors shall always have at least two members who were directors of Company prior to consummation of the Offer and designated by ▇▇▇▇▇▇ ▇. ▇▇▇ and Avi Fox (who may designate themselves) (each such member, a "Continuing Director") and Parent shall take any and all actions required or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts advisable to cause the Persons designated by Parent election of each Continuing Director to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors during such period. If the number of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until Continuing Directors is reduced to less than two for any reason prior to the Effective Time, the Board remaining and departing Continuing Directors shall be entitled to designate a person to fill the vacancy and Parent shall cause the election of Directors of the Company shall have at least two directors who are directors of the Company on the date of such person. Notwithstanding anything in this Agreement and who are not officers of to the Company (the "Independent Directors"); providedcontrary, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in if Parent's designees constituting less than a majority of the are elected to Company's Board of Directors unless Parent shall have failed prior to designate a sufficient number the Effective Time, the affirmative vote of Persons to constitute at least a majority and (y) if the number of Independent Continuing Directors shall be reduced below two required for Company to (a) amend or terminate this Agreement or agree or consent to any reason whatsoever (amendment or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes termination of this Agreement, (b) waive any of Company's rights, benefits or if no Independent Directors then remainremedies hereunder, (c) extend the time for performance of Parent's and Merger Sub's respective obligations hereunder, or (d) approve any other directors shall be required action by Company which could adversely affect the interests of the stockholders of Company (other than Parent, Merger Sub and their affiliates (other than Company and its subsidiaries)), with respect to designate two Qualified Persons the transactions contemplated by this Agreement or otherwise, except to fill the extent that such vacancies, and such persons shall be deemed to be Independent Directors for purposes action similarly adversely affects all holders of this AgreementParent Common Stock.
(b) The Company's obligations to appoint designees to its Board of Directors shall be subject to Section 14(f) of the Exchange Act and Rule 14f-l promulgated thereunder. Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act 1.03 and Rule 14f-1 promulgated thereunder 14f-l in order to fulfill its obligations under this Section 2.3(a), including mailing 1.03 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary 14f-l to fulfill the Company's its obligations under this Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder1.03. Parent or Merger Sub shall will supply the to Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (E Trade Group Inc)
Directors. (a) Promptly Effective upon the purchase acceptance for payment pursuant to the Offer of and payment for, and as long as Parent directly or indirectly owns, not less than a majority number of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to that satisfies the OfferMinimum Condition (the "APPOINTMENT TIME"), Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such of the Company that equals the percentage product of its designees (i) the total number of directors on the Board shall equal of Directors of the Company and (ii) the percentage that the number of shares of Company Common Stock Beneficially Owned by Parent (including shares of Company Common Stock accepted for payment) bears to the total number of outstanding shares of Company Common Stock owned of record by Parent Stock, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in to be elected or appointed to the event that any designee shall no longer be on the Company's Board of Directors, including using its best efforts to seek and obtain resignations of a sufficient number of members of the Company's Board of Directors in order to effectuate the provisions of this Section 1.4(a), subject to Section 1.4(b). At such time, the Company will also use its best efforts to cause individuals designated by Parent to constitute the number of members, rounded up to the next whole number, on each committee of the Board other than the committee of Independent Directors described in Section 1.4(d) that represents the same percentage as such individuals represent on the Board. Each member of the Company's Board of Directors as of the date of this Agreement shall, concurrently with the execution of this Agreement, tender his or her resignation from the Company's Board of Directors to be so effective as of the Appointment Time or the Effective Time, as the case may be, in furtherance of effectuating the terms and provisions of this Section 1.4(a).
(b) Anything to the contrary contained herein notwithstanding, if Parent's designees are appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain Directors, until the resignation of such number of its current directors Effective Time (as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole numberdefined in Section 2.2) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two (2) directors who are directors on the date hereof and who are neither officers or employees of the Company on nor officers, stockholders, affiliates or associates (within the date of this Agreement and who are not officers meaning of the Company Securities Act and the Exchange Act) of Parent or persons having any other material relationship with Parent (one or more such directors being referred to as the "Independent DirectorsINDEPENDENT DIRECTORS"); provided, however, provided that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who one (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors)Director remains, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such one remaining Independent Director shall be entitled to designate any such Qualified Person or Persons a person who meets the foregoing criteria to fill such vacancythe vacancy created by the resignation of the other Independent Director, and such designated Qualified Person person shall be deemed to be an Independent Director for purposes of this Agreement, or ; provided further that if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons persons to fill such vacanciesthe vacancies who meet the foregoing criteria, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(bc) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(cd) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)1.4(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office (orDirectors, if there shall be only one Independent Director then in officeacting as a committee of the Company's Board of Directors, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company, any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver of compliance with any of the agreements or exercise conditions contained herein for the benefit of the Company, any action as to which the consent or agreement of the Company is required under this Agreement, the assertion or enforcement of the Company's rights, benefits rights under this Agreement to object to (i) failure to consummate the Merger or remedies under (ii) a termination of this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) determination with respect to any action to be taken or not be taken by or on behalf of the Company relating to this Agreement or the transactions contemplated hereby.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority fulfillment of the issued Minimum Condition and outstanding upon the acceptance for payment of the shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the OfferOffer and the delivery of funds to the depositary for the Offer to pay for such shares, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board Company’s board of Directors such directors that equals the percentage product of its designees (i) the total number of directors on the Board shall equal Company’s board of directors (giving effect to the percentage election of any additional directors pursuant to this Section) and (ii) a fraction whose numerator is the outstanding aggregate number of shares of Company Common Stock then beneficially owned of record by Parent and each Acquisition Co. (including shares of its direct or indirect Subsidiaries. In furtherance thereofCompany Common Stock accepted for payment pursuant to the Offer), and whose denominator is the total number of shares of Company Common Stock then outstanding (provided that, in no event shall Parent’s director designees constitute less than a majority of the entire board of directors of the Company), and the Company shall, upon request of Merger Sub, use its shall take all commercially reasonable efforts promptly actions necessary to cause Parent's ’s designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board’s board of directors, including increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, to the extent requested by Parent, and subject to the applicable requirements of Nasdaq (including Stock Market Rule 5605(c)), the Company shall also, upon the request of Parent, will also use its reasonable best efforts (i) to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next whole number) as is , on the Company's Board of Directors of each committee of the Company's Board ’s board of Directors. Notwithstanding directors, that represents the foregoing, until same percentage as the Effective Time, individuals designated by Parent represent on the Board board of Directors of the Company shall have at least two directors who are directors of the Company on and (ii) to cause individuals designated by Parent to constitute the date of this Agreement and who are not officers same percentage of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority members of the Company's Board board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons each Subsidiary (as defined in Section 3.1 below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementeach committee thereof.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's ’s obligations to appoint Parent's ’s designees to the Company's Board ’s board of Directors directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply the Company in writingpromptly take all actions, and be solely responsible for, any shall include in the Schedule 14D-9 such information with respect to either the Company and persons designated by Parent pursuant to Section 1.3(a), as Section 14(f) and Rule 14f-1 of them the Exchange Act require in order to fulfill its obligations under this Section, so long as Parent shall have furnished to the Company on a timely basis the information with respect to Parent and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with of the appointment or election of any of Parent's designees under Section 2.3(a)Exchange Act. The provisions of this Section 2.3(a) 1.3 are in addition to and shall not limit any rights that Merger Subwhich Acquisition Co., Parent or any of their Affiliates affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law applicable Law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)1.3(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors then in office Individuals who were directors of the Company on the date hereof (or“Continuing Directors”), or a single Continuing Director if there shall be only one Independent Director then in officesuch Continuing Director, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board ’s board of Directors, directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company’s board of directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger SubAcquisition Co. requiring the consent of the Company, (iii) any waiver or exercise of compliance by the Company of any of the Company's rightsagreements or conditions contained herein for the benefit of the Company or its shareholders, benefits any required or remedies under this Agreement, permitted consent or (iv) approval action by the board of directors of the Company hereunder and any other action by of the Company hereunder, which could adversely affect in the interests case of any of the Stockholders foregoing adversely affects in any material respect the holders of shares of Company Common Stock (other than Parent and Merger Sub) with respect to the transactions contemplated herebyor Acquisition Co.).
Appears in 1 contract
Sources: Merger Agreement (Foster L B Co)
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis acquisition by Parent or any of its direct or indirect Subsidiaries Purchaser pursuant to the OfferOffer of such number of Shares which satisfies the Minimum Condition and from time to time thereafter, Parent shall be entitled to designate for appointment or election to a majority of the members of the Company's then existing Board of Directors, upon written notice subject to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage compliance with Section 14(f) of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesExchange Act. In furtherance thereof, the The Company shall, upon request of Merger Subby Parent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use to the extent permitted by its reasonable efforts to obtain Restated Certificate of Incorporation and/or secure the resignation resignations of such number of its current directors as is necessary to give effect enable Parent's designees to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts be elected to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company and shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in cause Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) so elected. The Company shall promptly take take, at its expense, all actions action necessary to effect any such election, including mailing to its shareholders the information required pursuant to by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order form and substance reasonably satisfactory to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)its counsel. The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to this Section 2.3(a1.3 and prior to the Effective Time (as defined in Section 2.2), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by Agreement, extension for the Company, (ii) any extension performance or waiver of time for performance the obligations or other acts of any obligation or action hereunder by Parent or Merger Sub, (iii) any Purchaser or waiver or exercise of any of the Company's rightsrights hereunder, benefits shall require the concurrence of a majority of the Company's directors (or remedies under this Agreementthe concurrence of the director, if there is only one remaining) then in office who are directors on the date hereof, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders are directors (other than directors designated by Parent and Merger Subin accordance with this Section 1.3) with respect designated by such persons to fill any vacancy (the transactions contemplated hereby."Continuing Directors"). --------------------
Appears in 1 contract
Directors. (a) Promptly upon the purchase by the Purchaser of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to Shares in the Offer, Parent and from time to time thereafter, the Purchaser shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such that number of directors, rounded up to the next whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section 1.3) and (ii) the percentage that the percentage number of its designees on Shares owned by the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Purchaser, Parent and each of its any direct or indirect Subsidiaries. In furtherance thereofwholly owned subsidiary of Parent (including Shares purchased in the Offer) bears to the total number of Shares outstanding at such time, and to effect the foregoing the Company shall, shall upon request of Merger Subby the Purchaser, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to at the Company's Boardelection, and in furtherance thereof, to the extent necessary, either increase the size number of directors comprising the Company's Board of Directors or seek and accept resignations of incumbent directors. The first date on which designees of the Purchaser shall constitute a majority of the Company's Board of Directors is referred to in this Agreement as the "Cut-Off Date." At such times, the Company will use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable best ------------ efforts to cause the Persons individuals designated by Parent the Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this AgreementBoard.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) and Rule 14f-1 of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under this Section 2.3(a), including mailing 1.3 and shall include in the Schedule 14D-9 such information with respect to stockholders the information Company and its officers and directors as is required by such under Section 14(f) and Rule 14f-1 (which to fulfill such obligations. The Purchaser will supply to the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant Cut-Off Date and prior to Section 2.3(athe Effective Time (as defined below), the approval by affirmative vote or written consent Board of all Directors of the Independent Directors then in office Company shall have at least one director who is neither designated by the Purchaser, an employee of the Company nor otherwise affiliated with the Purchaser (or, if there shall be only one Independent Director then in officeor more of such directors, the "Independent DirectorDirectors") shall be required to authorize (and such authorization shall constitute any amendment of this Agreement or the authorization of the Company's Board of Directors, and no other action on the part Articles or --------------------- Organization or Bylaws of the Company, including any action by any committee thereof termination or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension by the Company of the time for the performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger Sub, (iii) the Purchaser or any exercise or waiver or exercise of any of the Company's rightsrights hereunder, benefits or remedies under this Agreement, or (iv) approval will require the concurrence of any other action by the Company which could adversely affect the interests a majority of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyIndependent Directors.
Appears in 1 contract
Directors. (a) Promptly Effective upon the purchase acceptance of and payment for, and as long as Parent directly or indirectly owns, not less than for at least a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Shares pursuant to the OfferOffer (the "OFFER ACCEPTANCE TIME"), Parent shall be entitled to designate for appointment or election to a majority of the total number of directors on the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that (giving effect to the percentage election of its designees on the Board any additional directors pursuant to this Section). The Company shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain Directors, including increasing the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionand seeking and accepting resignations of incumbent directors. At such time, to the extent requested by Parent, the Company shall also, upon the request of Parent, use its reasonable efforts to also cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) on (i) each committee of the Board and (ii) each Board of Directors of each Subsidiary of the Company (and each committee thereof) as is the number of directors designated by Parent represents on the Company's Board of Directors Directors; provided that if Parent and/or Acquisition Sub acquires 85% or more of the shares of the Company Common Stock outstanding then Parent shall be entitled to designate all members of (i) each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the and (ii) each Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers each Subsidiary of the Company (and each committee thereof). Notwithstanding the "Independent Directors"); providedprovisions of this Section 1.3, however, the parties hereto shall use their respective reasonable efforts to ensure that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority one of the members of the Company's Board of Directors unless Parent shall, at all times prior to the Effective Time (as hereinafter defined), be a director of the Company who was a director of the Company on the date hereof (the "CONTINUING DIRECTOR"), provided that if no Continuing Director shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two remain for any reason whatsoever (or if immediately following Consummation of reason, the Offer there are not at least two then-existing other directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing then in office shall designate one person to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, fill such vacancy who is not an officer or Affiliate employee or affiliate of the Company, Parent or Acquisition Sub or any of their respective Subsidiaries (any affiliates and such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent a Continuing Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for all purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section, so long as Parent or Merger Sub shall have provided to the Company on a timely basis the information referred to in the following sentence. Parent shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a)1.3(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment of this Agreement requiring action by the Company's Board of Directors, any extension of time for performance of any obligation or action hereunder by Parent or Merger Acquisition Sub, (iii) any waiver or exercise of compliance with any of the agreements or conditions contained herein for the benefit of the Company's rights, benefits any consent or remedies under this Agreement, or (iv) approval action by the Board of Directors of the Company hereunder and any other action by of the Company hereunder which could adversely affect affects the interests holders of the Stockholders shares of Company Common Stock (other than Parent and Merger or Acquisition Sub) with respect to ); provided that, if there is no Continuing Director, such actions may be effected by majority vote of the transactions contemplated herebyactive Board of Directors.
Appears in 1 contract
Directors. (a) Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser for Shares purchased pursuant to the Offer, Parent and from time to time thereafter, Parent, may, but shall not be entitled required to, designate up to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next nearest whole number, on the Company Board as shall give Parent representation on the Company Board equal to the product of Directors the number of directors on the Company Board (after giving effect to such new Parent designated directors) and the percentage that the percentage number of its designees Shares so purchased (on an as-converted basis) bears to the Board shall equal the percentage number of the outstanding shares of Company Common Stock owned of record by Parent Shares outstanding, and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger SubParent, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors or and/or use its reasonable best efforts to obtain secure the resignation resignations of such number of its current directors as is necessary to give effect provide Parent with such level of representation and shall cause Parent’s designees to the foregoing provisionbe so elected. At such time, the The Company shall also, upon the request of Parent, also use its reasonable best efforts to cause the Persons persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's entire Company Board of Directors of to be on (i) each committee of the Company Board, (ii) the board of directors of each Subsidiary of the Company's Board , and (iii) each committee of Directorseach such board, in each case only to the extent permitted by applicable Laws. Notwithstanding the foregoingprovisions of this Section 5.13, until the Parent and the Company shall use reasonable efforts to ensure that, at all times prior to the Effective Time, at least two (2) of the Board of Directors members of the Company shall have at least two directors who Board are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Continuing Directors"); provided, however, that (xi) notwithstanding if at any time prior to the foregoing, in no event Effective Time there shall the requirement to have at least two Independent Directors result in Parent's designees constituting be less than a majority of the Company's Board of two (2) Continuing Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing serving as directors of the Company who for any reason, then the Company Board shall cause an individual or individuals selected by the remaining Continuing Director(s) to be appointed to serve on the Company Board (1and any such individual shall be deemed to be a Continuing Director for all purposes under this Agreement), and (ii) are Qualified Persons (as defined below) and if at any time prior to the Effective Time no Continuing Directors remain on the Company Board, then the Company Board shall appoint two (2) individuals who are willing to serve as Independent Directors)not officers, then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer employees or Affiliate Affiliates of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing Purchaser to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, on the Company Board (and such designated Qualified Person individuals shall be deemed to be an Independent Director Continuing Directors for all purposes of under this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement).
(b) The Company’s obligations to effect election of Parent’s designees to the Company Board shall promptly take all actions required pursuant be subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder, if applicable. The Company shall promptly take all actions required pursuant to such Section and Rule in order to fulfill its obligations under this Section 2.3(a)5.13, including mailing to stockholders its shareholders the information required by such Section 14(f) and Rule 14f-1 (which the Company which, unless Parent otherwise elects, shall mail be so mailed together with the Schedule 14D-9. The Company shall include in the Schedule 14D-9 if it receives from Parent such information with respect to Company and Merger Sub the information below on a basis timely to permit such mailing) its officers and directors as is necessary to fulfill the Company's obligations required under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderthereunder in order to fulfill its obligations under this Section 5.13. Parent or Merger Sub shall promptly supply the Company in writing, and be solely responsible for, any information with respect to either of them itself and their nomineesits designees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary to Company, which information shall be true and correct in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwiseall material respects.
(c) Following During the period following the election or appointment of Parent's ’s designees pursuant to this Section 2.3(a)5.13 until the Effective Time, the unanimous approval by affirmative vote or written consent of all of the Independent Continuing Directors then in office (or, if there shall be only one Independent Director required (and such approval shall constitute the approval of the Company Board, even if the Continuing Directors do not constitute a majority of all directors then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, Company shall be required or permitted required) to authorize) authorize (i) any amendment or termination of this Agreement or abandonment by the CompanyCompany or the Company Board of the Merger, (ii) any extension of time for performance of any obligation amendment to the Company Articles or action hereunder the Company Bylaws, other than as contemplated by Parent or Merger Subthis Agreement, (iii) any extension by the Company or the Company Board of the time for the performance of any of the obligations or other acts of Parent or Purchaser, including any extension of the Closing Date pursuant to Section 2.1 or any extension of the Effective Time of the Merger to any time subsequent to the time of filing of the Certificate of Merger pursuant to Section 2.1, (iv) any waiver or exercise of any of the Company's rights’s rights hereunder, benefits or remedies under (v) any Adverse Recommendation Change. For purposes of this Agreement, “Continuing Directors” shall mean the directors of the Company not affiliated with Parent who were not designated by Parent and (A) were “independent” as defined in the rules of the American Stock Exchange, or (ivB) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect were elected subsequent to the transactions contemplated herebydate hereof by, or on the recommendation of, (x) directors who were directors on the date hereof, or (y) the Continuing Directors. If no such directors are then in office, no action described in clauses (i) — (v) of this Section 5.13(c) shall be taken.
Appears in 1 contract
Sources: Merger Agreement (Infousa Inc)
Directors. (a) Promptly upon Upon Purchaser accepting, for the purchase first time, for payment and paying for such number of Shares validly tendered and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries properly withdrawn pursuant to the OfferOffer as satisfies the Minimum Condition (the “Acceptance Time”), Parent and at all times thereafter, subject to compliance with the Company Charter Documents, applicable Law and the applicable Marketplace Rules of the NASDAQ, Purchaser shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board of Directors such as is equal to the product of (i) the total number of directors on the Company Board of Directors (after giving effect to the directors elected or designated by Purchaser pursuant to this sentence) multiplied by (ii) the percentage that the percentage aggregate number of its designees on Shares beneficially owned by Parent, Purchaser and any of their Affiliates bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect SubsidiariesShares then outstanding. In furtherance thereof, the The Company shall, upon Purchaser’s request at any time following the purchase of Merger Suband payment for Shares pursuant to the Offer, use its reasonable efforts take all such actions necessary to (I) appoint to the Company Board of Directors the individuals designated by Purchaser and permitted to be so designated by the first sentence of this Section 1.3(a), including, but not limited to, promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be filling vacancies or newly created directorships on the Company Board of Directors) , promptly increasing the size of the Company Board of Directors (including by amending the bylaws of the Company if necessary so as to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors or use its reasonable efforts to obtain Directors) and/or promptly securing the resignation resignations of such number of its current incumbent directors as is are necessary or desirable to give effect enable Purchaser’s designees to be so elected or designated to the foregoing provision. At Company Board of Directors, and (II) cause Purchaser’s designees to be so appointed at such time, the . The Company shall alsoshall, upon Purchaser’s request following the request of ParentAcceptance Time, use its reasonable efforts to also cause the Persons elected or designated by Parent Purchaser to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of each committee of the Company's Company Board of DirectorsDirectors to the extent permitted by applicable Law and the NASDAQ Marketplace Rules. Notwithstanding From and after the foregoing, until the Effective Acceptance Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement take all action necessary to have at least two Independent Directors result in Parent's designees constituting less than elect to be treated as a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (“controlled company” as defined belowby NASDAQ Marketplace Rule 5615(c) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any make all necessary filings and disclosures associated with such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a)status. The Company's ’s obligations to appoint Parent's designees to the Company's Board of Directors under this Section 1.3(a) shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub The Company shall supply promptly upon execution of this Agreement take all actions required pursuant to Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 1.3(a), including mailing to stockholders (together with the Company in writing, and be solely responsible for, any Schedule 14D-9) the information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection to enable Purchaser’s designees to be elected or designated to the Company Board of Directors. Purchaser shall supply the Company with information with respect to Purchaser’s designees and Parent’s and Purchaser’s respective officers, directors and Affiliates to the appointment or election of any of Parent's designees under extent required by Section 2.3(a)14(f) and Rule 14f-1. The provisions of this Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subany of Purchaser, Parent or any of their respective Affiliates may have as a record holder or beneficial owner of shares of Company Common Stock Shares as a matter of law applicable Law with respect to the election of directors or otherwise.
(cb) Following In the election event that Purchaser’s designees are elected or appointment designated to the Company Board of Parent's designees Directors pursuant to Section 2.3(a1.3(a), then, until the approval by affirmative vote or written consent Effective Time, the Company shall cause the Company Board of all Directors to maintain three (3) directors who are members of the Independent Company Board of Directors then in office (oron or prior to the date hereof and who are not officers, if there directors or employees of Parent, Purchaser, or any of their Affiliates, each of whom shall be only an “independent director” as defined by Rule 5605(a)(2) of the NASDAQ Marketplace Rules and eligible to serve on the Company’s audit committee under the Exchange Act and NASDAQ rules, and at least one Independent of whom shall be an “audit committee financial expert” as defined in Item 401(h) of Regulation S-K and the instructions thereto (the “Continuing Directors”); provided, however, that if any Continuing Director then in officeis unable to serve due to death, disability or resignation, the Independent DirectorCompany shall take all necessary action (including creating a committee of the Company Board of Directors) so that the Continuing Director(s) shall be required entitled to authorize elect or designate another Person (or Persons) to fill such vacancy, and such authorization Person (or Persons) shall be deemed to be a Continuing Director for purposes of this Agreement. If no Continuing Director then remains, the other directors shall designate three Persons who are not officers, directors or employees of Parent, Purchaser, or any of their Affiliates to fill such vacancies and such Persons shall be deemed Continuing Directors for all purposes of this Agreement. Notwithstanding anything in this Agreement to the contrary, if Purchaser’s designees constitute the authorization a majority of the Company's Company Board of DirectorsDirectors after the Acceptance Time and prior to the Effective Time, and no other action on then the part affirmative vote of a majority of the Company, including any action by any committee thereof or any other director Continuing Directors shall (in addition to the approval rights of the Company, shall, unless otherwise Company Board of Directors or the stockholders of the Company as may be required by law, the Company Charter Documents or applicable Law) be required or permitted to authorize) (i) any amendment for the Company to amend or termination of terminate this Agreement by the CompanyAgreement, (ii) any extension of time for performance of any obligation to exercise or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of waive any of the Company's ’s rights, benefits or remedies under this Agreementhereunder, if such action would adversely affect, or would reasonably be expected to adversely affect, the holders of Shares (other than Parent or Purchaser), (iii) to amend the Company Charter Documents if such action would adversely affect the holders of Shares (other than Parent or Purchaser), or (iv) approval of to take any other action by of the Company which could Board of Directors under or in connection with this Agreement if such action would adversely affect affect, or would reasonably be expected to adversely affect, the interests holders of the Stockholders Shares (other than Parent and Merger Sub) with respect to the transactions contemplated herebyor Purchaser).
Appears in 1 contract
Directors. Section 2.1 From the date hereof until July 25, 2010 (a) Promptly upon the purchase of and payment for“Initial Period”), and as so long as Parent directly the Unitholders (or indirectly ownstheir permitted assignees) remain Affiliates of any member of the ▇▇▇▇▇▇▇ Family, not the Unitholders (or their permitted assignees) shall have the right to designate two Directors who are Qualified Candidates. After the Initial Period, so long as the Unitholders (or their permitted assignees) remain Affiliates of any member of the ▇▇▇▇▇▇▇ Family, the Unitholders (or their permitted assignees) shall have the right to designate a number of Directors as set forth below so long (and only so long) as the members of the ▇▇▇▇▇▇▇ Family Beneficially Own, in the aggregate, the percentage of outstanding Common Units set forth below: A. two 35% or more B. one 10% or more but less than 35% C. none less than 10%
Section 2.2 The Unitholders shall affect such designation only by delivering to the GP a written notice (the “Designation Notice”) identifying a first Qualified Candidate and, if applicable, a second Qualified Candidate. Each Designation Notice must be signed by the person then serving as representative of the Sellers pursuant to Section 12(h) of the Contribution Agreement, or failing such person’s willingness or ability to serve, another person selected by the holders of a majority of the issued Common Units then Beneficially Owned by members of the ▇▇▇▇▇▇▇ Family (such person, the “Representative”) and each Qualified Candidate designated therein. In the Designation Notice, the signatories thereto must certify the following, as applicable:
(a) Each Qualified Candidate shall (i) represent and warrant that such candidate satisfies the standards set forth in the definition of Qualified Candidate and (ii) agree that (1) such candidate’s term is only for so long as such standards continue to be satisfied and the members of the ▇▇▇▇▇▇▇ Family Beneficially Own the required percentage of outstanding shares Common Units and (2) if requested by a majority of Company Common Stock on a fully diluted basis by Parent or the Board (exclusive of any of its direct or indirect Subsidiaries pursuant Qualified Candidates), such candidate shall promptly tender such candidate’s resignation to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed such representation and warranty is or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors becomes inaccurate or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provision. At such time, the Company shall also, upon the request of Parent, use its reasonable efforts to cause the Persons designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreementterm has expired.
(b) The Company Representative shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act represent and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) warrant: (i) any amendment or termination of this Agreement by that such person is the Companyduly acting Representative, (ii) any extension to the Representative’s knowledge, all of time for performance of any obligation or action hereunder by Parent or Merger Sub, the information contained in the relevant Designation Notice is accurate and (iii) the number of Common Units Beneficially Owned by each member of the ▇▇▇▇▇▇▇ Family, as well as the manner/chain of title by which such ownership exists, and shall agree to provide the Board with any waiver or exercise evidence thereof reasonably requested by at least a majority of the Directors (exclusive of any Qualified Candidates).
Section 2.3 After the Initial Period, in the event that two Qualified Candidates are Directors and either the members of the Company's rights, benefits ▇▇▇▇▇▇▇ Family cease to Beneficially Own at least 35% of the then outstanding Common Units or remedies under this Agreement, the Unitholders (or (ivtheir permitted assignees) approval are not then Affiliates of any other action member of the ▇▇▇▇▇▇▇ Family, the term of the second Qualified Candidate shall automatically expire. After the Initial Period, in the event that one or two Qualified Candidates are Directors and either the members of the ▇▇▇▇▇▇▇ Family cease to Beneficially Own at least 10% of the then outstanding Common Units or the Unitholders (or their permitted assignees) are not then Affiliates of any member of the ▇▇▇▇▇▇▇ Family, the term of all such Qualified Candidates shall automatically expire. In addition, each Qualified Candidate’s term shall expire promptly after such candidate no longer satisfies the standards set forth in the definition of Qualified Candidate.
Section 2.4 The Partnership, the Company and the GP Stockholder each agree to cause any Qualified Candidate properly designated by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect Unitholders pursuant to the transactions contemplated herebyterms of this Agreement to be appointed as a Director for the term specified herein.
Appears in 1 contract
Directors. (a) Promptly upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of any Shares by the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries Purchaser pursuant to the OfferOffer and from time to time thereafter, Parent shall be entitled to elect or designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Company Board of Directors such as is equal to the product of the total number of directors on the Company Board of Directors (giving effect to the directors elected or designated by Parent pursuant to this Section 1.3) multiplied by the percentage that the percentage aggregate number of its designees on Shares beneficially owned by the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Purchaser, Parent and each any of its direct or indirect Subsidiariestheir affiliates bears to the total number of Shares then outstanding (on a fully-diluted basis). In furtherance thereof, the The Company shall, upon request of Merger SubParent’s request, use its reasonable best efforts to either promptly to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Company Board of Directors Directors, or use its reasonable efforts to obtain promptly secure the resignation resignations of such number of its current directors incumbent directors, or both, as is necessary to give effect enable Parent’s designees to be so elected or designated to the foregoing provisionCompany’s Board of Directors, and shall take all actions necessary to cause Parent’s designees to be so elected or designated at such time. At such time, the Company shall alsoshall, upon the request of Parent’s request, use its reasonable efforts to also cause the Persons persons elected or designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is on the Company's Company Board of Directors of each committee of the Company's Company Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are directors of the Company on the date of The Company’s obligations under this Agreement and who are not officers of the Company (the "Independent Directors"); provided, however, that (x) notwithstanding the foregoing, in no event shall the requirement to have at least two Independent Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors Section 1.3 shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant subject to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder thereunder. The Company shall promptly take all actions required pursuant to such Section 14(f) and Rule 14f-1 in order to fulfill its obligations under this Section 2.3(a)1.3, including including, but not limited to, mailing to stockholders (together with the Schedule 14D-9) such information as is required by such Section 14(f) and Rule 14f-1 (which to enable Parent’s designees to be elected or designated to the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunderDirectors. Parent or Merger Sub the Purchaser shall supply to the Company in writing, writing and be solely responsible for, any for the information and consents with respect to either of them and their nominees, officers, directors and Affiliates affiliates to the extent required by such Section 14(f) and Rule 14f-1 as is necessary 14f-1. Notwithstanding anything contained in connection with this Section 1.3(a), to the appointment contrary, Parent and Purchaser acknowledge and agree that its designations or election of any of Parent's designees under elections pursuant to this Section 2.3(a). The provisions of Section 2.3(a1.3(a) are in addition to and shall not limit any rights that Merger Subcause the Company to violate its Certificate of Incorporation, Parent Bylaws or any applicable Law, including without limitation, the rules and regulations of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law the Nasdaq National Market with respect to the election independence of directors or otherwise.
(cb) Following the election or appointment of Parent's ’s designees pursuant to Section 2.3(a)1.3(a) and until the Effective Time, the approval by affirmative vote or written consent of all a majority of the Independent Directors directors of the Company then in office (orwho were not designated or appointed by Parent and are not officers, if there shall be only one Independent Director then in office, the Independent Director) directors or employees of Parent or its Affiliates shall be required to authorize (and such authorization shall constitute the authorization of the Company's Company Board of Directors, Directors and no other action on the part of the Company, including any action by any committee thereof or any other director of the Company, shall, unless otherwise required by law, shall be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any amendment to this Agreement, (iii) any extension of time for performance of any obligation or action hereunder by Parent or Merger SubPurchaser, (iii) any waiver or exercise of compliance with any of the agreements or conditions contained herein that are for the benefit of the Company's rights, benefits (iv) any exercise of the Company’s rights or remedies under this Agreement, (v) any action seeking to enforce any obligation of Parent or Purchaser under this Agreement or (ivvi) approval of any other action by the Company which could with respect to this Agreement, or any transactions contemplated hereby if such other action would adversely affect the interests affect, any holders of the Stockholders (Shares other than Parent and Merger Sub) with respect to the transactions contemplated herebyor Purchaser.
Appears in 1 contract
Sources: Merger Agreement (OAO Severstal)
Directors. (a) Promptly Effective upon the purchase acceptance for payment of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis by Parent or any of its direct or indirect Subsidiaries pursuant to the Offer, Parent shall be entitled to designate for appointment or election to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next nearest whole number, on the Company's Board of Directors such that equals the product of (i) the total number of directors on the Company's Board of Directors and (ii) the percentage that the percentage number of its designees on shares of Common Stock beneficially owned by Parent bears to the Board shall equal the percentage total number of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the Company shall, upon request of Merger Sub, use its reasonable efforts promptly shall take all action necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so elected or appointed or elected to the Company's BoardBoard of Directors, including, without limitation, increasing the number of directors, and in furtherance thereof, to the extent necessary, increase the size seeking and accepting resignations of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionincumbent directors. At such time, the Company shall also, upon the request of Parent, will also use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (number of members, rounded up to the next nearest whole number, on (i) as is on the Company's Board of Directors of each committee of the Company's Board of Directors. Notwithstanding the foregoing, until the Effective Time, the Board of Directors of the Company shall have at least two directors who are (other than the Independent Committee) and (ii) each board of directors of the Company on the date of this Agreement and who are not officers each subsidiary of the Company (and each committee thereof) that represents the "Independent Directors"); provided, however, that (x) notwithstanding same percentage as such individuals represent on the foregoing, in no event shall the requirement to have at least two Independent Board of Directors result in Parent's designees constituting less than a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified Person"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent▇▇▇▇▇▇'s designees to the Company's Board of Directors shall be subject to compliance with Section 14(f) of the Exchange 1934 Act and Rule 14f-1 promulgated thereunder. The Company shall promptly take all actions, and shall include in the Schedule 14D-9 such information with respect to the Company and its officers and directors, as Section 14(f) and Rule 14f-1 require in order to fulfill its obligations under this Section. Parent or Merger Sub shall supply to the Company in writing, writing and be solely responsible for, for any information with respect to either of them itself and their its nominees, officers, directors and Affiliates affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise14f-1.
(c) Following During the election term of this Agreement, Parent will, and will cause all of its subsidiaries to, take all actions necessary to permit the Independent Committee to continue in existence without diminution of its powers or appointment duties and its members to consist solely of Parent's designees pursuant to Section 2.3(a)the members thereof on the date hereof, or any successors selected (with the approval by affirmative vote or written consent of all a majority of the members of the Independent Committee) by the Board of Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of DirectorsCompany who are not otherwise employed by Parent or its affiliates. Any amendment, and no other action on the part of the Company, including any action by any committee thereof waiver or any other director of the Company, shall, unless otherwise required by law, be required or permitted to authorize) (i) any amendment or termination of this Agreement by the Company, (ii) any extension of time for performance of any obligation or action hereunder by Parent or Merger Sub, (iii) any waiver or exercise of any of the Company's rights, benefits or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect hereunder, and any action taken by the interests Company or its Board of Directors in connection therewith, shall require the concurrence or consent of a majority of the Stockholders (other than Parent and Merger Sub) with respect to members of the transactions contemplated herebyIndependent Committee.
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Directors. (a) So long as this Agreement is in effect, the Company shall not cause or permit the size of its Board of Directors to be expanded to more than five (5) directors. Promptly upon the purchase of and payment for, and as long as Parent directly or indirectly owns, not less than a majority of the issued and outstanding shares of Company Common Stock on a fully diluted basis for Shares by Parent or any of its direct or indirect Subsidiaries Purchaser pursuant to the Offer, if the Minimum Condition has been met, Parent shall shall, upon request, be entitled to designate for appointment or election three (3) directors to the Company's then existing Board of Directors, upon written notice to the Company, such number of directors, rounded up to the next whole number, on the Board of Directors such that the percentage of its designees on the Board shall equal the percentage of the outstanding shares of Company Common Stock owned of record by Parent and each of its direct or indirect Subsidiaries. In furtherance thereof, the The Company shall, upon request of Merger SubPurchaser or Parent, use secure the resignations of such number of its reasonable efforts promptly incumbent directors as is necessary, consistent with the request of Purchaser or Parent, to enable Parent's designees to be so elected to the Company's Board of Directors, and shall take all actions necessary to cause Parent's designees (and any replacement designees in the event that any designee shall no longer be on the Board of Directors) to be so appointed elected or elected to the Company's Board, and in furtherance thereof, to the extent necessary, increase the size of the Board of Directors or use its reasonable efforts to obtain the resignation of such number of its current directors as is necessary to give effect to the foregoing provisionappointed. At such timetimes, the Company shall also, upon the request of Parent, will use its reasonable best efforts to cause the Persons individuals designated by Parent to constitute at least the same percentage (rounded up to the next whole number) as is such individuals represent on the Company's Board of Directors of on each committee of the Company's Board of DirectorsBoard. Notwithstanding the foregoing, until the Effective Time, the Company shall retain as members of its Board of Directors of the Company shall have at least two (2) directors who are directors of the Company on the date of this Agreement and who are not officers of the Company hereof (the "Independent Continuing Directors"); provided, however, that (x) notwithstanding upon and after satisfaction of the foregoingMinimum Condition and subsequent to the purchase of and payment for Shares pursuant to the Offer, in no event Parent shall the requirement to always have its designees represent at least two Independent Directors result in a majority
(b) From and after the time, if any, that Parent's designees constituting less than constitute a majority of the Company's Board of Directors unless Parent shall have failed to designate a sufficient number of Persons to constitute at least a majority and (y) if the number of Independent Directors shall be reduced below two for any reason whatsoever (or if immediately following Consummation of the Offer there are not at least two then-existing directors of the Company who (1) are Qualified Persons (as defined below) and (2) are willing to serve as Independent Directors), then the number of Independent Directors required hereunder shall be one, unless the remaining Independent Director is able to identify a person, who is not an officer or Affiliate of the Company, Parent or any of their respective Subsidiaries (any such person being referred to herein as a "Qualified PersonAppointment Date"), willing to serve as an Independent Director, in which case such remaining Independent Director shall be entitled to designate any such Qualified Person or Persons to fill such vacancy, and such designated Qualified Person shall be deemed to be an Independent Director for purposes of this Agreement, or if no Independent Directors then remain, the other directors shall be required to designate two Qualified Persons to fill such vacancies, and such persons shall be deemed to be Independent Directors for purposes of this Agreement.
(b) The Company shall promptly take all actions required pursuant to Section 14(f) unanimous vote of the Exchange Act and Rule 14f-1 promulgated thereunder in order to fulfill its obligations under Section 2.3(a), including mailing to stockholders the information required by such Section 14(f) and Rule 14f-1 (which the Company shall mail together with the Schedule 14D-9 if it receives from Parent and Merger Sub the information below on a basis timely to permit such mailing) as is necessary to fulfill the Company's obligations under Section 2.3(a). The Company's obligations to appoint Parent's designees to the Company's entire Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder. Parent or Merger Sub shall supply the Company in writing, and be solely responsible for, any information with respect to either of them and their nominees, officers, directors and Affiliates required by such Section 14(f) and Rule 14f-1 as is necessary in connection with the appointment or election of any of Parent's designees under Section 2.3(a). The provisions of Section 2.3(a) are in addition to and shall not limit any rights that Merger Sub, Parent or any of their Affiliates may have as a holder or beneficial owner of shares of Company Common Stock as a matter of law with respect to the election of directors or otherwise.
(c) Following the election or appointment of Parent's designees pursuant to Section 2.3(a), the approval by affirmative vote or written consent of all of the Independent Directors then in office (or, if there shall be only one Independent Director then in office, the Independent Director) shall be required to authorize (and such authorization shall constitute the authorization of the Company's Board of Directors, and no other action on the part of the Company, including any action by any committee thereof or any other director of the CompanyContinuing Directors, shall, unless otherwise is required by law, be required or permitted to authorize) for the Company to: (i) any amendment amend or termination of terminate this Agreement by the CompanyAgreement, (ii) any extension of extend the time for performance of any obligation of the obligations or action hereunder by other acts of Parent or Merger SubPurchaser hereunder except as otherwise specifically permitted herein, or (iii) waive any waiver condition of the Company's obligations hereunder or exercise of any of the Company's rights, benefits rights or remedies under this Agreement, or (iv) approval of any other action by the Company which could adversely affect the interests of the Stockholders (other than Parent and Merger Sub) with respect to the transactions contemplated herebyhereunder.
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Sources: Merger Agreement (Penobscot Shoe Co)