Seats on Board of Directors. (a) So long as Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount, but having less than a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination of, (x) if Reuters Entities beneficially own less than 10% of the Total Voting Power of Instinet, one director and (y) if Reuters Entities beneficially own 10% or more of the Total Voting Power of Instinet (the "Original Nominee Threshold"), such number of directors of Instinet such that after such election (assuming all such Reuters designees are elected to the Board of Directors), the number of Reuters Directors will be equal to the product of (1) the Total Voting Power of Instinet beneficially owned by the Reuters Entities multiplied by (2) the total number of members on the Board of Directors, rounded to the nearest whole number; provided that in no event shall the number of Reuters Directors nominated pursuant to this provision constitute (i) 50% or more of the members of the Board of Directors or (ii) less than one member of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors based on a lesser percentage of the Total Voting Power of Instinet (the "Lower Board Threshold") than the Original Nominee Threshold, Reuters shall have the right to designate, and Instinet shall cause the nomination of, an equal number of members of the Board of Directors as such other Person (subject to the limitations and conditions imposed on such other Person's right, applied consistently to Reuters) so long as it beneficially owns shares of Common Stock representing an amount of capital stock greater than or equal to the Lower Board Threshold, provided that Reuters shall not be entitled to appoint additional directors pursuant to this provision solely because of the appointment of Additional Island Directors (as defined in the Island Stockholders Agreement) pursuant to Section 2.2(a)(ii) of the Island Stockholders Agreement. So long as Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination of, such number of directors of Instinet as Reuters shall elect to designate, subject to the provisions of the Island Stockholders Agreement, the certificate of incorporation and bylaws of Instinet and any requirements of applicable law or requirements of any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. If a vacancy occurs or exists on the Board of Directors at any time, including but not limited to a vacancy because of the death, disability, retirement, resignation or removal of any director for cause or otherwise, and the vacant position was held by a Reuters Director, and Reuters is otherwise entitled pursuant to this Section 2.3(a) to designate an individual to fill such directorship, then Reuters shall have the sole right to designate an individual to fill such vacancy, and, subject to the fiduciary duties of directors, the Board of Directors shall elect such nominee to fill such vacancy. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount (or, if applicable, the Lower Board Threshold), but having less than a majority of the Total Voting Power of Instinet and Reuters has not designated the full number of directors to which it is entitled pursuant to this Section 2.3(a), (xx) to the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from its stockholders proxies in order to effectuate, if necessary, any amendment of its certificate of incorporation and/or bylaws to ensure that there are a sufficient number of authorized directors permitted under its certificate of incorporation and bylaws to allow Reuters to designate the full number of directors to which it is entitled pursuant to this Section 2.3(a) and (yy) Reuters may propose that the Board of Directors be expanded to provide for the addition of up to the maximum incremental number of directors designated by Reuters to which Reuters is entitled pursuant to this Section 2.3(a), taking into account such expansion of the Board of Directors, based on the Total Voting Power of Instinet beneficially owned by the Reuters Entities at such time, and, subject to the provisions of the certificate of incorporation and bylaws of Instinet, the Board of Directors shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, Reuters may propose that the Board of Directors be expanded to provide for the addition of such number of directors designated by Reuters as Reuters shall elect, and the Board of Directors, subject to the provisions of the certificate of incorporation and bylaws of Instinet, shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. To the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from the stockholders of Instinet eligible to vote for the election of directors proxies in favor of the nominees designated by Reuters in accordance with this Section 2.3(a). (b) If at any time the total number of directors of Instinet is increased or decreased, the number of directors that Reuters shall have the right to designate pursuant to Section 2.3(a) above, shall as promptly as practicable be increased or decreased so that the adjusted ratio of Reuters Directors to total directors is not less than the ratio of Reuters Directors (determined immediately prior to such increase in accordance with the provisions of Section 2.3(a)) to the total number of directors of Instinet immediately prior to such increase or decrease, as the case may be (the "Ratio"). In such event, Reuters and Instinet shall take such steps consistent with the provisions of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors in relation to the Ratio as rapidly as reasonably possible. (c) If, upon the occurrence of the Trigger Date and from time to time thereafter upon any reduction in the percentage of the Total Voting Power of Instinet represented by shares of Instinet stock beneficially owned by the Reuters Entities, the number of Affiliated Reuters Directors exceeds the number of directors which Reuters is then entitled to designate pursuant to Section 2.3(a), taking into account such reduction, Reuters shall cause that number of Affiliated Reuters Directors that are in excess of such permitted number of designees to immediately offer to tender to the Board of Directors his, her or their resignations, provided that Reuters may elect from which Affiliated Reuters Directors to request such resignation(s). If such resignation(s) is requested by vote of a majority of the members of the Board of Directors (other than Affiliated Reuters Directors), each Affiliated Reuters Director who offered such resignation and whose resignation is so requested shall immediately tender such resignation as provided in the certificate of incorporation and bylaws of Instinet. In the event that any such Affiliated Reuters Director fails to deliver his or her resignation as required pursuant to this Section 2.3(c), Instinet shall be entitled to take all necessary and appropriate action to cause such Affiliated Reuters Director to be removed and Reuters shall cooperate fully therewith. (d) At the request of Reuters, Instinet shall (x) use its best efforts to cause a special meeting of stockholders to be held proposing the removal of any Reuters Director provided, that if in the reasonable good faith determination by the Board of Directors it is materially detrimental to do so, then Instinet may delay calling such special meeting; provided that Instinet will cause such meeting to be held within 135 days of such request by Reuters and (y) to the extent permitted by law, use its commercially reasonable efforts to solicit from stockholders of Instinet eligible to vote for the election of directors proxies to remove such specified Reuters Directors. (e) For so long as the Reuters Entities beneficially own shares of Instinet's stock having at least 25% of the Total Voting Power of Instinet, subject to the fiduciary duties of the directors, Reuters Directors shall be nominated to serve on each committee of the Board of Directors (other than any committee (i) whose membership is specified in the Island Stockholders Agreement (in which case Reuters Directors shall be entitled to be nominated to serve on such committee to the extent provided in the Island Stockholders Agreement) or (ii) required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent a sufficient number of Reuters Directors do not qualify as independent directors; provided that such lesser number of Reuters Directors that do qualify as independent directors shall be appointed to such committee; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement) so that after such appointment(s), the ratio of Reuters Directors who are members of such committee to the total number of members of such committee is not less than the Ratio, provided, however, that for so long as the Reuters Entities are entitled to designate at least two directors, at least one Reuters Director shall be nominated to serve on each committee of the Board of Directors (other than any committee required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent that no Reuters Director qualifies as an independent director; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement). Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors to serve on any committee(s) of the Board of Directors at a percentage less than 25% of the Total Voting Power of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an equal number of Reuters Directors to serve on such committee(s) as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as the Lower Percentage. For so long as (i) Reuters beneficially owns shares of Instinet's stock having at least 10% but less than the Lower Percentage of the Total Voting Power of Instinet and (ii) there is at least one Reuters Director, any such Reuters Director shall be permitted to observe the proceedings of (but shall not be a member of) any committee of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to appoint a director or directors to observe the proceedings of any committee(s) of the Board of Directors at a percentage less than 10% of the Total Voting Power of Instinet, Reuters shall have the right to appoint an equal number of Reuters Directors to observe such proceedings as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as such lesser percentage. (f) Nothing in this Section 2.3 shall limit or restrict the Reuters Entities from voting or otherwise exercising their rights with respect to the shares of capital stock of Instinet held by them, including acting by written consent, to the fullest extent permitted under Instinet's certificate of incorporation and bylaws and Delaware law.
Appears in 2 contracts
Samples: Corporate Agreement (Instinet Group Inc), Corporate Agreement (Instinet Group Inc)
Seats on Board of Directors. (a) So long as Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount, but having less than a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination of, (x) if Reuters Entities beneficially own less than 10% of the Total Voting Power of Instinet, one director and (y) if Reuters Entities beneficially own 10% or more of the Total Voting Power of Instinet (the "Original Nominee Threshold"), such number of directors of Instinet such that after such election (assuming all such Reuters designees are elected to the Board of Directors), the number of Reuters Directors will be equal to the product of (1) the Total Voting Power of Instinet beneficially owned by the Reuters Entities multiplied by (2) the total number of members on the Board of Directors, rounded to the nearest whole number; provided that in no event shall the number of Reuters Directors nominated pursuant to this provision constitute (i) 50% or more of the members of the Board of Directors or (ii) less than one member of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors based on a lesser percentage of the Total Voting Power of Instinet (the "Lower Board Threshold") than the Original Nominee Threshold, Reuters shall have the right to designate, and Instinet shall cause the nomination of, an equal number of members of the Board of Directors as such other Person (subject to the limitations and conditions imposed on such other Person's right, applied consistently to Reuters) so long as it beneficially owns shares of Common Stock representing an amount of capital stock greater than or equal to the Lower Board Threshold, provided that Reuters shall not be entitled to appoint additional directors pursuant to this provision solely because of the appointment of Additional Island Directors (as defined in the Island Stockholders Agreement) pursuant to Section 2.2(a)(ii) of the Island Stockholders Agreement. So long as Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination of, such number of directors of Instinet as Reuters shall elect to designate, subject to the provisions of the Island Stockholders Agreement, the certificate of incorporation and bylaws of Instinet and any requirements of applicable law or requirements of any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. If a vacancy occurs or exists on the Board of Directors at any time, including but not limited to a vacancy because of the death, disability, retirement, resignation or removal of any director for cause or otherwise, and the vacant position was held by a Reuters Director, and Reuters is otherwise entitled pursuant to this Section 2.3(a) to designate an individual to fill such directorship, then Reuters shall have the sole right to designate an individual to fill such vacancy, and, subject to the fiduciary duties of directors, the Board of Directors shall elect such nominee to fill such vacancy. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount (or, if applicable, the Lower Board Threshold), but having less than a majority of the Total Voting Power of Instinet and Reuters has not designated the full number of directors to which it is entitled pursuant to this Section 2.3(a), (xx) to the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from its stockholders proxies in order to effectuate, if necessary, any amendment of its certificate of incorporation and/or bylaws to ensure that there are a sufficient number of authorized directors permitted under its certificate of incorporation and bylaws to allow Reuters to designate the full number of directors to which it is entitled pursuant to this Section 2.3(a) and (yy) Reuters may propose that the Board of Directors be expanded to provide for the addition of up to the maximum incremental number of directors designated by Reuters to which Reuters is entitled pursuant to this Section 2.3(a), taking into account such expansion of the Board of Directors, based on the Total Voting Power of Instinet beneficially owned by the Reuters Entities at such time, and, subject to the provisions of the certificate of incorporation and bylaws of Instinet, the Board of Directors shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, Reuters may propose that the Board of Directors be expanded to provide for the addition of such number of directors designated by Reuters as Reuters shall elect, and the Board of Directors, subject to the provisions of the certificate of incorporation and bylaws of Instinet, shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. To the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from the stockholders of Instinet eligible to vote for the election of directors proxies in favor of the nominees designated by Reuters the Board of Directors in accordance with this Section 2.3(a).
(b) If at any time the total number of directors of Instinet is increased or decreased, the number of directors that Reuters shall have the right to designate pursuant to Section 2.3(a) above, shall as promptly as practicable be increased or decreased so that the adjusted ratio of Reuters Directors to total directors is not less than the ratio of Reuters Directors (determined immediately prior to such increase in accordance with the provisions of Section 2.3(a)) to the total number of directors of Instinet immediately prior to such increase or decrease, as the case may be (the "Ratio"). In such event, Reuters and Instinet shall take such steps consistent with the provisions of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors in relation to the Ratio as rapidly as reasonably possible.
(c) If, upon the occurrence of the Trigger Date and from time to time thereafter upon any reduction in the percentage of the Total Voting Power of Instinet represented by shares of Instinet stock beneficially owned by the Reuters Entities, the number of Affiliated Reuters Directors exceeds the number of directors which Reuters is then entitled to designate pursuant to Section 2.3(a), taking into account such reduction, Reuters shall cause that number of Affiliated Reuters Directors that are in excess of such permitted number of designees to immediately offer to tender to the Board of Directors his, her or their resignations, provided that Reuters may elect from which Affiliated Reuters Directors to request such resignation(s). If such resignation(s) is requested by vote of a majority of the members of the Board of Directors (other than Affiliated Reuters Directors), each Affiliated Reuters Director who offered such resignation and whose resignation is so requested shall immediately tender such resignation as provided in the certificate of incorporation and bylaws of Instinet. In the event that any such Affiliated Reuters Director fails to deliver his or her resignation as required pursuant to this Section 2.3(c), Instinet shall be entitled to take all necessary and appropriate action to cause such Affiliated Reuters Director to be removed and Reuters shall cooperate fully therewith.
(d) At the request of Reuters, Instinet shall (x) use its best efforts to cause a special meeting of stockholders to be held proposing the removal of any Reuters Director provided, that if in the reasonable good faith determination by the Board of Directors it is materially detrimental to do so, then Instinet may delay calling such special meeting; provided that Instinet will cause such meeting to be held within 135 days of such request by Reuters and (y) to the extent permitted by law, use its commercially reasonable best efforts to solicit from stockholders of Instinet eligible to vote for the election of directors proxies to remove such specified Reuters Directors.
(ed) For so long as the Reuters Entities beneficially own shares of Instinet's stock having at least 25% of the Total Voting Power of Instinet, subject to the fiduciary duties of the directors, Reuters Directors shall be nominated to serve on each committee of the Board of Directors (other than any committee (i) whose membership is specified in the Island Stockholders Agreement (in which case Reuters Directors shall be entitled to be nominated to serve on such committee to the extent provided in the Island Stockholders Agreement) or (ii) required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted requirement to consist solely of independent directors but only to the extent a sufficient number of Reuters Directors do not qualify as independent directors; provided that such lesser number of Reuters Directors that do qualify as independent directors shall be appointed to such committee; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement) so that after such appointment(s), the ratio of Reuters Directors who are members of such committee to the total number of members of such committee is not less than the Ratio, provided, however, that for so long as the Reuters Entities are entitled to designate at least two directors, at least one Reuters Director shall be nominated to serve on each committee of the Board of Directors (other than any committee required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent that no Reuters Director qualifies as an independent director; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement). Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors to serve on any committee(s) of the Board of Directors at a percentage less than 25% of the Total Voting Power of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an equal number of Reuters Reuter Directors to serve on such committee(s) as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as the Lower Percentage. For so long as (i) Reuters beneficially owns shares of Instinet's stock having at least 10% but less than the Lower Percentage of the Total Voting Power of Instinet and (ii) there is at least one Reuters Director, any such Reuters Director shall be permitted to observe the proceedings of (but shall not be a member of) any committee of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to appoint a director or directors to observe the proceedings of any committee(s) of the Board of Directors at a percentage less than 10% of the Total Voting Power of Instinet, Reuters shall have the right to appoint an equal number of Reuters Directors to observe such 10 10 proceedings as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as such lesser percentage.
(f) Nothing in this Section 2.3 shall limit or restrict the Reuters Entities from voting or otherwise exercising their rights with respect to the shares of capital stock of Instinet held by them, including acting by written consent, to the fullest extent permitted under Instinet's certificate of incorporation and bylaws and Delaware law.
Appears in 1 contract
Seats on Board of Directors. (a) So long as Reuters Entities beneficially own shares The Company shall be governed by a Board of Instinet's stock representing Directors consisting of at least nine members. The number of directors may not be decreased.
(b) Subject to the Minimum Designee Amountother provisions of this Agreement, but having less than a majority of the Total Voting Power of Instinet, in connection with at any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination ofCompany, (xi) if so long as Reuters Entities beneficially own less than 10owns shares of the Company's stock having at least 40% of the Total Voting Power of Instinet, one director and (y) if Reuters Entities beneficially own 10% or more of the Total Voting Power of Instinet (the "Original Nominee Threshold"), such number of directors of Instinet such that after such election (assuming all such Reuters designees are elected to the Board of Directors), the number of Reuters Directors will be equal to the product of (1) the Total Voting Power of Instinet beneficially owned by the Reuters Entities multiplied by (2) the total number of members on the Board of Directors, rounded to the nearest whole number; provided that in no event shall the number of Reuters Directors nominated pursuant to this provision constitute (i) 50% or more of the members of the Board of Directors or (ii) less than one member of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors based on a lesser percentage of the Total Voting Power of Instinet (the "Lower Board Threshold") than the Original Nominee ThresholdCompany, Reuters shall have the right to designate, and Instinet shall cause the nomination of, an equal number of members nominate three directors of the Board of Directors as such other Person Company, (subject to the limitations and conditions imposed on such other Person's right, applied consistently to Reutersii) so long as it beneficially Reuters owns shares of Common Stock representing an amount of capital stock greater than or equal to the Lower Board Threshold, provided that Reuters shall not be entitled to appoint additional directors pursuant to this provision solely because of the appointment of Additional Island Directors (as defined in the Island Stockholders Agreement) pursuant to Section 2.2(a)(ii) of the Island Stockholders Agreement. So long as Reuters Entities beneficially own shares of InstinetCompany's stock having a majority at least 25% but less than 40% of the Total Voting Power of Instinetthe Company, in connection with any election of directors of Instinet Reuters shall have the right to designatenominate two directors of the Company and (iii) so long as Reuters owns shares of the Company's stock having at least 10% but less than 25% of the Total Voting Power of the Company, and Instinet Reuters shall cause have the right to nominate one director of the Company (each director nominated by Reuters pursuant hereto, a "Reuters Director"). Notwithstanding the foregoing, prior to the nomination ofof any person as a Reuters Director, such number person shall be approved by the Chief Executive Officer of directors of Instinet as Reuters shall elect to designate, subject to and by the provisions Chief Executive Officer of the Island Stockholders Agreement, the certificate of incorporation and bylaws of Instinet and any requirements of applicable law or requirements of any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quotedCompany. If a vacancy occurs or exists on the Board of Directors at any time, including but not limited to a vacancy because of the death, disability, retirement, resignation or removal of any director for cause or otherwise, and the vacant position was held by a Reuters Director, and Reuters is otherwise entitled pursuant to this Section 2.3(a) to designate an individual to fill such directorship, then Reuters (in accordance with the previous sentence) shall have the sole right to designate nominate an individual to fill such vacancy, and, subject . The Parties agree to take all necessary action to cause the fiduciary duties of directors, the Board of Directors shall elect such nominee to fill such vacancy. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount (or, if applicable, the Lower Board Threshold), but having less than a majority of the Total Voting Power of Instinet and Reuters has not designated the full number of directors to which it is entitled individuals nominated pursuant to this Section 2.3(a), (xx) 4.3 to the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from its stockholders proxies in order to effectuate, if necessary, any amendment of its certificate of incorporation and/or bylaws to ensure that there are a sufficient number of authorized directors permitted under its certificate of incorporation and bylaws to allow Reuters to designate the full number of directors to which it is entitled pursuant to this Section 2.3(a) and (yy) Reuters may propose that the Board of Directors be expanded to provide for the addition of up to the maximum incremental number of directors designated by Reuters to which Reuters is entitled pursuant to this Section 2.3(a), taking into account such expansion of the Board of Directors, based on the Total Voting Power of Instinet beneficially owned by the Reuters Entities at such time, and, subject to the provisions of the certificate of incorporation and bylaws of Instinet, the Board of Directors shall so expand the size become members of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, Reuters may propose that the Board of Directors be expanded to provide for the addition of such number of directors designated by Reuters as Reuters shall elect, and the Board of Directors, subject to the provisions of the certificate of incorporation and bylaws of Instinet, shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. To the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from the stockholders of Instinet eligible to vote for the election of directors proxies in favor of the nominees designated by Reuters in accordance with this Section 2.3(a)Company.
(bc) If at any time the total number of directors of Instinet the Company is increased or decreasedabove nine, the number of directors that Reuters Directors shall have the right to designate pursuant to Section 2.3(a) above, shall as promptly as practicable be increased or decreased so that the adjusted ratio of Reuters Directors to total directors is not less than the ratio of Reuters Directors (determined immediately prior to such increase in accordance with the provisions of Section 2.3(a3.5(b)) to the total number of directors of Instinet immediately prior to such increase or decrease, as the case may be (the "Ratio"). In such event, Reuters and Instinet shall take such steps consistent with the provisions of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors in relation to the Ratio as rapidly as reasonably possible.
(c) If, upon the occurrence of the Trigger Date and from time to time thereafter upon any reduction in the percentage of the Total Voting Power of Instinet represented by shares of Instinet stock beneficially owned by the Reuters Entities, the number of Affiliated Reuters Directors exceeds the number of directors which Reuters is then entitled to designate pursuant to Section 2.3(a), taking into account such reduction, Reuters shall cause that number of Affiliated Reuters Directors that are in excess of such permitted number of designees to immediately offer to tender to the Board of Directors his, her or their resignations, provided that Reuters may elect from which Affiliated Reuters Directors to request such resignation(s). If such resignation(s) is requested by vote of a majority of the members of the Board of Directors (other than Affiliated Reuters Directors), each Affiliated Reuters Director who offered such resignation and whose resignation is so requested shall immediately tender such resignation as provided in the certificate of incorporation and bylaws of Instinet. In the event that any such Affiliated Reuters Director fails to deliver his or her resignation as required pursuant to this Section 2.3(c), Instinet shall be entitled to take all necessary and appropriate action to cause such Affiliated Reuters Director to be removed and Reuters shall cooperate fully therewith.
(d) At the request of Reuters, Instinet shall (x) use its best efforts to cause a special meeting of stockholders to be held proposing the removal of any Reuters Director provided, that if in the reasonable good faith determination by the Board of Directors it is materially detrimental to do so, then Instinet may delay calling such special meeting; provided that Instinet will cause such meeting to be held within 135 days of such request by Reuters and (y) to the extent permitted by law, use its commercially reasonable efforts to solicit from stockholders of Instinet eligible to vote for the election of directors proxies to remove such specified Reuters Directors.
(e) For so long as the Reuters Entities beneficially own shares of Instinet's stock having at least 25% of the Total Voting Power of Instinet, subject to the fiduciary duties of the directors, Reuters Directors shall be nominated to serve on each committee of the Board of Directors (other than any committee (i) whose membership is specified in the Island Stockholders Agreement (in which case Reuters Directors shall be entitled to be nominated to serve on such committee to the extent provided in the Island Stockholders Agreement) or (ii) required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent a sufficient number of Reuters Directors do not qualify as independent directors; provided that such lesser number of Reuters Directors that do qualify as independent directors shall be appointed to such committee; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement) so that after such appointment(s), the ratio of Reuters Directors who are members of such committee to the total number of members of such committee is not less than the Ratio, provided, however, that for so long as the Reuters Entities are entitled to designate at least two directors, at least one Reuters Director shall be nominated to serve on each committee of the Board of Directors (other than any committee required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent that no Reuters Director qualifies as an independent director; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement). Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors to serve on any committee(s) of the Board of Directors at a percentage less than 25% of the Total Voting Power of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an equal number of Reuters Directors to serve on such committee(s) as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as the Lower Percentage. For so long as (i) Reuters beneficially owns shares of Instinet's stock having at least 10% but less than the Lower Percentage of the Total Voting Power of Instinet and (ii) there is at least one Reuters Director, any such Reuters Director shall be permitted to observe the proceedings of (but shall not be a member of) any committee of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to appoint a director or directors to observe the proceedings of any committee(s) of the Board of Directors at a percentage less than 10% of the Total Voting Power of Instinet, Reuters shall have the right to appoint an equal number of Reuters Directors to observe such proceedings as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as such lesser percentage.
(f) Nothing in this Section 2.3 shall limit or restrict the Reuters Entities from voting or otherwise exercising their rights with respect to the shares of capital stock of Instinet held by them, including acting by written consent, to the fullest extent permitted under Instinet's certificate of incorporation and bylaws and Delaware law.
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Seats on Board of Directors. (a) So long as Reuters Entities beneficially own shares of Instinet's stock representing having at least 10% (the Minimum Designee Amount, "Nominee Threshold") but having less than a majority 50% of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, designate and Instinet shall cause the nomination of, (x) if Reuters Entities beneficially own less than 10% of the Total Voting Power of Instinet, one director and (y) if Reuters Entities beneficially own 10% or more of the Total Voting Power of Instinet (the "Original Nominee Threshold"), such number of directors of Instinet such that after such election (assuming all such Reuters designees are elected to the Board of Directors), the number of Reuters Directors will be equal to the product of (1) the Total Voting Power of Instinet beneficially owned by the Reuters Entities multiplied by (2) the total number of members on the Board of Directors, rounded to the nearest whole number; provided that in no event shall the number of Reuters Directors nominated pursuant to this provision constitute (i) 50% or more of the members of the Board of Directors or (ii) less than one member of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors based on a lesser percentage of the Total Voting Power of Instinet (the "Lower Board Threshold") than the Original Nominee Threshold, Reuters shall have the right to designate, and Instinet shall cause the nomination of, an equal number of members of the Board of Directors as such other Person (subject to the limitations and conditions imposed on such other Person's right, applied consistently to Reuters) so long as it beneficially owns shares of Common Stock representing an amount of capital stock greater than or equal to the Lower Board Threshold, provided that Reuters shall not be entitled to appoint additional directors pursuant to this provision solely because of the appointment of Additional Island Directors (as defined in the Island Stockholders Agreement) pursuant to Section 2.2(a)(ii) of the Island Stockholders Agreement. So long as Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination of, such number of directors of Instinet as Reuters shall elect to designate, subject to the provisions of the Island Stockholders Agreement, the certificate of incorporation and bylaws of Instinet and any requirements of applicable law or requirements of any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted. If a vacancy occurs or exists on the Board of Directors at any time, including but not limited to a vacancy because of the death, disability, retirement, resignation or removal of any director for cause or otherwise, and the vacant position was held by a Reuters Director, and Reuters is otherwise entitled pursuant to this Section 2.3(a) to designate an individual to fill such directorship, then Reuters shall have the sole right to designate an individual to fill such vacancy, and, subject to the fiduciary duties of directors, the Board of Directors shall elect such nominee to fill such vacancy. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount (or, if applicable, the Lower Board Threshold), but having less than a majority of the Total Voting Power of Instinet and Reuters has not designated the full number of directors to which it is entitled pursuant to this Section 2.3(a), (xx) to the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from its stockholders proxies in order to effectuate, if necessary, any amendment of its certificate of incorporation and/or bylaws to ensure that there are a sufficient number of authorized directors permitted under its certificate of incorporation and bylaws to allow Reuters to designate the full number of directors to which it is entitled pursuant to this Section 2.3(a) and (yy) Reuters may propose that the Board of Directors be expanded to provide for the addition of up to the maximum incremental number of directors designated by Reuters to which Reuters is entitled pursuant to this Section 2.3(a), taking into account such expansion of the Board of Directors, based on the Total Voting Power of Instinet beneficially owned by the Reuters Entities at such time, and, subject to the provisions of the certificate of incorporation and bylaws of Instinet, the Board of Directors shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, Reuters may propose that the Board of Directors be expanded to provide for the addition of such number of directors designated by Reuters as Reuters shall elect, and the Board of Directors, subject to the provisions of the certificate of incorporation and bylaws of Instinet, shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. To the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from the stockholders of Instinet eligible to vote for the election of directors proxies in favor of the nominees designated by Reuters in accordance with this Section 2.3(a).to
(b) If at any time the total number of directors of Instinet is increased or decreased, the number of directors that Reuters shall have the right to designate pursuant to Section 2.3(a) above, shall as promptly as practicable be increased or decreased so that the adjusted ratio of Reuters Directors to total directors is not less than the ratio of Reuters Directors (determined immediately prior to such increase in accordance with the provisions of Section 2.3(a)) to the total number of directors of Instinet immediately prior to such increase or decrease, as the case may be (the "Ratio"). In such event, Reuters and Instinet shall take such steps consistent with the provisions of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors in relation to the Ratio as rapidly as reasonably possible.
(c) If, upon the occurrence of the Trigger Date and from time to time thereafter upon any reduction in the percentage of the Total Voting Power of Instinet represented by shares of Instinet stock beneficially owned by the Reuters Entities, the number of Affiliated Reuters Directors exceeds the number of directors which Reuters is then entitled to designate pursuant to Section 2.3(a), taking into account such reduction, Reuters shall cause that number of Affiliated Reuters Directors that are in excess of such permitted number of designees to immediately offer to tender to the Board of Directors his, her or their resignations, provided that Reuters may elect from which Affiliated Reuters Directors to request such resignation(s). If such resignation(s) is requested by vote of a majority of the members of the Board of Directors (other than Affiliated Reuters Directors), each Affiliated Reuters Director who offered such resignation and whose resignation is so requested shall immediately tender such resignation as provided in the certificate of incorporation and bylaws of Instinet. In the event that any such Affiliated Reuters Director fails to deliver his or her resignation as required pursuant to this Section 2.3(c), Instinet shall be entitled to take all necessary and appropriate action to cause such Affiliated Reuters Director to be removed and Reuters shall cooperate fully therewith.
(d) At the request of Reuters, Instinet shall (x) use its best efforts to cause a special meeting of stockholders to be held proposing the removal of any Reuters Director provided, that if in the reasonable good faith determination by the Board of Directors it is materially detrimental to do so, then Instinet may delay calling such special meeting; provided that Instinet will cause such meeting to be held within 135 days of such request by Reuters and (y) to the extent permitted by law, use its commercially reasonable best efforts to solicit from stockholders of Instinet eligible to vote for the election of directors proxies to remove such specified Reuters Directors.
(ed) For so long as the Reuters Entities beneficially own shares of Instinet's stock having at least 25% of the Total Voting Power of Instinet, subject to the fiduciary duties of the directors, Reuters Directors shall be nominated to serve on each committee of the Board of Directors (other than any committee (i) whose membership is specified in the Island Stockholders Agreement (in which case Reuters Directors shall be entitled to be nominated to serve on such committee to the extent provided in the Island Stockholders Agreement) or (ii) required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted requirement to consist solely of independent directors but only to the extent a sufficient number of Reuters Directors do not qualify as independent directors; provided that such lesser number of Reuters Directors that do qualify as independent directors shall be appointed to such committee; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement) so that after such appointment(s), the ratio of Reuters Directors who are members of such committee to the total number of members of such committee is not less than the Ratio, provided, however, that for so long as the Reuters Entities are entitled to designate at least two directors, at least one Reuters Director shall be nominated to serve on each committee of the Board of Directors (other than any committee required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent that no Reuters Director qualifies as an independent director; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement). Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors to serve on any committee(s) of the Board of Directors at a percentage less than 25% of the Total Voting Power of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an equal number of Reuters Directors to serve on such committee(s) as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as the Lower Percentage. For so long as (i) Reuters beneficially owns shares of Instinet's stock having at least 10% but less than the Lower Percentage of the Total Voting Power of Instinet and (ii) there is at least one Reuters Director, any such Reuters Director shall be permitted to observe the proceedings of (but shall not be a member of) any committee of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to appoint a director or directors to observe the proceedings of any committee(s) of the Board of Directors at a percentage less than 10% of the Total Voting Power of Instinet, Reuters shall have the right to appoint an equal number of Reuters Directors to observe such proceedings as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as such lesser percentage.
(f) Nothing in this Section 2.3 shall limit or restrict the Reuters Entities from voting or otherwise exercising their rights with respect to the shares of capital stock of Instinet held by them, including acting by written consent, to the fullest extent permitted under Instinet's certificate of incorporation and bylaws and Delaware law.,
Appears in 1 contract
Seats on Board of Directors. (a) So long as Reuters Entities beneficially own shares The Company shall be governed by a Board of Instinet's stock representing Directors consisting of nine members. The number of directors may not be decreased. The number of directors may be increased in accordance with the provisions of Section 4.3(c).
(b) Subject to the other provisions of this Agreement, at least the Minimum Designee Amount, but having less than a majority of the Total Voting Power of Instinet, in connection with any election of directors of Instinet Reuters shall have the right to designate, and Instinet shall cause the nomination ofCompany, (xi) if so long as Reuters Entities beneficially Parties own less than 10shares of the Company's stock having at least 40% of the Total Voting Power of Instinet, one director and (y) if Reuters Entities beneficially own 10% or more of the Total Voting Power of Instinet (the "Original Nominee Threshold"), such number of directors of Instinet such that after such election (assuming all such Reuters designees are elected to the Board of Directors), the number of Reuters Directors will be equal to the product of (1) the Total Voting Power of Instinet beneficially owned by the Reuters Entities multiplied by (2) the total number of members on the Board of Directors, rounded to the nearest whole number; provided that in no event shall the number of Reuters Directors nominated pursuant to this provision constitute (i) 50% or more of the members of the Board of Directors or (ii) less than one member of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors based on a lesser percentage of the Total Voting Power of Instinet (the "Lower Board Threshold") than the Original Nominee ThresholdCompany, Reuters shall have the right to designate, and Instinet shall cause the nomination of, an equal number of members nominate three directors of the Board of Directors as such other Person Company, (subject to the limitations and conditions imposed on such other Person's right, applied consistently to Reutersii) so long as it beneficially owns shares of Common Stock representing an amount of capital stock greater than or equal to the Lower Board Threshold, provided that Reuters shall not be entitled to appoint additional directors pursuant to this provision solely because of the appointment of Additional Island Directors (as defined in the Island Stockholders Agreement) pursuant to Section 2.2(a)(ii) of the Island Stockholders Agreement. So long as Reuters Entities beneficially Parties own shares of Instinetthe Company's stock having a majority at least 25% but less than 40% of the Total Voting Power of Instinetthe Company, in connection with any election of directors of Instinet Reuters shall have the right to designatenominate two directors of the Company and (iii) so long as Reuters Parties own shares of the Company's stock having at least 10% but less than 25% of the Total Voting Power of the Company, and Instinet Reuters shall cause have the right to nominate one director of the Company (each director nominated by Reuters pursuant hereto, a "Reuters Director"). Notwithstanding the foregoing, prior to the nomination ofof any person as a Reuters Director, such number person shall be approved by the Chief Executive Officer of directors of Instinet as Reuters shall elect to designate, subject to and by the provisions Chief Executive Officer of the Island Stockholders Agreement, the certificate of incorporation and bylaws of Instinet and any requirements of applicable law or requirements of any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quotedCompany. If a vacancy occurs or exists on the Board of Directors at any time, including but not limited to a vacancy because of the death, disability, retirement, resignation or removal of any director for cause or otherwise, and the vacant position was held by a Reuters Director, and Reuters is otherwise entitled pursuant to this Section 2.3(a) to designate an individual to fill such directorship, then Reuters (in accordance with the previous sentence) shall have the sole right to designate nominate an individual to fill such vacancy, and, subject . The Parties agree to take all necessary action to cause the fiduciary duties of directors, the Board of Directors shall elect such nominee to fill such vacancy. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock representing at least the Minimum Designee Amount (or, if applicable, the Lower Board Threshold), but having less than a majority of the Total Voting Power of Instinet and Reuters has not designated the full number of directors to which it is entitled individuals nominated pursuant to this Section 2.3(a), (xx) 4.3 to the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from its stockholders proxies in order to effectuate, if necessary, any amendment of its certificate of incorporation and/or bylaws to ensure that there are a sufficient number of authorized directors permitted under its certificate of incorporation and bylaws to allow Reuters to designate the full number of directors to which it is entitled pursuant to this Section 2.3(a) and (yy) Reuters may propose that the Board of Directors be expanded to provide for the addition of up to the maximum incremental number of directors designated by Reuters to which Reuters is entitled pursuant to this Section 2.3(a), taking into account such expansion of the Board of Directors, based on the Total Voting Power of Instinet beneficially owned by the Reuters Entities at such time, and, subject to the provisions of the certificate of incorporation and bylaws of Instinet, the Board of Directors shall so expand the size become members of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. At any time and from time to time when Reuters Entities beneficially own shares of Instinet's stock having a majority of the Total Voting Power of Instinet, Reuters may propose that the Board of Directors be expanded to provide for the addition of such number of directors designated by Reuters as Reuters shall elect, and the Board of Directors, subject to the provisions of the certificate of incorporation and bylaws of Instinet, shall so expand the size of the Board of Directors and elect such additional designees of Reuters to fill such newly created vacancies. To the extent consistent with the provisions of Instinet's certificate of incorporation, any such additional designees shall be elected to the class of directors that has the longest possible term of office as of the time of election. To the extent permitted by law, Instinet shall use its commercially reasonable efforts to solicit from the stockholders of Instinet eligible to vote for the election of directors proxies in favor of the nominees designated by Reuters in accordance with this Section 2.3(a)Company.
(bc) If at any time the total number of directors of Instinet the Company is increased or decreasedabove nine, the number of directors that Reuters Directors shall have the right to designate pursuant to Section 2.3(a) above, shall as promptly as practicable be increased or decreased so that the adjusted ratio of Reuters Directors to total directors is not less than the ratio of Reuters Directors (determined immediately prior to such increase in accordance with the provisions of Section 2.3(a4.3(b)) to the total number of directors of Instinet immediately prior to such increase or decrease, as the case may be (the "Ratio"). In such event, Reuters and Instinet shall take such steps consistent with the provisions of Section 2.3(a) to effectuate this increase or decrease of Reuters Directors in relation to the Ratio as rapidly as reasonably possible.
(c) If, upon the occurrence of the Trigger Date and from time to time thereafter upon any reduction in the percentage of the Total Voting Power of Instinet represented by shares of Instinet stock beneficially owned by the Reuters Entities, the number of Affiliated Reuters Directors exceeds the number of directors which Reuters is then entitled to designate pursuant to Section 2.3(a), taking into account such reduction, Reuters shall cause that number of Affiliated Reuters Directors that are in excess of such permitted number of designees to immediately offer to tender to the Board of Directors his, her or their resignations, provided that Reuters may elect from which Affiliated Reuters Directors to request such resignation(s). If such resignation(s) is requested by vote of a majority of the members of the Board of Directors (other than Affiliated Reuters Directors), each Affiliated Reuters Director who offered such resignation and whose resignation is so requested shall immediately tender such resignation as provided in the certificate of incorporation and bylaws of Instinet. In the event that any such Affiliated Reuters Director fails to deliver his or her resignation as required pursuant to this Section 2.3(c), Instinet shall be entitled to take all necessary and appropriate action to cause such Affiliated Reuters Director to be removed and Reuters shall cooperate fully therewith.
(d) At the request of Reuters, Instinet shall (x) use its best efforts to cause a special meeting of stockholders to be held proposing the removal of any Reuters Director provided, that if in the reasonable good faith determination by the Board of Directors it is materially detrimental to do so, then Instinet may delay calling such special meeting; provided that Instinet will cause such meeting to be held within 135 days of such request by Reuters and (y) to the extent permitted by law, use its commercially reasonable efforts to solicit from stockholders of Instinet eligible to vote for the election of directors proxies to remove such specified Reuters Directors.
(e) For so long as the Reuters Entities beneficially own shares of Instinet's stock having at least 25% of the Total Voting Power of Instinet, subject to the fiduciary duties of the directors, Reuters Directors shall be nominated to serve on each committee of the Board of Directors (other than any committee (i) whose membership is specified in the Island Stockholders Agreement (in which case Reuters Directors shall be entitled to be nominated to serve on such committee to the extent provided in the Island Stockholders Agreement) or (ii) required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent a sufficient number of Reuters Directors do not qualify as independent directors; provided that such lesser number of Reuters Directors that do qualify as independent directors shall be appointed to such committee; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement) so that after such appointment(s), the ratio of Reuters Directors who are members of such committee to the total number of members of such committee is not less than the Ratio, provided, however, that for so long as the Reuters Entities are entitled to designate at least two directors, at least one Reuters Director shall be nominated to serve on each committee of the Board of Directors (other than any committee required by law or requirement of any applicable self-regulatory organization or any stock exchange or inter-dealer quotation system on which the Common Stock is listed or quoted to consist solely of independent directors but only to the extent that no Reuters Director qualifies as an independent director; and provided further that no Reuters Director shall serve on a committee to the extent such individual would be prohibited from so serving by any such applicable law or requirement). Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to nominate a director or directors to serve on any committee(s) of the Board of Directors at a percentage less than 25% of the Total Voting Power of Instinet (the "Lower Percentage"), Reuters shall have the right to appoint an equal number of Reuters Directors to serve on such committee(s) as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as the Lower Percentage. For so long as (i) Reuters beneficially owns shares of Instinet's stock having at least 10% but less than the Lower Percentage of the Total Voting Power of Instinet and (ii) there is at least one Reuters Director, any such Reuters Director shall be permitted to observe the proceedings of (but shall not be a member of) any committee of the Board of Directors. Notwithstanding the foregoing, if Instinet grants any other Person at any time or from time to time the right to appoint a director or directors to observe the proceedings of any committee(s) of the Board of Directors at a percentage less than 10% of the Total Voting Power of Instinet, Reuters shall have the right to appoint an equal number of Reuters Directors to observe such proceedings as such other Person (subject to the same limitations and conditions as such other Person's right, applied consistently to Reuters) so long as the Reuters Entities beneficially own an amount of Instinet stock having at least the same amount of the Total Voting Power of Instinet as such lesser percentage.
(f) Nothing in this Section 2.3 shall limit or restrict the Reuters Entities from voting or otherwise exercising their rights with respect to the shares of capital stock of Instinet held by them, including acting by written consent, to the fullest extent permitted under Instinet's certificate of incorporation and bylaws and Delaware law.
Appears in 1 contract
