Subsequent Board Composition. (a) From and after the date hereof, the Company shall take all action to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, a number of persons designated by Xxxxxxx (each person so designated by Xxxxxxx, an “Xxxxxxx Designee”) equal to the Xxxxxxx Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx Designee. (b) The Company shall cause each Xxxxxxx Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Designee, including soliciting proxies in favor of the election of such persons. (c) In the event that any Xxxxxxx Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Designee. (d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Director upon the written request of Xxxxxxx. (e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Director (each such person, a “Non-Xxxxxxx Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are elected and (ii) each Non-Xxxxxxx Designee (other than the then-current Chief Executive Officer of the Company) shall be a Company Independent Director and shall meet all other requirements under Applicable Law for membership on the Audit Committee of the Company Board (the “Audit Committee”) and one of which such Non-Xxxxxxx Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall at all times include at least three Company Independent Directors. (f) For so long as the Xxxxxxx Ownership Percentage is greater than fifty percent (50%), to the extent permitted by Applicable Law, if so requested by Xxxxxxx, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole or in part, as requested by Xxxxxxx). (g) Subject to Applicable Law, each Xxxxxxx Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director of the Company Board, provided such Xxxxxxx Director is permitted to disclose to the Xxxxxxx Group, Representatives of the Xxxxxxx Group and such Xxxxxxx Director’s advisors information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx or any Affiliates of Xxxxxxx in such Xxxxxxx Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information. (h) Until the Second Trigger Date, (i) Xxxxxxx shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of Xxxxxxx. (i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”) (i) Xxxxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of Xxxxxxx. (j) For the avoidance of doubt, Xxxxxxx shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3.
Appears in 3 contracts
Samples: Transaction Agreement and Plan of Merger (Emersub CX, Inc.), Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/), Transaction Agreement and Plan of Merger (Aspen Technology Inc /De/)
Subsequent Board Composition. (a) From After the appointment of the Initial Board as set forth above, at all applicable times following the Closing and after until such time as the date hereofAggregate Ownership Percentage of the Investor Group is less than 10%, the Company shall take all action actions necessary, subject to Applicable Law and Applicable Governance Rules, to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: of the following members:
(i) prior to the Third Trigger Date, a number of persons individuals designated by Xxxxxxx (each person so designated by Xxxxxxx, an “Xxxxxxx Designee”) the Investor as Investor Designees that is equal to the Xxxxxxx lesser of (A) seats representing 33.34% of the Board and (B) a number equal to (x) the number of seats on the Board multiplied by (y) the Aggregate Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board Investor Group at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), each case rounded up to the nearest whole person (number, but in no event not less than one);
(ii) the Chief Executive Officer of the Company;
(iii) such directors initially designated pursuant to Section 2.01(a)(ii) or, following the vacancy of any such seat caused by the death, disability, retirement, resignation or removal of any such director, an Independent Director; and
(iv) such number of Independent Directors as is necessary to fill all then-remaining seats on the Board. Subject to the foregoing, the director nominees to be presented to the stockholders at any annual or special meeting called for the purpose of electing directors shall be selected by the nominating committee of the Board (it being understood and agreed that the nominating committee shall be comprised at all times of a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx DesigneeIndependent Directors).
(b) The Company shall agrees to cause each Xxxxxxx Designee individual designated pursuant to this Section 2.02 to be included nominated for election as a director on the Board, and to take all other necessary actions, subject to Applicable Law and Applicable Governance Rules, to ensure that the composition of the Board is as set forth in this Section 2.02, including by calling a special meeting of the nominating committee, the Board and/or the Company stockholders, recommending to Company stockholders the election of the designees selected pursuant to this Section 2.02, and using its reasonable best efforts to solicit proxies in favor of the election of any such individuals to the Board from the stockholders of the Company eligible to vote for the election of directors as of the record date for such meeting; provided that, notwithstanding anything in this Article 2 to the contrary, any director on the Board shall be required to meet the minimum qualifications for directors set forth in the slate Company’s Corporate Governance Guidelines then in effect (which qualifications shall not be amended without the prior written consent of nominees recommended by a majority of the Company Board Investor Designees, other than to holders comply with Applicable Governance Requirements based on the written advice of Company Common Stock for election (including outside counsel to the Company). Without limiting the foregoing, at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Designee, including soliciting proxies in favor of the election of such persons.
(c) In the event that any Xxxxxxx Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Designee.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Director upon the written request of Xxxxxxx.
(e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Director (each such person, a “Non-Xxxxxxx Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are to be elected (including any special meeting called by the Company pursuant to the preceding sentence), the Company shall either re-nominate for election each then-serving Investor Designee (provided that, if at such time the Investor shall be entitled to nominate fewer Investor Designees pursuant to Section 2.02(a)(i) than the number of then-serving Investor Designees, the Investor shall notify the Company in writing of the Investor Designee(s) that shall not be nominated for subsequent election) or such other Investor Designee(s) as the Investor may designate to the Company in writing. In connection with any designation by the Investor of an Investor Designee pursuant to the preceding sentence, the Investor agrees to provide to the Company all information concerning such Investor Designee(s) reasonably required and requested by the Company to the extent necessary for the Company to comply with Applicable Governance Rules and applicable disclosure rules. If at any time the Aggregate Ownership Percentage of the Investor Group decreases by such amount that the Investor shall be entitled to fewer Investor Designees pursuant to Section 2.02(a)(i) than the number of then-serving Investor Designees, then, at the request of the Company, the Investor shall cause the resignation of a number of Investor Designee(s) necessary so that, following such resignations, the number of Investor Designees is equal to the number of Investor Designees that the Investor is entitled to designate pursuant to Section 2.02(a)(i), if any.
(c) The size of the Board as provided for in Section 2.02(a) may be expanded following the Closing as approved by the Board, but may only be reduced if and to the extent (x) required by Applicable Governance Rules or (y) approved by a majority of the Investor Designees. If the size of the Board is expanded in accordance with this Section 2.02(c), (i) any additional Investor Designees shall be designated by the Investor in accordance with Section 2.02(a)(i) and (ii) any necessary additional Independent Directors shall be initially selected by the nominating committee of the Board. If the size of the Board is reduced in accordance with this Section 2.02(c), (i) if as a result of such reduction the Investor would be entitled to designate fewer Investor Designees pursuant to Section 2.02(a)(i), the Investor shall cause the resignation of a number of Investor Designee(s) necessary so that, following such resignations, the number of Investor Designees is equal to the number of Investor Designees that the Investor is entitled to designate pursuant to Section 2.02(a)(i), and (ii) the Company shall cause the resignation of the appropriate number of Independent Directors. In furtherance of the foregoing, the Company and the Investor shall cooperate to ensure that, after taking into account any modification to the size of the Board, the composition of the Board continues to reflect, as closely as practicable, the intended Board composition under this Article 2.
(d) Except as otherwise set forth in Section 2.02(b), if, as a result of death, disability, retirement, resignation, removal (with or without Cause) or otherwise, there shall exist or occur any vacancy of a seat on the Board previously occupied by an Investor Designee, the Investor shall have the right to designate another individual to fill such vacancy and serve as a director on the Board pursuant to Section 2.02(a). Any other vacancy on the Board shall be filled with a director candidate selected by the nominating committee; provided that, in the event that a vacancy shall result in the nominating committee no longer having a majority of Independent Directors, a majority of the Independent Directors then in office shall have the right, subject to Section 2.02(a), to designate an individual to fill such vacancy.
(e) The Investor agrees that, if at any time the Investor has the right to designate at least one Investor Designee on the Board pursuant to Section 2.02(a)(i), the Investor shall, and shall cause each NonInvestor Group Member to, subject to Section 3.01(c)(iii), (A) cause their respective Shares to be present for quorum purposes at any stockholder meeting called for the purpose of electing directors, and (B) if at any time it or any Investor Group Member is then entitled to vote for the election or removal of directors, vote such Shares or execute proxies or written consents, as the case may be, on a director-Xxxxxxx Designee by-director basis, either (1) in accordance with the recommendation of the Board or (2) in the same proportion as the votes cast by all stockholders of the Company other than the then-current Chief Executive Officer Investor Group; provided that (i) the obligations of the Investor Group in this Section 2.02(e) shall not apply in connection with any director election if the Company’s nominees are not consistent with the agreed Board composition set forth in this Section 2.02, and (ii) in no event may any member of the Investor Group vote any of its Shares for any director candidate nominated by any other stockholder of the Company if such nominee (x) is a director, manager, principal, partner, officer or employee of the Investor or any of its Affiliates, or (y) would otherwise not qualify as an “Independent Director” of the Investor as a result of the specific, objective criteria set forth in NASDAQ Listing Rule 5605(a)(2)(A)-(G) (determined for this purpose as if such rule applied to the Investor); and provided, further, that, if there has been a breach by the Investor of Section 3.01(b), and such breach results in the nomination of a director candidate by any other stockholder of the Company) shall be a Company Independent Director , then the Investor shall, and shall meet cause each Investor Group Member to, vote all of its Shares solely in accordance with the recommendation of the Board in connection with such director election.
(f) Each of the Existing VC Investors agrees that, if at any time any director on the Board is a director, manager, principal, partner, officer, employee or other representative of such Existing VC Investor or any of its Affiliates (an “Existing VC Representative”), such Existing VC Investor shall, and shall cause each of its Existing VC Investor Group Members to, (A) cause their respective Shares to be present for quorum purposes at any stockholder meeting called for the purpose of electing directors, (B) if at any time it or any of its Existing VC Investor Group Members is then entitled to vote for the election of directors, vote such Shares or execute proxies or written consents, as the case may be, and take all other requirements under Applicable Law for membership on necessary action in order to ensure that the Audit Committee composition of the Company Board is as set forth in this Section 2.02, and (C) not vote any of its Shares in favor of the “Audit Committee”removal of any director who shall have been designated pursuant to this Section 2.02; provided that, if the Person or Persons entitled to designate any director pursuant to this Section 2.02 shall request in writing the removal of such director, such Existing VC Investor shall vote its Shares in favor of such removal.
(g) and one of which such Non-Xxxxxxx Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall acknowledges and agrees that any Investor Designee may, at all times include at least three Company Independent Directors.
(f) For so long as the Xxxxxxx Ownership Percentage is greater than fifty percent (50%)Investor’s discretion, to the extent permitted by Applicable Lawbe an existing director, if so requested by Xxxxxxxofficer, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole employee or in part, as requested by Xxxxxxx).
(g) Subject to Applicable Law, each Xxxxxxx Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director consultant of the Company Board, provided such Xxxxxxx Director is permitted to disclose to the Xxxxxxx Group, Representatives of the Xxxxxxx Group and such Xxxxxxx Director’s advisors information about the Company and its Affiliates that he Investor or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx or any Affiliates of Xxxxxxx in such Xxxxxxx Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Director shall not be liable to the Company, any of its stockholders Affiliates, or any other Person for breach of any duty individual that has a relationship (including material or otherwise) with the duty of loyalty Investor or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential informationits Affiliates.
(h) Until the Second Trigger Date, (i) Xxxxxxx shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of Xxxxxxx.
(i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”)
(i) Xxxxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of Xxxxxxx.
(j) For the avoidance of doubt, Xxxxxxx shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3.
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (Foundation Medicine, Inc.)
Subsequent Board Composition. (a) From and after the date hereof, the Company shall take all action to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, a number of persons designated by Xxxxxxx Emerson (each person so designated by XxxxxxxEmerson, an “Xxxxxxx Emerson Designee”) equal to the Xxxxxxx Emerson Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx Emerson Designee.
(b) The Company shall cause each Xxxxxxx Emerson Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Emerson Designee, including soliciting proxies in favor of the election of such persons.
(c) In the event that any Xxxxxxx Emerson Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Emerson Designee.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Emerson Director upon the written request of XxxxxxxEmerson.
(e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Emerson Director (each such person, a “Non-Xxxxxxx Emerson Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Emerson Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are elected and (ii) each Non-Xxxxxxx Emerson Designee (other than the then-current Chief Executive Officer of the Company) shall be a Company Independent Director and shall meet all other requirements under Applicable Law for membership on the Audit Committee of the Company Board (the “Audit Committee”) and one of which such Non-Xxxxxxx Emerson Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall at all times include at least three Company Independent Directors.
(f) For so long as the Xxxxxxx Emerson Ownership Percentage is greater than fifty percent (50%), to the extent permitted by Applicable Law, if so requested by XxxxxxxEmerson, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole or in part, as requested by XxxxxxxEmerson).
(g) Subject to Applicable Law, each Xxxxxxx Emerson Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director of the Company Board, provided such Xxxxxxx Emerson Director is permitted to disclose to the Xxxxxxx Emerson Group, Representatives of the Xxxxxxx Emerson Group and such Xxxxxxx Emerson Director’s advisors information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Emerson Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board 10 TABLE OF CONTENTS (or subcommittee thereof) confidential information of Xxxxxxx Emerson or any Affiliates of Xxxxxxx Emerson in such Xxxxxxx Emerson Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Emerson Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information.shall
(h) Until the Second Trigger Date, (i) Xxxxxxx Emerson shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of XxxxxxxEmerson.
(i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”)
(i) Xxxxxxx Emerson shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of XxxxxxxEmerson.
(j) For the avoidance of doubt, Xxxxxxx Emerson shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3. Section 3.3.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Aspen Technology, Inc.)
Subsequent Board Composition. (a) From and after the date hereof, the Company shall take all action to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, a number of persons designated by Xxxxxxx Exxxxxx (each person so designated by XxxxxxxExxxxxx, an “Xxxxxxx Exxxxxx Designee”) equal to the Xxxxxxx Exxxxxx Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx Exxxxxx Designee.
(b) The Company shall cause each Xxxxxxx Exxxxxx Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Exxxxxx Designee, including soliciting proxies in favor of the election of such persons.
(c) In the event that any Xxxxxxx Exxxxxx Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Exxxxxx Designee.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Exxxxxx Director upon the written request of XxxxxxxExxxxxx.
(e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Exxxxxx Director (each such person, a “Non-Xxxxxxx Exxxxxx Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Exxxxxx Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are elected and (ii) each Non-Xxxxxxx Exxxxxx Designee (other than the then-current Chief Executive Officer of the Company) shall be a Company Independent Director and shall meet all other requirements under Applicable Law for membership on the Audit Committee of the Company Board (the “Audit Committee”) and one of which such Non-Xxxxxxx Exxxxxx Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall at all times include at least three Company Independent Directors.
(f) For so long as the Xxxxxxx Exxxxxx Ownership Percentage is greater than fifty percent (50%), to the extent permitted by Applicable Law, if so requested by XxxxxxxExxxxxx, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole or in part, as requested by XxxxxxxExxxxxx).
(g) Subject to Applicable Law, each Xxxxxxx Exxxxxx Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director of the Company Board, provided such Xxxxxxx Exxxxxx Director is permitted to disclose to the Xxxxxxx Exxxxxx Group, Representatives of the Xxxxxxx Exxxxxx Group and such Xxxxxxx Exxxxxx Director’s advisors information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Exxxxxx Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx Exxxxxx or any Affiliates of Xxxxxxx Exxxxxx in such Xxxxxxx Exxxxxx Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Exxxxxx Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information.
(h) Until the Second Trigger Date, (i) Xxxxxxx Exxxxxx shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of XxxxxxxExxxxxx.
(i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”)
(i) Xxxxxxx Exxxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of XxxxxxxExxxxxx.
(j) For the avoidance of doubt, Xxxxxxx Exxxxxx shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section Section 3.2, by delivery of written notice to the Company in accordance with Section Section 7.3.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Emerson Electric Co)
Subsequent Board Composition. (a) From and after the date hereof, the Company shall take all action to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, a number of persons designated by Xxxxxxx (each person so designated by Xxxxxxx, an “Xxxxxxx Designee”) equal to the Xxxxxxx Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx Designee.
(b) The Company shall cause each Xxxxxxx Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Designee, including soliciting proxies in favor of the election of such persons.
(c) In the event that any Xxxxxxx Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Designee.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Director upon the written request of Xxxxxxx.
(e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Director (each such person, a “Non-Xxxxxxx Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are elected and (ii) each Non-Xxxxxxx Designee (other than the then-current Chief Executive Officer of the Company) shall be a Company Independent Director and shall meet all other requirements under Applicable Law for membership on the Audit Committee of the Company Board (the “Audit Committee”) and one of which such Non-Xxxxxxx Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall at all times include at least three Company Independent Directors.
(f) For so long as the Xxxxxxx Ownership Percentage is greater than fifty percent (50%), to the extent permitted by Applicable Law, if so requested by Xxxxxxx, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole or in part, as requested by Xxxxxxx).
(g) Subject to Applicable Law, each Xxxxxxx Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director of the Company Board, provided such Xxxxxxx Director is permitted to disclose to the Xxxxxxx Group, Representatives of the Xxxxxxx Group and such Xxxxxxx Director’s advisors information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx or any Affiliates of Xxxxxxx in such Xxxxxxx Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information.
(h) Until the Second Trigger Date, (i) Xxxxxxx shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of Xxxxxxx.
(i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”)
(i) Xxxxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of Xxxxxxx.
(j) For the avoidance of doubt, Xxxxxxx shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Merger (Emerson Electric Co)
Subsequent Board Composition. (a) From and after the date hereof, the Company shall take all action to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, a number of persons designated by Xxxxxxx Emerson (each person so designated by XxxxxxxEmerson, an “Xxxxxxx Emerson Designee”) equal to the Xxxxxxx Emerson Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on the Company Board until the Second Trigger Date) and (ii) following the Third Trigger Date, one Xxxxxxx Emerson Designee.
(b) The Company shall cause each Xxxxxxx Emerson Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Emerson Designee, including soliciting proxies in favor of the election of such persons.
(c) In the event that any Xxxxxxx Emerson Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Emerson Designee.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Emerson Director upon the written request of XxxxxxxEmerson.
(e) From and after the date hereof, in the event of a vacancy on the Company Board upon the death, resignation, retirement, disqualification, removal from office or other cause of any director who was not an Xxxxxxx Emerson Director (each such person, a “Non-Xxxxxxx Emerson Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Emerson Designee”) in accordance with Applicable Law; provided that, until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included for nomination at any annual or special meeting of the Company at which directors are elected and (ii) each Non-Xxxxxxx Emerson Designee (other than the then-current Chief Executive Officer of the Company) shall be a Company Independent Director and shall meet all other requirements under Applicable Law for membership on the Audit Committee of the Company Board (the “Audit Committee”) and one of which such Non-Xxxxxxx Emerson Designees shall also be an “audit committee financial expert” under Item 407(d)(5) of Regulation S-K. For the avoidance of doubt, the Company Board shall at all times include at least three Company Independent Directors.
(f) For so long as the Xxxxxxx Emerson Ownership Percentage is greater than fifty percent (50%), to the extent permitted by Applicable Law, if so requested by Xxxxxxx, the Company shall avail itself of available “Controlled Company” exemptions to the corporate governance listing standards of Nasdaq (in whole or in part, as requested by XxxxxxxEmerson).
(g) Subject to Applicable Law, each Xxxxxxx Emerson Director shall keep confidential any information about the Company and its Affiliates he or she receives as a result of being a director of the Company Board, provided such Xxxxxxx Emerson Director is permitted to disclose to the Xxxxxxx Group, Representatives of the Xxxxxxx Group and such Xxxxxxx Emerson Director’s advisors information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable Law or in equity, to the fullest extent permitted by Applicable Law, no Xxxxxxx Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx Emerson or any Affiliates of Xxxxxxx Emerson in such Xxxxxxx Emerson Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information.
(h) Until the Second Trigger Date, (i) Xxxxxxx shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of Xxxxxxx.
(i) Until the Second Trigger Date, if at any time the chair of the Company Board is not an Independent Director, to the extent the Company Board designates a director to be the “lead independent director” (the “Lead Independent Director”)
(i) Xxxxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the Lead Independent Director with another member of the Company Board who is an Independent Director upon the written request of Xxxxxxx.
(j) For the avoidance of doubt, Xxxxxxx shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3.
Appears in 1 contract
Subsequent Board Composition. (a) From and after the date hereofhereof and until the Fourth Trigger Date, the Company shall take all action as may be necessary or appropriate to cause the Company Board, at any time (including if the size of the Company Board is increased or decreased), to be comprised of: (i) prior to the Third Trigger Date, of a number of persons designated by Xxxxxxx Ivory (each person so designated by XxxxxxxIvory, an “Xxxxxxx Ivory Designee”) equal to the Xxxxxxx Ivory Ownership Percentage (expressed as a fraction) multiplied by the total authorized number of directors of the Company Board at such time (including as constituted immediately following any increase in size of the Company Board to comply with this Section 3.2), rounded up to the nearest whole person (but in no event less than a majority of the members on of the Company Board until the Second First Trigger Date) ), at least one of whom shall be an Ivory Independent Director who meets all requirements under the Exchange Act and (ii) following the Third Trigger Date, one Xxxxxxx DesigneeNasdaq corporate governance listing standards for membership on the Audit Committee.
(b) The Company shall cause each Xxxxxxx Ivory Designee to be included in the slate of nominees recommended by the Company Board to holders of Company Common Stock for election (including at any annual or special meeting of stockholders held for the election of directors) and shall use its best efforts to cause the election of each such Xxxxxxx Ivory Designee, including by soliciting proxies in favor of the election of each such personsIvory Designee.
(c) In the event that If any Xxxxxxx Ivory Director shall cease to serve as a director for any reason, the vacancy resulting therefrom shall be filled by the Company Board with a substitute Xxxxxxx Ivory Designee, promptly (and in any event within five Business Days) upon the written request of Ivory.
(d) The Company hereby agrees to take, at any time and from time to time, all actions necessary to facilitate the removal and replacement of any Xxxxxxx Ivory Director upon the written request of XxxxxxxXxxxx.
(e) From and after the date hereof, the Nominating and Corporate Governance Committee of the Company Board (the “Nominating Committee”) shall have the sole right to nominate for election at any annual or special meeting of stockholders held for the election of directors the persons who will occupy the Company Board seats not occupied by Ivory Directors (each such nominee, a “Non-Ivory Designee”) and in the event of a vacancy on the Company Board upon caused by the death, resignation, retirement, disqualification, removal from office office, or other cause of any director who was not an Xxxxxxx Ivory Director (each such person, a “Non-Xxxxxxx Ivory Director”), the Nominating & Governance Committee of the Company Board (the “Nominating & Governance Committee”) shall have the sole right to fill such vacancy or designate a person for nomination for election to the Company Board to fill such vacancy (such person, a “Non-Xxxxxxx Designee”) in accordance with Applicable applicable Law; provided thatprovided, however, that until the Third Trigger Date, (i) the then-current Chief Executive Officer of the Company shall be included nominated for nomination election as a Non-Ivory Director at any annual or special meeting of the Company at which directors are elected elected, and (ii) each at least two Non-Xxxxxxx Designee (other than the then-current Chief Executive Officer of the Company) Ivory Designees shall be a Company Independent Director Directors and shall meet all other requirements under Applicable Law the Exchange Act and the Nasdaq corporate governance listing standards for membership on the Audit Committee of the Company Board (the “Audit Committee”) , and at least one of which such Non-Xxxxxxx Designees Ivory Designee shall also be an “audit committee financial expert” under having the attributes specified in Item 407(d)(5407(d)(5)(ii) of Regulation S-K. For the avoidance of doubt, the The Company Board shall at all times include at least three Company Independent DirectorsDirectors who meet all requirements under the Exchange Act and the Nasdaq corporate governance listing standards for membership on the Audit Committee.
(f) For so long as At any time the Xxxxxxx Ivory Ownership Percentage is greater than fifty percent (50%), to the extent permitted unless otherwise agreed in writing by Applicable Law, if so requested by XxxxxxxIvory, the Company shall avail itself of all available “Controlled Company” exemptions to from the requirements of the corporate governance listing standards of Nasdaq. Notwithstanding anything to the contrary in this Agreement, at any time during which the Company ceases to qualify as a “Controlled Company” under the corporate governance listing standards of Nasdaq, Ivory shall cause the Ivory Designees to include such number of designees who qualify as an “independent director” under applicable Nasdaq (in whole or in part, as requested by Xxxxxxx)corporate governance listing standards to ensure the Company’s compliance with applicable Nasdaq corporate governance listing standards.
(g) Subject to Applicable applicable Law, each Xxxxxxx Ivory Director shall keep confidential any information about the Company and its Affiliates that he or she receives as a result of being a director member of the Company Board; provided, provided however, that (i) no such Xxxxxxx duty of confidentiality shall apply to any information that is or becomes generally available to the public, and (ii) each Ivory Director is permitted to disclose to the Xxxxxxx Ivory Group, Representatives of the Xxxxxxx Ivory Group and such Xxxxxxx Ivory Director’s advisors (in the case of advisors, who have a legal or ethical obligation to maintain the confidentiality of such information) information about the Company and its Affiliates that he or she receives as a result of being a director. Notwithstanding any duty otherwise existing under Applicable applicable Law or in equity, to the fullest extent permitted by Applicable applicable Law, no Xxxxxxx Ivory Director shall have any duty to disclose to the Company or the Company Board or any committee of the Company Board (or subcommittee thereof) confidential information of Xxxxxxx Ivory or any Affiliates of Xxxxxxx Ivory in such Xxxxxxx Ivory Director’s possession even if it is material and relevant information to the Company, the Company Board or any committee of the Company Board (or subcommittee thereof) and, in any case, such Xxxxxxx Ivory Director shall not be liable to the Company, any of its stockholders or any other Person for breach of any duty (including the duty of loyalty or any other fiduciary duties) as a director by reason of such lack of disclosure of such confidential information.
(h) Subject to Section 3.1, the chair of the Company Board shall be appointed (and may be removed and replaced at any time) by the Company Board. Until the Second Trigger Date, (i) Xxxxxxx Ivory shall have the right to nominate a member of the Company Board as the chair of the Company Board and the Company shall cause the Company Board to take all actions necessary to cause such person to become the chair of the Company Board, and (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to remove and replace the chair of the Company Board with another member of the Company Board upon the written request of XxxxxxxIvory.
(i) Until the Second Trigger Date, (i) if at any time the chair of the Company Board is an Ivory Director who is not an Independent Director, the Nominating Committee shall have the right to the extent the Company Board designates a director nominate an Independent Director to be the “lead independent director” (the “Lead Independent Director”)
; (iii) Xxxxxxx if at any time the chair of the Company Board is a Non-Ivory Director who is not an Independent Director, Xxxxx shall have the right to nominate a member of the Company Board who is an Independent Director to be the Lead Independent Director and the Company shall cause the Company Board to take all actions necessary to cause such person to become the Lead Independent Director, and (iii) in any case described in clause (i) or (ii) the Company shall take, at any time and from time to time, all actions necessary to cause the Company Board to appoint and (if necessary) remove and replace the Lead Independent Director with another member of to give effect to the Company Board who is an Independent Director upon the written request of Xxxxxxxforegoing provisions.
(j) For the avoidance of doubt, Xxxxxxx Ivory shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 3.2, by delivery of written notice to the Company in accordance with Section 7.3Company.
Appears in 1 contract
