The Board of Directors. 6.1 The Composition of the Board of Directors (a) The Board of Directors shall consist of five (5) Members of the Board of Directors, including the chairman of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors shall be nominated and elected in accordance with Clause 5.2 and this Clause 6.1 for a period of four (4) years. (b) So long as the Strategic Partner directly holds at least one-third (1/3) of the Shares, the Strategic Partner shall be entitled to nominate three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate two (2) of the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors. (c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled to nominate four (4) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. (d) In the event that a Shareholder shall at any time request (i) the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominated, then the Shareholders shall without delay vote at the General Meeting to procure such removal or the election of such new nominee. The Shareholders shall notify each other in writing of the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of Directors. (e) Each Member of the Board of Directors selected by the relevant Shareholder shall (i) meet the general requirements imposed on a member of a statutory body of a company under Slovak law and (ii) have the appropriate educational background and expert management skills in relevant fields. 6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEH, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"): (a) approval of the Strategic Plan or any amendments thereto (for the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of Directors); (b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment; (c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement; (d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities; (e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity; (f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares; (g) borrowing money or incurring any indebtedness by VSEH (other than in the ordinary course of business) save for: (i) Permitted Financing; (ii) provision of loans between VSEH Group Companies, provided that the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis); (iii) provision of loans by any of the Shareholders or their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis; (h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for (i) any guarantee or indemnity consistent in all material respects with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH; (i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment; (j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party; (k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreement; and (l) exercise of shareholder rights in SalesCo in respect of the election, removal or replacement of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs (a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of Directors.
Appears in 1 contract
Samples: Shareholder Agreement
The Board of Directors. 6.1 11.1 The Composition Company shall have a board of directors (the “Board”). The composition, powers, duties and operational procedures of the Board and other related matters shall be as stipulated in the Articles of DirectorsAssociation.
(a) 11.2 The Board shall be the highest authority of Directors the Company. The Board shall consist of five six (56) Members of the Board of Directorsdirectors, including the chairman of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors shall be nominated and elected in accordance with Clause 5.2 and this Clause 6.1 for a period of four (4) years.
(b) So long as the Strategic Partner directly holds at least one-third (1/3) of the Shares, the Strategic Partner shall be entitled to nominate three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government Shareholder whom shall be entitled to nominate appointed by Party A, two (2) of the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder whom shall be entitled to nominate appointed by Party B, and one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner whom shall be entitled to nominate four (4) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors.
(d) appointed by Party C. In the event that a Shareholder the ratio of the Parties’ respective interests in the registered capital of the Company changes, the number of directors to be appointed by each Party shall at any time request (i) reflect, as nearly as possible, its respective changed interest in the removal registered capital of a Member the Company and shall be in accordance with applicable PRC laws and regulations.
11.3 The power to nominate the Chairperson of the Board shall belong to Party A. Party B shall have the right to nominate the Vice Chairperson of Directors whom the Shareholder nominated or (ii) the election Board. Appointments and dismissals for both of a nominee to fill a vacancy created for any reason by the departure from office of a Member those positions shall be made in accordance with Article 12.6.
11.4 The Chairperson of the Board of Directors whom shall be the same Shareholder nominated, then the Shareholders shall without delay vote at the General Meeting to procure such removal or the election of such new nominee. The Shareholders shall notify each other in writing legal representative of the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of Directors.
(e) Each Member of the Board of Directors selected by the relevant Shareholder shall
(i) meet the general requirements imposed on a member of a statutory body of a company under Slovak law and (ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating to VSEHCompany, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEHconferred upon him/her by relevant PRC laws and regulations and by the Board. Likewise, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members Vice-Chairperson of the Board shall have the authority conferred upon him/her by relevant PRC laws and regulations and by the Board. Both the Chairperson and the Vice-Chairperson shall not contractually or otherwise bind the Company without the prior written authorization of Directors (including one (1) Member the Board.
11.5 Both the Chairperson and the Vice-Chairperson shall act in accordance with the provisions of this Contract and of the Articles of Association.
11.6 Whenever the Chairperson of the Board of Directors nominated by is unable to perform his/her responsibilities for any reason, he/she shall authorize the Government Shareholder and two (2) Members Vice-Chairperson of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect or another director to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide act on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"):
(a) approval of the Strategic Plan or any amendments thereto (for the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;
(g) borrowing money or incurring any indebtedness by VSEH (other than in the ordinary course of business) save for:
(i) Permitted Financing;
(ii) provision of loans between VSEH Group Companies, provided that the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis);
(iii) provision of loans by any of the Shareholders or their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for
(i) any guarantee or indemnity consistent in all material respects with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreement; and
(l) exercise of shareholder rights in SalesCo in respect of the election, removal or replacement of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of Directorshis/her behalf.
Appears in 1 contract
The Board of Directors. 6.1 (a) Prior to the IPO, the Company and the Stockholders shall take all Necessary Action to cause the Board to be comprised of seven (7) directors, who shall be divided into three (3) classes of directors in accordance with the terms of the Company Charter, and (i) [●] of whom shall be designated by the Stockholders (each, together with any replacement directors designated by the Stockholders in accordance with Section 2.1(b) or (c), a “GA Director”) and (ii) [●] of whom shall be an Independent Director who meets the independence criteria set forth in Rule 10A-3 under the Exchange Act (the “Unaffiliated Director”). The Composition foregoing directors shall be divided into such classes as follows:
(i) the initial class I directors shall be [●];
(ii) the initial class II directors shall be [●]; and
(iii) the initial class III directors shall be [●]. The initial term of the class I directors shall expire immediately following the Company’s 2022 annual meeting of stockholders at which directors are elected. The initial term of the class II directors shall expire immediately following the Company’s 2023 annual meeting of stockholders at which directors are elected. The initial term of the class III directors shall expire immediately following the Company’s 2024 annual meeting at which directors are elected. For the avoidance of doubt, this Section 2.1(a) is applicable solely to the initial composition of the Board of Directors
(aexcept that (i) The Board of Directors a director shall consist of five (5) Members remain a member of the Board class of Directors, including the chairman of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors shall be nominated and elected directors to which he or she was assigned in accordance with Clause 5.2 this Section 2.1(a) and (ii) the initial terms of each class of directors shall expire as set forth in this Clause 6.1 for a period of four (4) yearsSection 2.1(a)).
(b) So For so long as the Strategic Partner directly holds Stockholders beneficially own in the aggregate a number of shares of Class A Common Stock representing at least onethe percentage of shares of Class A Common Stock (determined on an “as-third converted” basis taking into account any and all securities then convertible into, or exercisable or exchangeable for, shares of Class A Common Stock (1/3including Common Units and shares of Class B Common Stock exchangeable pursuant to the Exchange Agreement)) of the Sharesissued and outstanding shown below, the Strategic Partner there shall be entitled to nominate three (3) included in the slate of the five (5) Members of nominees recommended by the Board for election as directors at each applicable annual or special meeting of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate two (2) of the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled to nominate four (4) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors.
(d) In the event that a Shareholder shall at any time request (i) the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominated, then the Shareholders shall without delay vote at the General Meeting to procure such removal or the election of such new nominee. The Shareholders shall notify each other in writing of the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting stockholders at which such nominees shall be approved as Members of the Board of Directors.
(e) Each Member of the Board of Directors selected by the relevant Shareholder shall
(i) meet the general requirements imposed on a member of a statutory body of a company under Slovak law and (ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEH, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"):
(a) approval of the Strategic Plan or any amendments thereto (for the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures directors are to be incurred elected that number of individuals designated by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years)Stockholders, where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years)that, if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republicelected, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;
(g) borrowing money or incurring any indebtedness by VSEH (other than will result in the ordinary course Stockholders having the number of business) save for:
(i) Permitted Financing;
(ii) provision of loans between VSEH Group Companies, provided that the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is directors serving on an Arm’s Length basis);
(iii) provision of loans by any of the Shareholders or their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for
(i) any guarantee or indemnity consistent in all material respects with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreement; and
(l) exercise of shareholder rights in SalesCo in respect of the election, removal or replacement of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of Directorsshown below.
Appears in 1 contract
The Board of Directors. 6.1 The Composition of the Board of Directors
(a) The Until the provisions of this Section 2 cease to be effective pursuant to Section 2(d), each Stockholder shall vote all voting securities of the Company over which such Stockholder has voting control, and shall take all other necessary or desirable actions within such Stockholder’s control (whether in such Stockholder’s capacity as a stockholder, director, member of a board committee or officer of the Company or otherwise, and including, without limitation, attendance at meetings in Person or by proxy for purposes of obtaining a quorum and execution of written consents in lieu of meetings); provided, that with respect to a director, nothing herein shall be construed as requiring such director to breach any fiduciary duty under applicable law, and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and stockholder meetings), so that:
(i) the Board of Directors shall consist initially be comprised of five (5) Members of the Board of Directors, including the chairman of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors shall be nominated and elected in accordance with Clause 5.2 and this Clause 6.1 for a period of four (4) years.
(b) So long as the Strategic Partner directly holds at least one-third (1/3) of the Shares, the Strategic Partner shall be entitled to nominate three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate two (2) of the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled to nominate four (4) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors.
(d) In the event that a Shareholder shall at any time request (i) the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominated, then the Shareholders shall without delay vote at the General Meeting to procure such removal or the election of such new nominee. The Shareholders shall notify each other in writing of the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of Directors.
(e) Each Member of the Board of Directors selected by the relevant Shareholder shall
(i) meet the general requirements imposed on a member of a statutory body of a company under Slovak law and (ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEH, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"):
(a) approval of the Strategic Plan or any amendments thereto (for the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;
(g) borrowing money or incurring any indebtedness by VSEH (other than in the ordinary course of business) save for:
(i) Permitted Financingdirectors;
(ii) provision the following persons will be elected to the Board:
(A) the then duly elected and acting chief executive officer and president of loans between VSEH Group Companiesthe Company (initially will be Xxxxxxx);
(B) three (3) representatives designated by the holders of the majority of BRS Shares (initially will be Xxxxxxx X. Xxxxxxxx, provided that Xxxxxx X. Xxxxxxx and X. Xxxx Xxxxxxx); and
(C) one (1) representative selected by BRS and approved by the relevant VSEH Group Companies are wholly owned by VSEH holders of a majority of the Common Stock, which representative shall not be an Affiliate of BRS or the Executives (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basisinitially will be Xxxxxxx Xxxxxxxx);
(iii) provision of loans by any at all times, the composition of the Shareholders board of directors of each of the Company’s Subsidiaries (a “Sub Board”) shall be the same as that of the Board;
(iv) any committees of the Board or their Affiliates a Sub Board may be created only upon approval of a majority of the members of the Board;
(v) any director shall be removed from the Board, a Sub Board or any committee thereof (with or without cause) at the written request of the Stockholder or Stockholders which have the right to designate such a director hereunder, but only upon such written request and under no other circumstances (in each case, determined on the VSEH Group Companies basis of a vote or consent of the relevant Stockholder(s)); provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit holders of a third party, save for
(i) any guarantee or indemnity consistent in all material respects with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change majority of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of Stockholder Shares may remove any Restricted Related Party Transaction to which any VSEH Group Company, save director for DSO, is cause but a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must director may only be elected designated by the employees of DSO pursuant Stockholders which have the right to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreementdesignate such director hereunder; and
(lvi) exercise of shareholder rights in SalesCo in respect the event that any representative designated hereunder for any reason ceases to serve as a member of the electionBoard or a Sub Board or any committee thereof during such representative’s term of office, removal the resulting vacancy on the Board or replacement such Sub Board or committee shall be filled by a representative designated by the Stockholders which have the right to designate the director who ceases to serve.
(b) The Company shall pay the reasonable out-of-pocket expenses incurred by each director in connection with attending the meetings of the Members Board or any Sub Board and any committee thereof.
(c) In the event that any provision of the SalesCo Board Company’s bylaws or certificate of Directors and incorporation is inconsistent with any provision of this Section 2, the Members Stockholders shall take such action as may be necessary to amend any such provision in the Company’s bylaws or certificate of incorporation to remedy such inconsistency.
(d) The size of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must may be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for increased upon the approval of a majority of the Board members of Directorsthe Board.
(e) The provisions of this Section 2 shall terminate automatically and be of no further force and effect upon the occurrence of a Qualified Public Offering.
Appears in 1 contract
Samples: Stockholders Agreement (Lazy Days R.V. Center, Inc.)
The Board of Directors. 6.1 The Composition 4.1 Subject to the Company Law, overall management of the Company shall vest in the Board of Directors
(a) . The Board of Directors shall consist of five (5) Members exercise all such powers and do all such acts and things on behalf of the Board of Directors, including Company and in the chairman of Company's interests as the Company is authorized to do unless expressly reserved or prohibited by this Agreement.
4.2 The Board of Directors and the vice-chairman shall be comprised of four persons. At all times, Astrata shall nominate two of the Board of first four Directors, and each Member PassTime shall nominate two of the first four Directors. The Shareholders will vote for the Directors as appointed.
4.3 The Chairman of the Board of Directors shall be nominated unanimously selected by the Board and elected shall serve in accordance with Clause 5.2 the Company’s Bylaws, Certificate of Incorporation and this Clause 6.1 for a period other such documents.
4.4 The meetings of the Board of Directors shall be held at least four (4) years.
(b) So long as times a year. The quorum for a meeting of the Strategic Partner directly holds Board of Directors shall be at least one-third three (1/33) Directors. Decisions of the Shares, the Strategic Partner Board of Directors shall be entitled to nominate made by three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate two (2) of the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled to nominate four (4) Directors at a duly convened meeting as provided in this Agreement. The Board shall maintain minutes of the five (5) Members meetings in reasonable detail and which adequately summarize its discussions. The minutes and all resolutions shall be recorded and maintained by the company at its principal office as official Company records. Any of the Board of DirectorsShareholders may review the minutes and resolutions personally or through an attorney or legal consultant at any time, including upon reasonable written notice to the chairman of the Board of DirectorsCompany’s Secretary, Chairman or President.
(d) In 4.5 A resolution in writing, or facsimile copies thereof signed by all the event that Directors entitled to attend a Shareholder shall at any time request (i) the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominated, then the Shareholders shall without delay vote at the General Meeting to procure such removal or the election of such new nominee. The Shareholders shall notify each other in writing of the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of Directors.
(e) Each Member of the Board of Directors selected by the relevant Shareholder shall
(i) meet the general requirements imposed on a member of a statutory body of a company under Slovak law and (ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers meeting of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO be as valid and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, effective as if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members it had been passed at a meeting of the Board of Directors duly convened and held, and may consist of several documents in like form signed by one or more of the Directors.
4.6 No Director shall have be personally liable for any loss or damage occasioned by an error of judgment or oversight on their part while diligently and faithfully performing their duties on behalf of the authority Company unless the same happens through their own willful misconduct or dishonesty.
4.7 The Company’s Bylaws shall hold harmless, indemnify and defend the Company’s Officers, Directors and key personnel from any and all loss, injury and/or claim to bind VSEHthe fullest extent permitted by law.
4.8 Notwithstanding anything to the contrary contained in this Agreement, always on the basis of a double signature procedure. The following matters are reserved to the Board of Directors for determination by them and shall be able to decide any matter with a quorum of at least require three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members Directors’ approval:
(i) Appointment and/or removal of the Board of Directors in which case at least four (4) Members President, Secretary and other officers of the Board of Directors must Company, provided that the President shall be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned PassTime and rescheduled. If no Member of the Board of Directors nominated employed by the Government Shareholder attends the rescheduled duly called meeting of Astrata and appointed by the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three ;
(3ii) Members Approval and/or modification of the Board budget and/or the Business Plan;
(iii) Determination of Directors are present except for matters which must be approved by a majority any distribution of at least four profits to Shareholders;
(4iv) Members Capitalizing reserves;
(v) Granting of options; and
(vi) Determination or modification of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. The Board of Directors shall be able Company’s Fiscal Year.
4.9 Subject to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the aboveCompany Law, the Board of Directors shall decide on provide that:
4.9.1 The Company shall at all times maintain proper accounting and other financial records in accordance with the requirements of all applicable laws and generally accepted accounting principles;
4.9.2 Quarterly management accounts containing such information as any Shareholder shall reasonably require shall be prepared and dispatched by the Company to the Shareholders within 7 days after the end of the following matters by a majority of quarter in question; and
4.9.3 Each Shareholder or its authorized representatives shall be allowed access at least four (4) Members reasonable times to examine the books and records of the Company at the Company’s place of business.
4.10 The Board of Directors shall develop and agree on a Business Plan for the "Special VSEH Board of Directors Majority"):Company from time to time in writing which shall, at a minimum, provide for the following:
(a) approval 4.10.1 An estimate of the Strategic Plan or any amendments thereto working capital requirements of the Company incorporated within a cash flow statement, together with an indication of the amount (if any) which is considered prudent to retain out of the previous Fiscal Year's distributable profits to meet such working capital requirements;
4.10.2 A projected profit and loss account;
4.10.3 An operating budget (including estimated capital expenditure requirements) and balance sheet forecast;
4.10.4 A review of projections for the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;
(g) borrowing money or incurring any indebtedness by VSEH (other than in the ordinary course of business) save for:
(i) Permitted Financing;
(ii) provision of loans between VSEH Group Companies, provided that the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis);
(iii) provision of loans by any of the Shareholders or their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for
(i) any guarantee or indemnity consistent in all material respects with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this AgreementBusiness; and
(l) exercise 4.10.5 A summary of shareholder rights business objectives; and
4.10.6 Designation of President as the Party in SalesCo in respect charge of the election, removal or replacement operations of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of DirectorsCompany.
Appears in 1 contract
Samples: Mutual Cooperation and Strategic Teaming Agreement (Astrata Group Inc)
The Board of Directors. 6.1 The Composition of the Board of Directors
(a) The Board of Directors shall consist of five Except as reserved for determination by the Shareholders pursuant to Section 9.3 (5) Members Powers of the Board of DirectorsGeneral Assembly), including the chairman overall management and control of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors Company shall be nominated and elected in accordance with Clause 5.2 and this Clause 6.1 for managed by a period board of four directors (4) yearsthe “Board”).
(b) So long as The Board shall consist of eight (8) members (each a “Director”). Prior to the Strategic Partner directly holds at least one-third (1/3) sale to the PublicCo Shareholder of the SharesPublicCo Acquisition Interest in accordance with Sections 5.2 (Sale of PublicCo Acquisition Interest; Initial Public Offering) and 19.2(a) (Permitted Transfers to PublicCo and Qualifying Affiliates), the Strategic Partner shall be entitled to nominate three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government each Founding Shareholder shall be entitled to nominate two (2) of have the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled right to nominate four (4) Directors. Upon the sale to the PublicCo Shareholder of the five PublicCo Acquisition Interest in accordance with Sections 5.2 (5Sale of PublicCo Acquisition Interest; Initial Public Offering) Members and 19.2(a) (Permitted Transfers to PublicCo and Qualifying Affiliates), each Founding Shareholder shall cause [***] of its Directors to resign, and thereafter the PublicCo Shareholder shall have the right to nominate [***] Directors and each Founding Shareholder shall have the right to nominate [***] Directors. Each Shareholder shall vote for the appointment of the Board individuals nominated by the Founding Shareholders and the PublicCo Shareholder to be Directors in accordance with this Section 8.1(b), provided that each such individual satisfies the Director Eligibility Criteria.
(c) To be eligible to serve as a Director, any individual nominated by either Founding Shareholder or the PublicCo Shareholder must satisfy the following criteria (the “Director Eligibility Criteria”):
(i) be of Directors, including sound mind and health and capable of managing his or her affairs and the chairman affairs of the Board Company;
(ii) not be the subject of Directorsany criminal conviction relevant to the governance or affairs of the Company, or otherwise of a serious nature;
(iii) not be bankrupt or insolvent or not have made or entered into any arrangement or composition with his or her creditors generally;
(iv) not be a current employee, officer, director, or contractor of, or currently hold a similar position in or with:
(A) any competitor of either Founding Shareholder or their respective Qualifying Affiliates (other than the Dow Founding Shareholder or the Saudi Aramco Founding Shareholder or their respective Qualifying Affiliates); or
(B) any Person to whom a Partial Transfer has been effected by way of an Upstream Transfer in accordance with Section 19.3 (Transfers to Third Parties); and
(v) not have a material economic or voting interest in:
(A) any competitor of either Founding Shareholder or their respective Qualifying Affiliates (other than the Dow Founding Shareholder or the Saudi Aramco Founding Shareholder or their respective Qualifying Affiliates); or
(B) any Person to whom a Partial Transfer has been effected by way of an Upstream Transfer in accordance with Section 19.3 (Transfers to Third Parties).
(d) In the event that a Shareholder shall If at any time request (i) a Director ceases to satisfy the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominatedDirector Eligibility Criteria, then the Shareholders Shareholder that nominated such Director shall without delay vote at procure the General Meeting to procure such removal or the election immediate resignation of such new nominee. The Shareholders shall notify each other in writing of Director and nominate a replacement Director who satisfies the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of DirectorsDirector Eligibility Criteria.
(e) Each Member Meetings of the Board of Directors selected shall be presided over by a chairman (the “Board Chairman”). In addition, a deputy chairman (the “Deputy Board Chairman”), a secretary (the “Board Secretary”), and an assistant secretary (the “Assistant Board Secretary”) shall be appointed as provided in this Section 8.1(e). The Board Chairman shall be nominated by the relevant Saudi Aramco Founding Shareholder shalland the Deputy Board Chairman shall be nominated by the Dow Founding Shareholder. Both the Board Chairman and the Deputy Board Chairman shall be nominated from amongst the Directors then appointed to the Board. Neither the Board Chairman nor the Deputy Board Chairman shall have a tie-breaking vote in the event of a tie in a Board vote or any other corporate governance powers or rights other than their single votes in their capacities as Directors. The Board Secretary shall be appointed by the Saudi Aramco Founding Shareholder and the Assistant Board Secretary shall be appointed by the Dow Founding Shareholder for, in each case, such periods of time as the Board shall determine in accordance with Section 8.6(f) (Board Action in General). The Board Secretary and the Assistant Board Secretary shall not be Directors. Each Shareholder shall cause the Directors appointed by it to vote in favor of the appointment of such nominees to these positions in accordance with this Section 8.1(e).
(f) Other than the initial Directors, who shall serve for a term of five (5) years, each Director shall serve for a term of three (3) years following his or her appointment to the Board, unless:
(i) meet the general requirements imposed on Director resigns or is removed and a member of a statutory body of a company under Slovak law and successor is appointed by the Shareholder that nominated such Director in accordance with Section 8.1(g); or
(ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating Shareholder that nominated such Director ceases to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEH, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meetingShareholder. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"):
(a) approval of the Strategic Plan or any amendments thereto (for For the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto Shareholders may reappoint individuals for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of successive terms as Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;.
(g) borrowing money Directors may be removed by the Shareholder that nominated them, at any time (with or incurring without cause), upon Notice to each other Shareholder and the Board Secretary. Additionally, any indebtedness Director may resign at any time upon Notice to the Shareholder represented by VSEH such Director and the Board Secretary. In either case, the Shareholder that nominated such Director may nominate a replacement Director to fulfill the remaining term of the Director who has been removed or has resigned and each Shareholder shall vote in favor of the appointment of such replacement, provided that such individual satisfies the Director Eligibility Criteria.
(other than in the ordinary course of businessh) save for:All Directors shall have equal voting rights, with each Director having one (1) vote.
(i) Permitted Financing;
(ii) provision of loans between VSEH Group Companies, provided that Each Shareholder shall cause the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis);
(iii) provision of loans by any of the Shareholders or Directors it has nominated to discharge their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for
(i) any guarantee or indemnity consistent duties in all material respects compliance with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors Applicable Law and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreement; and
(l) exercise of shareholder rights in SalesCo in respect of the election, removal or replacement of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of DirectorsConstitutive Documents.
Appears in 1 contract
The Board of Directors. 6.1 The Composition of the Board of Directors
(a) The Board of Directors shall consist of five Except as reserved for determination by the Shareholders pursuant to Section 9.3 (5) Members Powers of the Board of DirectorsGeneral Assembly), including the chairman overall management and control of the Board of Directors and the vice-chairman of the Board of Directors, and each Member of the Board of Directors Company shall be nominated and elected in accordance with Clause 5.2 and this Clause 6.1 for managed by a period board of four directors (4) yearsthe “Board”).
(b) So long as The Board shall consist of eight (8) members (each a “Director”). Prior to the Strategic Partner directly holds at least one-third (1/3) sale to the PublicCo Shareholder of the SharesPublicCo Acquisition Interest in accordance with Sections 5.2 (Sale of PublicCo Acquisition Interest; Initial Public Offering) and 19.2(a) (Permitted Transfers to PublicCo and Qualifying Affiliates), the Strategic Partner shall be entitled to nominate three (3) of the five (5) Members of the Board of Directors, including the chairman of the Board of Directors. So long as the Government Shareholder directly holds at least one-third (1/3) of the Shares, the Government each Founding Shareholder shall be entitled to nominate two (2) of have the five (5) Members of the Board of Directors, including the vice-chairman of the Board of Directors.
(c) So long as the Government Shareholder directly holds more than ten per cent. (10 %) but less than one-third (1/3) of the Shares, the Government Shareholder shall be entitled to nominate one (1) of the five (5) Members of the Board of Directors. In such case the Strategic Partner shall be entitled right to nominate four (4) Directors. Upon the sale to the PublicCo Shareholder of the five PublicCo Acquisition Interest in accordance with Sections 5.2 (5Sale of PublicCo Acquisition Interest; Initial Public Offering) Members and 19.2(a) (Permitted Transfers to PublicCo and Qualifying Affiliates) [***]. Each Shareholder shall vote for the appointment of the Board individuals nominated by the Founding Shareholders and the PublicCo Shareholder to be Directors in accordance with this Section 8.1(b), provided that each such individual satisfies the Director Eligibility Criteria.
(c) To be eligible to serve as a Director, any individual nominated by either Founding Shareholder or the PublicCo Shareholder must satisfy the following criteria (the “Director Eligibility Criteria”):
(i) be of Directors, including sound mind and health and capable of managing his or her affairs and the chairman affairs of the Board Company;
(ii) not be the subject of Directors.any criminal conviction relevant to the governance or affairs of the Company, or otherwise of a serious nature;
(iii) not be bankrupt or insolvent or not have made or entered into any arrangement or composition with his or her creditors generally; [***] [***]
(d) In the event that a Shareholder shall If at any time request (i) a Director ceases to satisfy the removal of a Member of the Board of Directors whom the Shareholder nominated or (ii) the election of a nominee to fill a vacancy created for any reason by the departure from office of a Member of the Board of Directors whom the same Shareholder nominatedDirector Eligibility Criteria, then the Shareholders Shareholder that nominated such Director shall without delay vote at procure the General Meeting to procure such removal or the election immediate resignation of such new nominee. The Shareholders shall notify each other in writing of Director and nominate a replacement Director who satisfies the Persons which they intend to nominate at least ten (10) Business Days prior to the date of any General Meeting at which such nominees shall be approved as Members of the Board of DirectorsDirector Eligibility Criteria.
(e) Each Member Meetings of the Board shall be presided over by a chairman (the “Board Chairman”). In addition, a deputy chairman (the “Deputy Board Chairman”), a secretary (the “Board Secretary”), and an assistant secretary (the “Assistant Board Secretary”) shall be appointed as provided in this Section 8.1(e). The Board Chairman shall be nominated by [***] and the Deputy Board Chairman shall be nominated by [***]. Both the Board Chairman and the Deputy Board Chairman shall be nominated from amongst the Directors then appointed to the Board. Neither the Board Chairman nor the Deputy Board Chairman shall have a tie-breaking vote in the event of a tie in a Board vote or any other corporate governance powers or rights other than their single votes in their capacities as Directors. The Board Secretary shall be appointed by [***] and the Assistant Board Secretary shall be appointed by [***] for, in each case, such periods of time as the Board shall determine in accordance with Section 8.6(f) (Board Action in General). The Board Secretary and the Assistant Board Secretary shall not be Directors. Each Shareholder shall cause the Directors selected appointed by it to vote in favor of the relevant Shareholder shallappointment of such nominees to these positions in accordance with this Section 8.1(e).
(f) Other than the initial Directors, who shall serve for a term of five (5) years, each Director shall serve for a term of three (3) years following his or her appointment to the Board, unless:
(i) meet the general requirements imposed on Director resigns or is removed and a member of a statutory body of a company under Slovak law and successor is appointed by the Shareholder that nominated such Director in accordance with Section 8.1(g); or
(ii) have the appropriate educational background and expert management skills in relevant fields.
6.2 Decisions of the Board of Directors The Board of Directors shall make decisions on behalf of VSEH on all matters relating Shareholder that nominated such Director ceases to VSEH, and not otherwise reserved to the General Meeting or the Supervisory Board by the Amended Articles of Association of VSEH, this Agreement or by Slovak law. The powers of the Board of Directors shall include, inter alia, the execution of the rights of DSO Shareholder in respect of DSO and the execution of rights of the SalesCo Shareholder in respect of the SalesCo, subject to the prior approval of the General Meeting, if required under Clauses 5.2(t) and 5.2(u) respectively. Any two (2) Members of the Board of Directors shall have the authority to bind VSEH, always on the basis of a double signature procedure. The Board of Directors shall be able to decide any matter with a quorum of at least three (3) Members of the Board of Directors (including one (1) Member of the Board of Directors nominated by the Government Shareholder and two (2) Members of the Board of Directors nominated by the Strategic Partner) except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meeting. If no Member of the Board of Directors nominated by the Government Shareholder attends a properly scheduled meeting, the meeting shall be adjourned and rescheduled. If no Member of the Board of Directors nominated by the Government Shareholder attends the rescheduled duly called meeting of the Board of Directors, the quorum requirements set out shall herein not apply with respect to the second of such meetings, and there will be a valid quorum if any three (3) Members of the Board of Directors are present except for matters which must be approved by a majority of at least four (4) Members of the Board of Directors in which case at least four (4) Members of the Board of Directors must be present at the meetingShareholder. The Board of Directors shall be able to decide any matter upon the affirmative vote of a simple majority of the present Members of the Board of Directors, except for matters where this Clause 6.2 provides otherwise. The chairman of the Board of Directors shall not have a casting vote. Notwithstanding the above, the Board of Directors shall decide on any of the following matters by a majority of at least four (4) Members of the Board of Directors the "Special VSEH Board of Directors Majority"):
(a) approval of the Strategic Plan or any amendments thereto (for For the avoidance of doubt, the submission of a proposal of the Strategic Plan or any amendments thereto Shareholders may reappoint individuals for review by the Supervisory Board shall not require approval by at least four (4) Members of the Board of successive terms as Directors);
(b) subject to Clause 15.1, establishment and termination of employment of the CEO of VSEH and approval of his terms of employment;
(c) establishment and termination of engagement of the SIC Advisor and approval of his terms of engagement;
(d) any investment project of VSEH where the planned capital expenditures of VSEH for such project individually exceed (i) EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years) and simultaneously such investment falls within the scope of the Key Activities or (ii) EUR 300,000 (three hundred thousand Euros) (including where such capital expenditures are to be incurred by VSEH over several years), where such investment does not fall within the scope of the Key Activities;
(e) any acquisition of any shares or ownership interests in any company by VSEH (i) if the purchase price, with respect to the respective transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 3,000,000 (three million Euros) (including where such capital expenditures are to be incurred by VSEH over several years), if such investment serves for the performance of the Key Activity or (ii) EUR 300,000 (three hundred thousand Euros) (including where the capital expenditures are to be incurred by VSEH over several years) where such investment does not serve for immediate performance of the Key Activity;
(f) any settlement of any legal or arbitration proceedings regarding disputes which individually involve or may be reasonably expected to involve an amount (including related costs) of more than EUR 150,000 (one hundred fifty thousand Euros) (other than legal or arbitration proceedings regarding disputes between VSEH and the Slovak Republic, any of its agencies or state authorities or any company where the Slovak Republic, or any of its agencies or state authorities holds (directly or indirectly) one-third (1/3) or more of such company’s shares;.
(g) borrowing money Directors may be removed by the Shareholder that nominated them, at any time (with or incurring without cause), upon Notice to each other Shareholder and the Board Secretary. Additionally, any indebtedness Director may resign at any time upon Notice to the Shareholder represented by VSEH such Director and the Board Secretary. In either case, the Shareholder that nominated such Director may nominate a replacement Director to fulfill the remaining term of the Director who has been removed or has resigned and each Shareholder shall vote in favor of the appointment of such replacement, provided that such individual satisfies the Director Eligibility Criteria.
(other than in the ordinary course of businessh) save for:All Directors shall have equal voting rights, with each Director having one (1) vote.
(i) Permitted Financing;
(ii) provision of loans between VSEH Group Companies, provided that Each Shareholder shall cause the relevant VSEH Group Companies are wholly owned by VSEH (provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis);
(iii) provision of loans by any of the Shareholders or Directors it has nominated to discharge their Affiliates to the VSEH Group Companies provided, for the avoidance of doubt, that the relevant transaction is on an Arm’s Length basis;
(h) any guarantee or indemnity given by VSEH for the benefit of a third party, save for
(i) any guarantee or indemnity consistent duties in all material respects compliance with market practice in the relevant market and relating to the liabilities of any VSEH Group Company incurred through the Permitted Financing; (ii) any indemnity given in the ordinary course of business of VSEH and consistent in all material respects with the market practice in the relevant market as a remedy for actions or omissions of VSEH or any other VSEH Group Company which is wholly owned by VSEH;
(i) any material change in the accounting policies and principles adopted by VSEH in the preparation of its audited statutory financial statements (including, for the avoidance of doubt, any change of the accounting period), which is not attributable to changes in underlying business circumstances or changes in legal and regulatory environment;
(j) approval of any Restricted Related Party Transaction to which any VSEH Group Company, save for DSO, is a party;
(k) exercise of shareholder rights in DSO in respect of the election, removal or replacement of the Members of the DSO Board of Directors Applicable Law and the Members of the DSO Supervisory Board (with the exception of those Members of the DSO Supervisory Board who must be elected by the employees of DSO pursuant to applicable laws) and conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the DSO Board of Directors or the DSO Supervisory Board determined in accordance with Clauses 9.1 and 10.1 of this Agreement; and
(l) exercise of shareholder rights in SalesCo in respect of the election, removal or replacement of the Members of the SalesCo Board of Directors and the Members of the SalesCo Supervisory Board (with the exception of those Members of the SalesCo Supervisory Board who must be elected by the employees of SalesCo pursuant to applicable laws) and the conclusion or amendment of their office agreements on performance of their offices. Shareholders shall procure that their respective nominees in the Board of Directors will vote to elect, remove or replace the nominees in the SalesCo Board of Directors or the SalesCo Supervisory Board determined in accordance with Clauses 12.1 and 13.1 of this Agreement. The Strategic Partner shall ensure that each transaction (i) referred to in Clause 6.2 limbs
(a) to (l) to be entered into by VSEH, where the value of such transaction, individually or by way of a series of related transactions together, exceeds EUR 60,000 (sixty thousand Euros) or (ii) which shall be entered into by VSEH and where the value of such transaction individually or the aggregate value of a series of related transactions together, exceeds EUR 150,000 (one hundred and fifty thousand Euros) and in any case excluding any transaction on sale or purchase of electricity and gas on an Arm’s Length basis which includes terms and conditions, including price, which are available for acceptance to other comparable customers, on a non-discriminatory basis (other than any transaction on sale or purchase of electricity or gas which is a Restricted Related Party Transaction) is submitted for the approval of the Board of DirectorsConstitutive Documents.
Appears in 1 contract
