AMENDMENT NO. 3 TO BOARD REPRESENTATION AGREEMENT
| EXHIBIT 10.43 |
AMENDMENT NO. 3 TO BOARD REPRESENTATION AGREEMENT
This AMENDMENT NO. 3 TO BOARD REPRESENTATION AGREEMENT dated as of May 30, 2002 is by and among Xxxxxx Micro Inc., a Delaware corporation (“Micro”), and each person listed on the signature pages hereof, and amends that certain Board Representation Agreement dated as of November 6, 1996 and amended as of June 1, 2001 and March 12, 2002 (the “Board Representation Agreement”).
WITNESSETH:
WHEREAS, the parties hereto desire to amend the Board Representation Agreement to reflect amendments to Micro’s bylaws;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Amendment to Section 2.2. Section 2.2 of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “Section 2.2 Qualifications of Directors; Subsequent Nominations of Directors. |
| (a) | Composition and Qualifications of the Board. The Family Stockholders agree to vote their shares of Micro Common Shares to cause the Board, from and after the date of this Agreement and until their successors are duly elected and qualified in accordance with law and the terms of this Agreement, to consist of the chief executive officer of Micro, three individuals named by the Family Stockholders and who may be Family Stockholders, and four individuals who shall be Independent and who shall have been approved by the Family Stockholders. All subsequent nominations of persons for election to the Board contained in proxy soliciting material distributed on behalf of Micro during the term of this Agreement will be made by the Board upon the recommendation of the Governance Committee, and all persons proposed to fill vacancies on the Board shall in each case be consistent with the provisions of Micro’s bylaws which shall provide the following qualifications for directors: |
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| (i) | Three individuals who are designated by the Family Stockholders and who need not be Independent and may be Family Stockholders (the “Family Directors”); | ||
| (ii) | One individual who is designated by the chief executive officer of Micro, who need not be Independent and who may be the chief executive officer of Micro (the “Management Director”); and | ||
| (iii) | Four (in the case of a Board consisting of eight directors), five (in the case of a Board consisting of nine directors) or six (in the case of a Board consisting of ten directors) individuals, as the case may be from time to time, who shall be Independent (the “Independent Directors”). | ||
| (b) | Addition of Ninth or Tenth Director. After the election and qualification of the eight directors as set forth in Section 2.2 above, the Board may be expanded to nine or ten directors by the affirmative vote of a majority of such eight or nine directors, as the case may be. Such ninth or tenth director shall have the qualifications of being nominated, or elected if permitted by law and Micro’s bylaws, by a majority of the Board upon the recommendation of the Governance Committee and shall be Independent. After the initial qualification and election of such ninth or tenth director as set forth in this Section 2.2(b), any vacancy created by the death, resignation or removal of such director shall be filled pursuant to Section 2.3 below.” |
SECTION 2. Amendment to Section 2.3. Section 2.3 of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “SECTION 2.3 Filling of Vacancies. The bylaws of Micro shall provide that if, as a result of the death, resignation or removal of a director, a vacancy is created on the Board, the vacancy shall be filled in the following manner with individuals with the following qualifications: (a) if the vacancy resulted from the death, resignation or removal of a Family Director, the vacancy shall be filled by vote of a majority of the remaining Family Directors; (b) if the vacancy resulted from the death, resignation or removal of the Management Director, the vacancy shall be filled by a person qualifying to be a Management Director as designated by the chief executive officer of Micro; and (c) if the vacancy resulted from the death, resignation or removal of an Independent Director, the vacancy shall be filled by a person qualifying to be an Independent Director nominated by the Governance Committee and approved by a majority of the entire Board then in office.” |
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SECTION 3. Amendment to Section 2.4. Section 2.4 of the Board Representation Agreement is hereby deleted and replaced with the following text:
| “SECTION 2.4 Committees. |
| (a) | General. The bylaws of Micro shall provide for the designation, qualification and composition of the Board committees as set forth below and shall provide that all committees shall act by vote of the majority of the entire number of directors which constitute the committee. | ||
| (i) | Governance Committee. The Governance Committee shall consist of three directors, one of whom shall be a Family Director and one of whom shall be an Independent Director. The third Committee member shall be a Family Director if requested by a majority of the Family Directors and otherwise shall be an Independent Director. | |
| (ii) | Executive and Finance Committee. The Executive and Finance Committee shall consist of three directors, one of whom shall be a Family Director, one of whom shall be the Management Director and one of whom shall be an Independent Director. | |
| (iii) | Human Resources Committee. The Human Resources Committee shall consist of three directors, one of whom shall be a Family Director, and two of whom shall be Independent Directors. The Human Resources Committee shall establish the compensation of all executive officers of Micro and shall administer all stock option, purchase and equity incentive plans. | |
| (iv) | Audit Committee. The Audit Committee shall consist of at least three directors, all of whom shall be Independent Directors. |
| (b) | Selection and Removal of Committee Members. The bylaws shall provide that the Governance Committee shall recommend to the Board the directors to serve on the Board Committees and shall direct the Governance Committee to follow the qualification requirements set forth in Sections 2.2 and 2.4(a). Committee members shall be determined by the vote of a majority of the members of the Board. A Committee member shall be subject to removal from his or her position as a Committee member by the vote of a majority of the members of the Board.” | ||
SECTION 4. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the conflicts of laws rules of such state.
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SECTION 5. Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original, with the same effect as if the signature thereto and hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written.
| XXXXXX MICRO INC. |
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| By: | /s/ Xxxx X.
Xxxxxx |
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| Name: XXXX X. XXXXXX | ||||
| Title: Chairman of the Board |
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| /s/ Xxxxxx X. Xxxxxx |
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| XXXXXX X. XXXXXX |
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| /s/ Xxxxx X. Xxxxxx, XX |
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| XXXXX X. XXXXXX, XX |
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| /s/ Xxxx X. Xxxxxx |
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| XXXX X. XXXXXX | ||||
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| QTIP MARITAL TRUST CREATED UNDER THE
E. XXXXXXX XXXXXX REVOCABLE TRUST
AGREEMENT DATED JANUARY 4, 1995 |
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| By: | XXXXXX X. XXXXXX, XXXXX X. XXXXXX, XX
AND XXXX X. XXXXXX, as Co-Trustees |
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| By: | /s/ Xxxxxx X.
Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Co-Trustee |
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| By: | /s/ Xxxxx X.
Xxxxxx, XX Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| E. XXXXXXX XXXXXX 1995 CHARITABLE REMAINDER
5% UNITRUST |
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| By: | XXXXXX X. XXXXXX, as Trustee |
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| By: | /s/ Xxxxxx X.
Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Trustee |
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| XXXXXX AND XXXXXXX XXXXXX FOUNDATION |
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| By: | XXXXX X. XXXXXX, XX AND XXXX X. XXXXXX, as
Co-Trustees |
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| By: | /s/ Xxxxx X.
Xxxxxx, XX Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X.
Xxxxxx Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| E. XXXXXXX XXXXXX 1994 CHARITABLE LEAD ANNUITY TRUST |
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| By: | XXXXX X. XXXXXX, XX AND XXXX X. XXXXXX, as Co-Trustees |
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| By: | /s/ Xxxxx X.
Xxxxxx, XX Name: Xxxxx X. Xxxxxx, XX Title: Co-Trustee |
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| By: | /s/ Xxxx X.
Xxxxxx Name: Xxxx X. Xxxxxx Title: Co-Trustee |
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| TRUST FOR XXXXX XXXXX XXXXXX, XX, UNDER AGREEMENT
WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 |
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| By: | SUNTRUST BANK, ATLANTA, as Trustee |
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| By: | /s/ Xxxxxx X.
Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| THE XXXXX X. XXXXXX IRREVOCABLE TRUST
DATED JULY 9, 1992 |
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| By: | SUNTRUST BANK, ATLANTA, AND
XXXXXXX X. XXXXX, as Co-Trustees |
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| By: | /s/ Xxxxxx X.
Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER
AN AGREEMENT OF TRUST ORIGINALLY
DATED APRIL 30, 1982, AS AMENDED |
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| By: | SUNTRUST BANK, ATLANTA, AND
XXXXXXX X. XXXXX, as Co-Trustees |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| XXXXX AND XXXX XXXXXX FAMILY 1997 GENERATION SKIPPING TRUST |
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| By: | XXXXXXX X. XXXXX, as Trustee |
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| By: | /s/ Xxxxxxx X.
Xxxxx Name: Xxxxxxx X. Xxxxx Title: Trustee |
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| TRUST FOR XXXX XXXXXX XXXXXX, UNDER AGREEMENT
WITH XXXXXXXX X. XXXXXX DATED DECEMBER 22, 1975 |
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| By: | SUNTRUST BANK, ATLANTA, as Trustee |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| THE XXXX X. XXXXXX IRREVOCABLE TRUST
DATED JULY 9, 1992 |
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX,
as Co-Trustees |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| TRUST FOR THE BENEFIT OF XXXX X. XXXXXX
ESTABLISHED BY XXXXXX X. XXXXXX UNDER AN AGREEMENT
OF TRUST ORIGINALLY DATED APRIL 30, 1982, AS AMENDED |
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| By: | SUNTRUST BANK, ATLANTA, AND XXXXXXX X. XXXXX,
as Co-Trustees |
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| By: | /s/ Xxxxxx X. Xxxxx, Xx. Name: Xxxxxx X. Xxxxx, Xx. Title: First Vice President |
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| By: | /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Co-Trustee |
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| THE XXXX AND XXXXXXXXX XXXXXX FAMILY 1996 GENERATION SKIPPING TRUST |
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| By: | XXXXXXX X. XXXXX, as Trustee |
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| By: | /s/ Xxxxxxx X. Xxxxx Name: Xxxxxxx X. Xxxxx Title: Trustee |
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| THE XXXX XXXXXX XXXXXX ANNUITY TRUST 2000 |
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| By: | XXXX X. XXXXXX, as Trustee |
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| By: | /s/ Xxxx X.
Xxxxxx Name: Xxxx X. Xxxxxx Title: Trustee |
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| THE XXXX XXXXXX XXXXXX ANNUITY TRUST 2001 |
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| By: | XXXX X. XXXXXX, as Trustee |
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| By: | /s/ Xxxx X.
Xxxxxx Name: Xxxx X. Xxxxxx Title: Trustee |
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