Board Composition. (a) Subject to the provisions of Sections 6.02(b) and 6.02(d): (i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors. (ii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors. (iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors. (iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors of the Company (other than the Jointly-Selected Director (as hereinafter defined)), the "Company Directors"), one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors").
Appears in 2 contracts
Sources: Securities Purchase Agreement (Labone Inc/), Securities Purchase Agreement (Welsh Carson Anderson & Stowe Ix Lp)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders of the Company at which an election of directors is held or pursuant to any written consent of the stockholders, the following individuals shall be elected to the Company’s board of directors (the “Board”):
(a) Subject to one (1) independent industry expert recommended by the provisions Board, and approved by the holders of Sections 6.02(b) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more a majority of the shares of Company the Series A Preferred Stock, for so long as the holders of the shares of Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming issued or issuable upon conversion of all the shares of Series B-2 A Preferred Shares into Series B-1 Preferred Shares Stock held by the Investors (i) continue to own beneficially at least two million (2,000,000) shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon Company Shareholder Approval and conversion of all Series B-1 A Preferred Shares (including those which are Conversion Shares) into Company Common Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers like and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long as the Purchasers issued and their respective Affiliates beneficially own outstanding Series A Preferred Stock represents at least ten percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 5010%) of the outstanding capital stock of the Company on a fully-diluted basis (the “Series A Threshold”);
(b) one (1) independent industry expert recommended by the Board, and approved by the holders of a majority of the shares of Company the Series B Preferred Stock, for so long as the holders of the shares of Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming issued or issuable upon conversion of all the shares of Series B-2 B Preferred Shares into Series B-1 Preferred Shares Stock held by the Investors (i) continue to own beneficially at least two million (2,000,000) shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon Company Shareholder Approval and conversion of all Series B-1 B Preferred Shares (including those which are Conversion Shares) into Company Common Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the Purchaser Representative shall have like and (ii) the right to nominate for election on behalf of the Purchasers issued and such Affiliates two directors to serve on the Company's Board of Directors.
outstanding Series B Preferred Stock represents at least ten percent (iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 510%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf outstanding capital stock of the Purchasers and such Affiliates one director to serve Company on a fully-diluted basis (the Company's Board of Directors.“Series B Threshold”);
(ivc) So for so long as the Purchasers and their respective Affiliates beneficially own Key Holders hold any shares of Common Stock (determined in accordance with Rule 13d-3 under as adjusted for any stock splits, stock dividends, recapitalizations or the Exchange Actlike), one (1) at least 5% individual designated by the Key Holders holding a majority of the shares of Company Common Stock purchased hereunder then held by the Key Holders (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i“Key Holder Designee”), which individual shall be Dr. ▇▇▇▇▇▇▇ During; provided that if for any reason the Key Holders do not designate Dr. During as the Key Holder Designee, each of the Stockholders shall promptly vote their respective Shares to elect Dr. During as an additional member of the Board, provided Dr. During exercises his option to remain on the Board other than as the Key Holder Designee;
(iid) or (iii) abovethe Company’s Chief Executive Officer, as applicable who shall be ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ (the directors so nominated“CEO Director”), provided that if for any reason ▇▇. ▇▇▇▇▇ shall cease to serve as the "WCAS Directors" and Chief Executive Officer of the Company, each of the Stockholders shall promptly vote their respective Shares to elect ▇▇. ▇▇▇▇▇ as an additional member of the Board, provided ▇▇. ▇▇▇▇▇ exercises his option to remain on the Board other members than as the CEO Director; and
(e) one (1) individual designated by ▇▇. ▇▇▇▇▇. To the extent that any of clauses (a) through (e) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors"), one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")Restated Certificate.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.), Series B 1 Preferred Stock Purchase Agreement (Ovid Therapeutics Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject One person designated by Sake Ventures, LLC and Rice Wine Ventures, LLC (collectively, “CJF”) as the Series C Director, which individual shall initially be S▇▇▇▇▇ ▇▇▇▇▇▇, for so long as such Stockholder and its Affiliates continue to own beneficially at least 4,046,315 shares of Common Stock of the provisions Company (including shares of Sections 6.02(bCommon Stock issued or issuable upon conversion of Series C Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(b) One person designated by Shining as the Series B Director, which individual shall initially be X▇▇▇▇▇▇▇ ▇▇▇▇, for so long as such Stockholder and its Affiliates continue to own beneficially at least 3,435,122 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series B Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like. For purposes of this Agreement, “Shining” shall collectively refer to Shiningwine Limited (BVI), Dreamer Pathway Limited (BVI) and 6.02(d):Dream Catcher Investments Limited (BVI).
(ic) So One person designated by Bessemer as the Series A Director, which individual shall initially be K▇▇▇ ▇▇▇▇▇▇▇, for so long as Bessemer and its Affiliates continue to own beneficially at least 2,978,934 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(d) One person designated by CrossCut Ventures 2, LP (the “CrossCut Designee”) as the Series Seed Director, which individual shall initially be L▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for so long as such Stockholders and their Affiliates continue to own beneficially at least 1,733,404 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series Seed Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(e) For so long as the Purchasers and their respective Affiliates beneficially own Key Holders who are then, or any Key Holder entity that is owned, controlled or established for estate planning purposes and/or for the benefit of any Founder who is then, providing services to the Company as officers, employees or consultants collectively hold at least 1,000,000 shares of Common Stock (determined in accordance with Rule 13d-3 under as adjusted for any stock splits, stock dividends, recapitalizations or the Exchange Act) Series B-1 Preferred Shareslike), Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more two individuals designated by the holders of a majority of the shares Shares of Company Common Stock purchased hereunder on held by the Closing Date (determined on an asKey Holders who are then, or held by any Key Holder entity that is owned, controlled or established for estate planning purposes and/or for the benefit of any Founder who is then, providing services to the Company as full-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval time officers, employees or consultants as the Common Directors, which individuals shall initially be A▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.G▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
(iif) So long One individual not otherwise an Affiliate (as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%defined below) of the shares Company or of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and any Investor who is unanimously approved by the other members of the Board. To the extent that any of clauses (a) through (f) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Company’s Restated Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directorssame management company with, the "Non-WCAS Directors")such Person.
Appears in 2 contracts
Sources: Voting Agreement (Winc, Inc.), Voting Agreement (Winc, Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject one person designated by the Investor holding the greatest number of shares of Series A Preferred Stock held by any of the Investors, other than RMI Investments S.A.R.L. or any of its Affiliates (the “Series A Designee”), who shall be the Series A Director (as defined in the Certificate of Incorporation), which individual shall initially be ▇▇▇▇▇ ▇▇▇▇▇, for so long as at least 5,000,000 shares of Series A Preferred Stock are issued and outstanding (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the provisions like);
(b) one person designated by RMI Investments S.A.R.L. (the “RMI Designee”), which individual shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, for so long as such Stockholder and its Affiliates collectively continue to beneficially own at least 1,500,000 shares of Sections 6.02(bSeries A Preferred Stock (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like);
(c) and 6.02(d):
one person designated by AJU Growth & Healthcare Fund (the “Series B Designee”), who shall be the Series B Director (as defined in the Certificate of Incorporation), which seat shall initially be vacant, for so long as (i) So such Stockholder and its Affiliates collectively continue to beneficially own at least 300,000 shares of Series B Preferred Stock (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like) and (ii) at least 5,000,000 shares of Series B Preferred Stock are issued and outstanding (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like);
(d) one person designated by Cormorant Private Healthcare Fund I, LP (the “Cormorant Designee”), who shall be the Series C Director (as defined in the Certificate of Incorporation), which individual shall initially be ▇▇▇▇▇ ▇▇▇▇, for so long as the Purchasers (i) such Stockholder and their respective its Affiliates collectively continue to beneficially own at least 1,100,000 shares of Series C Preferred Stock (determined which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like) and (ii) at least 2,741,228 shares of Series C Preferred Stock are issued and outstanding (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like);
(e) one person designated by ▇▇▇▇ Capital Life Sciences, LP (the “Bain Designee”), who shall be the Series D Director (as defined in accordance with Rule 13d-3 under the Exchange ActCertificate of Incorporation), which individual shall initially be ▇▇▇▇▇▇ Hack, for so long as such Stockholder and its Affiliates collectively continue to beneficially own at least 1,500,000 shares of Series D Preferred Stock (which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like);
(f) Series B-1 Preferred SharesOne person designated by the holders of a majority of the outstanding shares of Common Stock held by the Key Holders (the “Key Holder Designee”), Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more who shall be the director elected by the holders of record of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), exclusively and as a separate class, under the Purchaser Representative Certificate of Incorporation, which individual shall have the right to nominate for election on behalf initially be ▇▇▇▇-▇▇▇▇▇▇ Sommadossi, Ph.D.; and
(g) Three (3) persons who are each not otherwise an Affiliate of the Purchasers Company or of any Stockholder and such Affiliates three directors who are mutually acceptable to serve on (i) the Company's Board of Directors.
Founder and (ii) So long as the Purchasers holders of a majority in voting power of the outstanding shares of Preferred Stock (the “Independent Designees”), who shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ and their respective Affiliates beneficially own ▇▇▇▇▇ ▇▇▇▇▇▇. To the extent that any of clauses (determined a) through (f) above shall not be applicable, any member of the Board who would otherwise have been designated in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of terms thereof shall instead be voted upon by all the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors"), one Certificate of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")Incorporation.
Appears in 2 contracts
Sources: Stockholders Agreement (Atea Pharmaceuticals, Inc.), Stockholders Agreement (Atea Pharmaceuticals, Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject to the provisions of Sections 6.02(bOne person designated by Bios Fund I, LP (“Bios I”) and 6.02(d):
Bios Fund I QP, LP (i) So together with Bios I, “Bios”), which individual shall be selected at such time as determined by Bios, to serve as one of the two Series A Directors, for so long as the Purchasers Bios and their respective its Affiliates continue to own beneficially own at least seven and one-half percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 507.5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors of the Company (other than including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the Jointlylike;
(b) One person designated by Green Park & Golf Ventures, LLC, a Texas limited liability company (“Green Park”), which individual shall be selected at such time as determined by Green Park, to serve the remaining Series A Director, for so long as Green Park and its Affiliates continue to own beneficially at least seven and one-Selected Director half percent (7.5%) shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like; and
(c) For so long as the Key Holders hold at least 400,000 shares of Common Stock (as hereinafter defined)adjusted for any stock splits, stock dividends, recapitalizations or the like), two individuals designated by the "Company Directors"), one holders of a majority of the members Shares of Common Stock held by the Key Holders, which individuals shall initially be ▇▇▇▇▇ Nara and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇. To the extent that any of clauses (a) through (c) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company not nominated by entitled to vote thereon in accordance with, and pursuant to, the Purchaser Representative pursuant to clause Company’s Restated Certificate. For purposes of this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directorssame management company with, the "Non-WCAS Directors")such Person.
Appears in 2 contracts
Sources: Voting Agreement (Lantern Pharma Inc.), Voting Agreement (Lantern Pharma Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following natural persons shall be elected to the Board:
(a) Subject to the provisions of Sections 6.02(bOne (1) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined person elected by a majority in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more interest of the shares holders of Company Common the Series A Preferred Stock, the Series A-1 Preferred Stock purchased hereunder on and the Closing Date (determined Series B Preferred Stock, voting together as a single class on an as-converted to Common Stock basis assuming conversion of all (the “Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common StockA/A-1/B Designee”), the Purchaser Representative who shall have the right to nominate be designated by F-Prime Capital Partners Healthcare Fund IV LP (“F-Prime”) for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So so long as the Purchasers F-Prime and their respective its Affiliates (as defined below) continue to own beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) at least 1,019,692 of the shares of Company Common Stock purchased hereunder on of the Closing Date Company (determined including shares of Common Stock issued or issuable upon conversion of the Series A-1 Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like. The Series A/A-1/B Designee shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇;
(b) Two (2) persons elected by the holders of a majority of the shares of Series C Preferred Stock outstanding, voting as a single class (i) one of whom (the “PFM Series C Designee”) shall be designated by PFM Health Sciences, LP and its Affiliate funds (“PFM”) for so long as PFM continues to own beneficially at least 231,790 shares of Series C Preferred Stock (including shares of Common Stock issued or issuable upon conversion of the Series C Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like, and (ii) one of whom (the “Ridgeback Series C Designee;” the Ridgeback Designee and the PFM Designee are collectively referred to herein as the “Series C Designees”) shall be designated by RIDGEBACK CAPITAL INVESTMENTS LP (“Ridgeback”) for so long as Ridgeback and its Affiliate funds continue to own beneficially at least 231,790 shares of Series C Preferred Stock (including shares of Common Stock issued or issuable upon conversion of the Series C Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like; provided, however, that if either PFM and/or Ridgeback is no longer entitled to designate a Series C Designee as provided in this sentence, then Zone III Healthcare Holdings, LLC (“Farallon”) shall be entitled to designate the Series C Designee that otherwise would have been designated by PFM and/or Ridgeback (as the case may be) provided that Farallon and its Affiliate funds owns beneficially as of the date Farallon’s right to designate a Series C Designee becomes effective hereunder, and thereafter Farallon and its Affiliate funds continue to own beneficially, at least 231,790 shares of Series C Preferred Stock (including shares of Common Stock issued or issuable upon conversion of the Series C Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like. The PFM Series C Designee shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; and the Ridgeback Series C Designee shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇-▇▇▇▇▇;
(c) One (1) person elected by the holders of a majority of the shares of Common Stock outstanding (the “Common Designee”), which Common Designee shall be the Company’s Chief Executive Officer, who shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the “CEO Director”), provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of the Company, each of the Stockholders shall promptly vote their respective Shares (i) to remove the former Chief Executive Officer from the Board if such person has not resigned as a member of the Board and (ii) to elect such person’s replacement as Chief Executive Officer of the Company as the new CEO Director; and
(d) Three (3) independent persons with experience in the life sciences field who are not affiliated with the Company or any Investor, which persons shall be elected by the holders of a majority of the shares of Common Stock and the Preferred Stock outstanding, voting together as a single class on an as-converted to Common Stock basis assuming conversion (the “Independent Directors”), and shall initially be designated by management of all Series B-2 the Company and approved by a majority of the Preferred Shares into Series B-1 Preferred Shares upon Directors. The Independent Directors shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇ with two (2) initial vacancies in the seats allocated for Independent Directors. After an Independent Director shall initially be elected or appointed for a seat, any re-elections, substitutions or replacements for that seat shall be designees proposed by management of the Company Shareholder Approval and conversion approved by a majority of all Series B-1 Preferred Shares the remaining Board members (including those which are Conversion Sharesthe remaining sitting Independent Directors). To the extent that any of clauses (a) into Company Common Stock)through (d) above shall not be applicable, the Purchaser Representative shall have the right to nominate for election on behalf any member of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined who would otherwise have been designated in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of terms thereof shall instead be voted upon by all the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Company’s Restated Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by, or is under common control with such Person, including, without limitation, any general partner, limited partner, member, manager, managing member, employee, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or is under common investment management with or shares the Purchaser Representative same management company with, such Person. For purposes of this definition, the term “control” when used with respect to any Person shall mean the power to direct the management or policies of such Person, directly or indirectly, whether through ownership of voting securities, by contract or otherwise, and the Company Directors (terms “controlling” and “controlled” shall have meanings correlative to the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")foregoing.
Appears in 2 contracts
Sources: Voting Agreement (Caribou Biosciences, Inc.), Voting Agreement (Caribou Biosciences, Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject At each election of directors in which the Series A Holders (excluding the shares held by Ascent Biomedical Ventures I., LP, or Ascent Biomedical Ventures NY I, LP (collectively “ABV”) if any), voting as a separate class, are entitled to elect one (1) director of the Company, the individual designated by such Series A Holders, so long as 750,000 shares of Series A Preferred Stock remain outstanding, who shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇;
(b) Provided that Quantum holds more than 340,938 shares of Series B Preferred Stock on or before November 30, 2009, and thereafter until such time as Quantum holds fewer than 340,938 shares of Series B Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the provisions Series B Preferred Stock), Quantum shall be entitled to elect one (1) director of Sections 6.02(bthe Corporation (the “Series B Director”), who shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇▇; provided however, in the event that Quantum does not hold more than 340,938 shares of Series B Preferred Stock on or before November 30, 2009, or any time thereafter holds less than 340,938 shares of Series B Preferred Stock, the Series B Director may be elected by a majority of the holders of record of the Shares of Series 13 Preferred Stock subject to such proposed Series B Director being approved by each of ▇▇▇ ▇▇▇▇▇▇▇, the Series A Director (as defined below) and 6.02(d):the ABV Director (as defined below);
(c) At each election of directors in which the holders of Common Stock and/or any other class or series of voting stock (including the Series A Preferred Stock and Series B Preferred Stock), voting together as a single class, are entitled to elect directors of the Company, the Stockholders shall vote all of their respective Shares so as to elect (i) So one (1) director appointed by ABV (the “ABV Director”) so long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred it holds at least an aggregate of 750,000 Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined or Preferred Stock on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those basis, which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
initially be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; (ii) So ▇▇▇ ▇▇▇▇▇▇▇ (so long as he remains Employed by the Purchasers and their respective Affiliates beneficially own Company (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stockas defined below)), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers two (2) directors appointed by ▇▇▇ ▇▇▇▇▇▇▇, and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as one (1) person who is not employed by the Purchasers Company and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% who is nominated by mutual agreement of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" ▇▇▇ ▇▇▇▇▇▇▇ and the other members of Board members. If ▇▇▇ ▇▇▇▇▇▇▇ resigns from the Board of Directors of the Company (other than the Jointly-Selected Director (as hereinafter defined))Company, the "Company Directors"), one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors").he will retain
Appears in 2 contracts
Sources: Voting Agreement (Anterios Inc), Voting Agreement (Anterios Inc)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board: 8
(a) Subject One person designated by [Name of Investor] (the “Name of Investor Designee”), which individual shall initially be [_____________], for so long as such Stockholders and their Affiliates continue to own beneficially at least [______] shares of Common Stock of the provisions Company (including shares of Sections 6.02(b) Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and 6.02(d):the like.
(ib) So One person designated by [Name of 2d Investor] (the “Name of 2d Investor Designee”), which individual shall initially be [_____________] for so long as such Stockholders and their Affiliates continue to own beneficially at least [__________] shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(c) [Alternative 1: For so long as the Purchasers and their respective Affiliates beneficially own Key Holders hold at least [____] shares of Common Stock (determined in accordance with Rule 13d-3 under as adjusted for any stock splits, stock dividends, recapitalizations or the Exchange Act) Series B-1 Preferred Shareslike), Series B-2 Preferred one individual designated by the holders of a majority of the Shares and/or Conversion of Common Stock [held by the Key Holders], which individual shall initially be [___________]; [Alternative 2: [name of Key Holder], for so long as [name of Key Holder] [remains an [officer] [employee] of the Company] [holds at least [_____] Shares which represent 50(as adjusted for stock splits, stock dividends, recapitalizations or the like)] [holds at least [_____]% of the outstanding capital stock of the Company on an as-converted-to-Common Stock basis] [, except that if [name of Key Holder] declines or more is unable to serve, his or her successor shall be designated by [name of alternate Key Holder] [the holders of a majority of the shares of Company Common Stock purchased hereunder on of the Closing Date Company]; 9
(determined on an as-converted basis assuming conversion d) The Company’s Chief Executive Officer, who shall initially be [_____] (the “CEO Director”), provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion the Company, each of all Series B-1 Preferred the Stockholders shall promptly vote their respective Shares (including those which are Conversion Sharesi) into Company Common Stock), to remove the Purchaser Representative shall have former Chief Executive Officer from the right to nominate for election on behalf Board if such person has not resigned as a member of the Purchasers Board and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long to elect such person’s replacement as Chief Executive Officer of the Company as the Purchasers and their respective Affiliates beneficially own new CEO Director; and
(determined in accordance with Rule 13d-3 under the Exchange Acte) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more One individual not otherwise an Affiliate (but less 50%defined below) of the shares Company or of Company Common Stock purchased hereunder on any Investor who is [mutually acceptable to (i) the Closing Date (determined on an as-converted basis assuming conversion holders of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf a majority of the Purchasers and such Affiliates two directors to serve on Shares held by the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which Key Holders who are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition then providing services to the right to nominate for election directors under clause (i)Company as officers, employees or consultants and (ii) or (iii) above, as applicable (the directors so nominated, holders of a majority of the "WCAS Directors" and Shares held by the Investors][mutually acceptable to the other members of the Board]; and To the extent that any of clauses (a) through (d) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Company’s Restated Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directorssame management company with, the "Non-WCAS Directors")such Person.
Appears in 1 contract
Sources: Voting Agreement
Board Composition. Each Stockholder agrees to vote, or cause to be voted (to the extent so entitled), all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject Three (3) persons designated by PTTCH (the “PTTCH Designees”) as the Class A Common Directors, for so long as such Stockholder and its Affiliates continue to own beneficially at least ten percent (10%) of the number of shares of Class A Common Stock it acquires pursuant to the provisions Purchase Agreement (subject to appropriate adjustment in the event of Sections 6.02(b) and 6.02(d):
(i) So long as any stock dividend, stock split, combination or other similar recapitalization with respect to the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Class A Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers which individuals will initially be Puntip Oungpasuk, Narongsak Jivakanun and such Affiliates three directors to serve on the Company's Board of Directors.Thitipong Jurapornsiridee;
(iib) So One (1) person designated by ▇▇▇▇▇▇▇ LDK, LLC (the “Norwood Designee”), for so long as the Purchasers such Stockholder and their respective its Affiliates continue to own beneficially own at least ten percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 5010%) of the number of shares of Company Class B Common Stock purchased hereunder on it acquires pursuant to the Closing Date Conversion Agreement (determined on an as-converted basis assuming conversion subject to appropriate adjustment in the event of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company any stock dividend, stock split, combination or other similar recapitalization with respect to the Class B Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.which individual will initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇;
(iiic) So One (1) person designated by Plainfield Direct LLC (the “Plainfield Designee”), for so long as the Purchasers such Stockholder and their respective its Affiliates continue to own beneficially own at least ten percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 510%) of the number of shares of Company Class B Common Stock purchased hereunder on it acquires pursuant to the Closing Date Conversion Agreement (determined on an as-converted basis assuming conversion subject to appropriate adjustment in the event of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company any stock dividend, stock split, combination or other similar recapitalization with respect to the Class B Common Stock), which individual will initially be ▇▇▇▇▇ ▇▇▇▇▇▇;
(d) One (1) person designated by Green Chem Second Edition, LLC (the Purchaser Representative “Green Chem Designee”), for so long as such Stockholder and its Affiliates continue to own beneficially at least ten percent (10%) of the number of shares of Class B Common Stock it acquires pursuant to the Conversion Agreement (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Class B Common Stock), which individual will initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; and
(e) One (1) person as the Independent Director who will be an individual not otherwise an Affiliate of the Company who is mutually acceptable to and nominated by PTTCH, on the one hand, and ▇▇▇▇▇▇▇ LDK, LLC, Plainfield Direct LLC and Green Chem Second Edition, LLC, on the other hand, and who shall have the right to nominate for election on behalf appropriate expertise and experience in the relevant industry that can enhance the business of the Purchasers and such Affiliates one director to serve on Company. To the Company's extent that any of clauses (a) through (e) above shall not be applicable, any member of the Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined who would otherwise have been designated in accordance with Rule 13d-3 under the Exchange Act) at least 5% of terms thereof shall instead be voted upon by all the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Company’s Restated Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an "Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directorssame management company with, the "Non-WCAS Directors")such Person.
Appears in 1 contract
Sources: Voting Agreement (Myriant Corp)
Board Composition. (a) Subject to the provisions of Sections 6.02(bSection 9(b) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more paragraph 9 of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock)Schedule D, the Purchaser McCain Family Parties acting through the McCain Family Representative shall have the right to cause the Board to nominate for election to the Board, on behalf any date on which such nominations are made by the Board, a number of nominees who are qualified to be directors of the Purchasers Company under applicable law proportionate to the aggregate number of Shares beneficially owned, or over which control or direction is exercised, by the McCain Family Parties from time to time (each such nominee, an “McCain Nominee”); provided that, notwithstanding any other provision of this Agreement, where the calculation for determining the number of McCain Nominees pursuant to this Section 3 provides for a number of McCain Nominees that would be greater than or equal to the number Non-McCain Nominees, the number of McCain Nominees shall be capped such that the Non-McCain Nominees shall always constitute a majority of the directors on the Board (the “McCain Nominee Cap”). The calculation of any proportionate number of directors which results in a fraction: (i) in excess of one-half shall be rounded up to the next whole number; or (ii) equal to or less than one-half shall be rounded down to the next whole number. At any time the numerator for calculating the proportionate ownership interest of Shares beneficially owned, or over which control or direction is exercised by the McCain Family Parties shall be the aggregate number of issued and outstanding Shares beneficially owned, or over which control or direction is exercised, by the McCain Family Parties at such Affiliates time, and the denominator shall be the number of issued and outstanding Shares at such time. By way of example where the size of the Board is set at 10 and the McCain Family Parties’ proportionate ownership interest of Shares is equal to:
(i) 35.78%, then the McCain Family Parties shall be entitled to nominate four directors (rounding up). If the size of the Board is set at nine, then the McCain Family Parties shall be entitled to nominate three directors to serve on the Company's Board of Directors.(rounding down); or
(ii) So long 50%, then this Section 3 would provide that the McCain Family Parties would be entitled to nominate four directors; although the calculations pursuant to this Section 3 would otherwise result in the McCain Family Parties being entitled to nominate five directors (which would result in an equal number of McCain Nominees and Non-McCain Nominees on the Board), the number of McCain Nominees would be reduced to four as a result of the Purchasers McCain Nominee Cap (which would result in a majority of Non-McCain Nominees on the Board).
(b) The Company shall take any and their respective Affiliates beneficially own all steps necessary and advisable to: (determined i) nominate each McCain Nominee as a director of the Company; (ii) recommend to the Company’s shareholders that the shareholders vote in favour of such McCain Nominees; and (iii) subject to the Voting PoA, cause all proxies received by the Company to be voted in the manner specified by such proxies.
(c) The Company shall at least 60 days before the scheduled mailing of the management proxy circular notify the McCain Family Representative of the number of directors proposed to be elected at the next meeting of the shareholders of the Company. The selection of nominees to be nominated by the McCain Family Parties pursuant to Section 3(a) will be evidenced by a written instrument delivered by the McCain Family Representative to the Corporate Governance Committee of the Board at least 35 days before the scheduled mailing of the management proxy circular of the Company in which the nominees will be named, and the Corporate Governance Committee of the Board shall promptly review the qualifications of the nominees selected by the McCain Family Representative and notify the McCain Family Representative within 15 days after receipt of such written instrument if it disapproves, acting reasonably, of any of them. The McCain Family Parties will replace any nominee not approved by the Corporate Governance Committee of the Board acting reasonably with another proposed nominee, evidenced by written instrument delivered by the McCain Family Representative to the Corporate Governance Committee of the Board, and the Corporate Governance Committee of the Board shall promptly, in a good faith endeavour to complete the selection before the scheduled management proxy circular mailing date, notify the McCain Family Representative if it disapproves, acting reasonably, of the replacement nominee, and so on until the McCain Family Representative and the Corporate Governance Committee of the Board, acting in good faith, agree to the selection of the nominees of the McCain Family Parties. Failure by the Corporate Governance Committee of the Board to notify the McCain Family Representative of its approval or disapproval of the McCain Family Parties’ selections in accordance herewith shall be deemed to constitute approval by the Corporate Governance Committee of the Board of such selections.
(d) All directors other than those nominated pursuant to Section 3(a) will be identified by the Corporate Governance Committee of the Board (or such other committee of the Board that has responsibility for the nomination of directors from time to time) and nominated by the Company and shall be independent of, and not have a material relationship with, management of the Company or any McCain Family Party or any Person acting jointly or in concert with any such Persons (each such director, an “independent director”) and shall, in addition, be an “independent director” for the purposes of National Instrument 52-110 - Audit Committees (together, the “Non-McCain Nominees”).
(e) Each nominee for election to the Board hereunder shall be qualified to be a director of the Company under applicable law.
(f) The McCain Family Representative and each McCain Family Party shall complete and cause the management forms of proxy in respect of all Shares of the Company that he, she or it is entitled to vote at any meeting of shareholders (for clarity, taking into account for this purpose the provisions of paragraph 7 of Schedule D) at which directors are to be elected to be validly executed and delivered to management of the Company to be voted at any such meeting (or any adjournment thereof) in favour of the election of each of the nominees nominated in accordance with Rule 13d-3 under Section 3(a) and Section 3(d), and to not withdraw those forms of proxy.
(g) Notwithstanding the Exchange Act) Series B-1 Preferred Sharesforegoing provisions of this Section 3, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) if in connection with any meeting of the shares shareholders of the Company: (i) the Board has determined in good faith, that it is in the best interests of the Company Common Stock purchased hereunder on to select nominees for election to the Closing Date Board at the next meeting of shareholders other than in accordance with Section 3(d); and (determined on an as-converted basis assuming conversion ii) the Board has provided written notice to the McCain Family Representative, not less than 45 days prior to the meeting of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those the Company’s shareholders at which are Conversion Sharesthe Board proposes to nominate directors not selected in accordance with Section 3(d) into Company Common Stockidentifying the nominees that the Board proposes to nominate not in accordance with Section 3(d), the Purchaser Representative Board may select nominees other than in accordance with Section 3(d) and in connection with any such meeting, the McCain Family Parties shall have not be required to vote in favour of the right Board’s nominees, provided that: (A) if the Company has individual voting for each director (and not slate voting) and if majority voting requirements apply to that election of directors (a requirement, whether by policy or by law, that, if any one or more director nominees in an uncontested election fails to receive more votes in favour of their election than votes against or withheld from their election (as the case may be), such director nominee(s) may be required to resign or will not be elected as a matter of law (as the case may be)), the McCain Family Parties shall be required to vote for any nominees selected in accordance with Section 3(d); and (B) the McCain Family Parties shall not be required to vote for any nominees not selected in accordance with Section 3(d) and may nominate for election on behalf alternative nominees to the nominees that were not selected in accordance with Section 3(d). If the Board selects all nominees for election to the Board at any subsequent meeting of shareholders in accordance with Section 3(a) and Section 3(d) , the McCain Family Parties shall be required to vote in favour of the Purchasers Board’s nominees, provided that the McCain Family Parties may vote for any director who was nominated by the McCain Family Representative following receipt of notice contemplated in this Section 3(g) and such Affiliates two shall vote in favour of that number of the Board’s nominees up the maximum number of directors to serve on the Company's Board of Directorsbe elected at any such meeting.
(iiih) So long as In the Purchasers and their respective Affiliates beneficially own event that one third or more of the directors who are elected at a meeting of shareholders (determined other than those nominated in accordance with Rule 13d-3 under the Exchange ActSection 3(a)) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stockdo not qualify for nomination pursuant to Section 3(d), the Purchaser Representative McCain Family Parties shall have not thereafter be required to comply with the right to nominate for election on behalf provisions of the Purchasers and such Affiliates one director to serve on the Company's Board of Directorsthis Section 3.
(ivi) So long Notwithstanding the foregoing, if there is a Contested Election, the McCain Family Parties shall not be required to comply with the provisions of Section 3(f) or Section 3(g) during the Contested Election and shall not be required to comply with the provisions of Section 3(f) or Section 3(g) after a Contested Election if the outcome of the Contested Election has resulted in the removal and/or replacement of any of the McCain Nominees or one third or more of the directors who qualify for nomination pursuant to Section 3(d) serving on the Board immediately prior to the Contested Election. For the purposes hereof, “Contested Election” shall mean any action taken by a Person (other than MHM, his Affiliates, the McCain Family Parties or Persons acting jointly or in concert with MHM or the McCain Family Parties) to, directly or indirectly: (i) engage in, participate in, or in any way initiate, directly or indirectly, any “solicitation” (as such term is defined in the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Canada Business Corporations Act) at least 5% of proxies or consents, with respect to the voting of any shares of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), Company; (ii) initiate, propose or otherwise engage in a solicitation of shareholders of the Company to vote any shares of the Company on any matter; or (iii) aboveseek, as applicable alone or in concert with others: (A) to requisition or call a meeting of shareholders of the directors so nominatedCompany, (B) to obtain representation on, or nominate or propose the nomination of any candidate for election to, the "WCAS Directors" and Board except as otherwise set forth in this Agreement, or (C) to effect the other members removal of any member of the Board or otherwise alter the composition of Directors the Board, and, in each such case, there is a reasonable prospect that the action might result in a removal and/or replacement of (x) any of the McCain Nominees, or (y) one third or more of the directors who qualify for nomination pursuant to Section 3(d) serving on the Board immediately prior to the Contested Election. For clarity, a Contested Election shall not occur as a result of the Company (other than the Jointly-Selected Director (as hereinafter defined)), the "Company Directors"), one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) complying or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together having complied with the Company Directors, the "Non-WCAS Directors")its obligations under Section 3.
Appears in 1 contract
Sources: Governance Agreement
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control or the right to direct voting, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject to One (1) person designated by Soleus Private Equity Fund I, L.P. (“Soleus”), which individual shall initially be ▇▇▇ ▇▇▇▇ (the provisions of Sections 6.02(b) and 6.02(d):
(i) So “Soleus Designee”), for so long as the Purchasers Soleus and their respective its Affiliates continue to own beneficially own at least twenty-five percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming including shares of Common Stock issued or issuable upon conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion SharesStock) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf purchased by Soleus as of the Purchasers date hereof, which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and such Affiliates two directors to serve on the Company's Board of Directorslike.
(iiib) So One (1) person designated by HBM Healthcare Investments (Cayman) Ltd. (“HBM”), which individual shall initially be Dr. Priyanka Belawat (the “HBM Designee”), for so long as the Purchasers HBM and their respective its Affiliates continue to own beneficially own at least twenty-five percent (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming including shares of Common Stock issued or issuable upon conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion SharesStock) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf purchased by HBM as of the Purchasers date hereof, which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and such Affiliates one director to serve on the Company's Board of Directorslike.
(ivc) So One (1) person to be designated by the holders of a majority of the Series D Preferred Stock after the Initial Closing (as defined in the Purchase Agreement), (the “Series D Designee” and collectively with the Soleus Designee and the HBM Designee, the “Series D Designees”), for so long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 525% of the shares of Company Common Series D Preferred Stock purchased hereunder outstanding as of the date hereof (determined subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like) remain outstanding.
(d) ▇▇▇▇▇ ▇▇▇▇▇, for so long as ▇▇▇▇▇ ▇▇▇▇▇ remains an officer of the Company.
(e) ▇▇▇ ▇▇▇▇▇, for so long as ▇▇▇ ▇▇▇▇▇ remains an officer or Chairman of the Company.
(f) One (1) person who previously served on an as-converted basis assuming conversion the board of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion managers of all Series B-1 Preferred Shares the Company’s predecessor, BioAtla, LLC, a Delaware limited liability company, as designated by ▇▇▇ ▇▇▇▇▇, which individual shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i“Legacy Designee”), provided, that if the Legacy Designee is no longer serving as a director, any replacement of the Legacy Designee (iiwhich replacement shall not be required to have previously served on the board of managers of BioAtla, LLC) must be approved by two (2) of the three (3) Series D Designees, and provided further, that if two (2) of the three (3) Series D Designees do not so approve or affirmatively disapprove of any Legacy Designee within thirty (iii30) above, as applicable (the directors so nominateddays after notice of such Legacy Designee’s nomination, the "WCAS Directors" Legacy Designee shall be designated by ▇▇▇ ▇▇▇▇▇ without any approval by the Series D Designees.
(g) One (1) person who is mutually acceptable to ▇▇▇ ▇▇▇▇▇ and at least two (2) of the other members three (3) Series D Designees, which designation shall be unfilled as of the date hereof. To the extent that any of clauses (a) through (g) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the Stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors"), one Certificate of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")Incorporation.
Appears in 1 contract
Sources: Voting Agreement (BioAtla, Inc.)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject One person designated by Sake Ventures, LLC and Rice Wine Ventures, LLC (collectively, “CJF”) as the Series C Director, which individual shall initially be ▇▇▇▇▇▇ ▇▇▇▇▇▇, for so long as such Stockholder and its Affiliates continue to own beneficially at least 4,046,315 shares of Common Stock of the provisions Company (including shares of Sections 6.02(bCommon Stock issued or issuable upon conversion of Series C Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(b) One person designated by Shining as the Series B Director, which individual shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇, for so long as such Stockholder and its Affiliates continue to own beneficially at least 3,435,122 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series B Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like. For purposes of this Agreement, “Shining” shall collectively refer to Shiningwine Limited (BVI), Dreamer Pathway Limited (BVI) and 6.02(d):Dream Catcher Investments Limited (BVI).
(ic) So One person designated by Bessemer as the Series A Director, which individual shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇, for so long as Bessemer and its Affiliates continue to own beneficially at least 2,978,934 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series A Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(d) One person designated by CrossCut Ventures 2, LP as the Series Seed Director, which individual shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ for so long as such Stockholders and their Affiliates continue to own beneficially at least 1,733,404 shares of Common Stock of the Company (including shares of Common Stock issued or issuable upon conversion of Series Seed Preferred Stock), which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like.
(e) For so long as the Purchasers and their respective Affiliates beneficially own Key Holders who are then, or any Key Holder entity that is owned, controlled or established for estate planning purposes and/or for the benefit of any Founder who is then, providing services to the Company as officers, employees or consultants collectively hold at least 1,000,000 shares of Common Stock (determined in accordance with Rule 13d-3 under as adjusted for any stock splits, stock dividends, recapitalizations or the Exchange Act) Series B-1 Preferred Shareslike), Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more two individuals designated by the holders of a majority of the shares Shares of Company Common Stock purchased hereunder on held by the Closing Date (determined on an asKey Holders who are then, or held by any Key Holder entity that is owned, controlled or established for estate planning purposes and/or for the benefit of any Founder who is then, providing services to the Company as full-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval time officers, employees or consultants as the Common Directors, which individuals shall initially be ▇▇▇▇▇ ▇▇▇▇▇ and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; and
(iif) So long One individual not otherwise an Affiliate (as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%defined below) of the shares Company or of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and any Investor who is unanimously approved by the other members of the Board, which individual shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇. To the extent that any of clauses (a) through (f) above shall not be applicable, any member of the Board of Directors who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by all the stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Company’s Restated Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directorssame management company with, the "Non-WCAS Directors")such Person.
Appears in 1 contract
Sources: Voting Agreement (Winc, Inc.)
Board Composition. During the term of this Section 2.6 and subject to Section B.6 of Article IV of the Company’s Restated Certificate of Incorporation (a) Subject to the provisions “Certificate of Sections 6.02(bIncorporation”) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more relevant sections of the Company’s Bylaws (if any), each Investor agrees to vote all shares of Company capital stock now or hereafter directly or indirectly acquired (of record or beneficially) by such Investor, in such manner as may be necessary to elect (and maintain in office) as members of the Company’s Board of Directors, the following individuals:
(1) three (3) individuals designated by the Investors of Series B Preferred Stock from time to time (each a “Series B Designee”), as follows:
a) one (1) individual designated by Versant Ventures; so long as Versant Ventures holds at least 1,000,000 shares of Series B Preferred Stock (as appropriately adjusted for all stock splits, dividends, combinations, subdivisions, recapitalizations and the like) (or Common Stock purchased hereunder on issued upon conversion thereof);
b) one (1) individual designated by K▇▇▇▇▇▇ P▇▇▇▇▇▇ C▇▇▇▇▇▇▇ & B▇▇▇▇ (“KPCB”); so long as KPCB holds at least 1,000,000 shares of Series B Preferred Stock (as appropriately adjusted for all stock splits, dividends, combinations, subdivisions, recapitalizations and the Closing Date like) (determined on an as-converted basis assuming or Common Stock issued upon conversion thereof) ;
c) one (1) individual designated by B▇▇▇▇/Tisch Investments; so long as B▇▇▇▇/T▇▇▇▇ Investments holds at least 1,000,000 shares of Series B Preferred Stock (as appropriately adjusted for all stock splits, dividends, combinations, subdivisions, recapitalizations and the like) (or Common Stock issued upon conversion thereof);
(2) one (1) individual designated by a majority of the holders of the Common Stock of the Company from time to time (the “Common Stock Designee”);
(3) one (1) individual jointly designated by TPG Biotechnology Partners, L.P. and TPG Ventures, L.P.; so long as there are outstanding at least 1,000,000 shares of Series B-2 D Preferred Shares into Stock (as appropriately adjusted for all stock splits, dividends, combinations, subdivisions, recapitalizations and the like) (or Common Stock issued upon conversion thereof) (the “Series B-1 D Designee”);
(4) one (1) individual designated by a majority of the holders of the Series E Preferred Shares Stock of the Company from time to time (the “Series E Designee”);
(5) in the event that holders of the Series C Preferred Stock become entitled, pursuant to the Company’s Restated Certificate of Incorporation, to elect one member of the Board of Directors, and so long as Incyte Genomics, Inc. (“Incyte”) holds at least 1,000,000 shares (as appropriately adjusted for all stock splits, dividends, combinations, subdivisions, recapitalizations and the like) of Series C Preferred Stock (or Common Stock issued upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stockthereof), the Purchaser Representative shall have the right to nominate for election on behalf number of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors shall be increased by one and Incyte shall be entitled to designate the individual to fill such newly created vacancy;
(6) that remaining number of individuals authorized to be elected as directors pursuant to the Company’s Bylaws or Certificate of Incorporation designated by a majority of the Company (other than the Jointly-Selected Director (as hereinafter defined)), the "Company Directors"), one holders of the members Preferred Stock and the Common Stock, voting together as a single class (with the Preferred Stock voting on an as-converted basis) (each such director, an “Investors’ Designee”). For purposes of this Agreement: (i) any individual who is designated for election to the Company’s Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), the foregoing provisions of this Section 2.6(a) is hereinafter referred to as a “Board Designee”; and (ii) any individual, entity, or (iiigroup of individuals and/or entities who has the right to designate one or more Board Designees for election the Company’s Board of Directors pursuant to the foregoing provisions of this Section 2.6(a) above, is hereinafter referred to as a “Designator” or as “Designators,” as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors").
Appears in 1 contract
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board of Directors:
(a) Subject to as a Series D Director (as defined in the provisions of Sections 6.02(b) and 6.02(d):
Restated Charter), (i) So one individual (the “Series D Designee”) designated by Revolution Growth II, LP (“Revolution Growth”) so long as Revolution Growth and its Affiliates continue to own at least 4,000,000 shares of Series D Preferred Stock (as adjusted for stock splits, stock dividends and similar recapitalization events), who shall initially be ▇▇▇▇▇ ▇▇▇▇, or (ii) if Revolution Growth is no longer entitled to designate the Purchasers Series D Designee, one independent member of the Board of Directors not otherwise an Affiliate of the Company or any Stockholder designated by a majority of the other directors then in office;
(b) as a Series D Director, one independent member of the Board of Directors not otherwise an Affiliate of the Company or any Stockholder (unless otherwise approved by a majority of the other directors then in office (excluding the Series D Designee)) (i) designated by Revolution Growth so long as Revolution Growth and its Affiliates continue to own at least 4,000,000 shares of Series D Preferred Stock (as adjusted for stock splits, stock dividends and similar recapitalization events), (ii) approved (or, if Revolution Growth is no longer entitled to designate such Series D Director, designated) by a majority of the other directors then in office (excluding the Series D Designee) in their respective Affiliates beneficially own reasonable discretion and (determined iii) for which the Founders may propose candidates for consideration, who shall initially be ▇▇▇▇▇ ▇▇▇▇▇▇▇;
(c) as the Preferred Director (as defined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred SharesRestated Charter), one individual designated by holders of a majority of the outstanding shares of the Company’s Common Stock, Series B-2 A Preferred Shares and/or Conversion Shares which represent 50% or more of Stock, Series B Preferred Stock and Series C Preferred Stock held by the shares of Company Common Stock purchased hereunder on the Closing Date (determined Founder Holders, voting together as a single class on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares basis, who shall initially be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇;
(including those which are Conversion Sharesd) into Company as the Common StockDirectors (as defined in the Restated Charter), the Purchaser Representative shall have the right to nominate for election on behalf three individuals designated by holders of a majority of the Purchasers and such Affiliates three directors to serve on outstanding shares of Common Stock held by the Company's Board of Directors.Founder Holders, voting together as a separate class, who shall initially be the Founders;
(iie) So long as a Joint Director (as defined in the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common StockRestated Charter), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members independent member of the Board of Directors not otherwise an Affiliate of the Company (other than the Jointly-Selected Director (as hereinafter defined)), the "Company Directors"), one or any Stockholder designated by a majority of the members other directors then in office, who shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇; and
(f) as Joint Directors, up to three individuals designated by holders of the Board of Directors majority of the Company not nominated outstanding shares of Common Stock held by the Purchaser Representative pursuant to clause (i)Founder Holders, (ii) or (iii) abovevoting together as a separate class, as applicablewho shall initially be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, shall be a person mutually agreed upon by the Purchaser Representative ▇▇▇▇ ▇▇▇▇▇▇ and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
Appears in 1 contract
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject to the provisions of Sections 6.02(b) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the at least [***] shares of Company Common Series Seed Preferred Stock purchased hereunder on are outstanding, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, one individual designated from time to time by [***], for so long as such Stockholder and its Affiliates (as defined below) continue to own beneficially at least [***] issued and outstanding shares of Series Seed Preferred Stock, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, which individual shall initially be [***] and which director shall be the Closing Date (determined on an as-converted basis assuming conversion of all “Series B-2 Seed Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.Director”;
(iib) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the at least [***] shares of Company Common Series A Preferred Stock purchased hereunder on are outstanding, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, one individual designated from time to time by [***] (together with its Affiliates, successors and assigns, “[***]”) for so long as such Stockholder and its Affiliates (as defined below) continue to own beneficially at least [***] issued and outstanding shares of Series A Preferred Stock, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, which individual shall initially be [***] and which director shall be the Closing Date (determined on an as-converted basis assuming conversion of all “Series B-2 A Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.Director”;
(iiic) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least [***] shares of Series B-1 Preferred Shares, Stock and Series B-2 Preferred Shares and/or Conversion Shares Stock are outstanding, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, one individual designated from time to time by [***] for so long as such shares represent less than 25% Stockholder and its Affiliates (but more than 5%as defined below) of the continue to own beneficially at least [***] issued and outstanding shares of Company Common Series B-1 Preferred Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all and Series B-2 Preferred Shares into Series B-1 Stock, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, which individual shall initially be [***] and which director shall be the “[***] B Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.Director”;
(ivd) So long as (i) no ETHZ Forfeiture Event (as defined in the Purchasers Purchase Agreement) has occurred with respect to ETHZilla corporation, a Delaware corporation, (together with its Affiliates, successors and their respective assigns, “ETHZ”) and (ii) ETHZ and its Affiliates continue to own beneficially at least [***] issued and outstanding shares of Series B-3 Preferred Stock, which number is subject to appropriate adjustment for all stock splits, reverse stock splits, dividends, combinations, substitutions, reclassifications, recapitalizations and similar transactions, one individual designated from time to time by ETHZ, which individual shall initially be [***] and which director shall be the “ETHZ B Preferred Director”;
(e) One individual designated from time to time by ▇▇▇ ▇▇▇▇▇▇▇▇ (“▇▇. ▇▇▇▇▇▇▇▇”), for so long as ▇▇. ▇▇▇▇▇▇▇▇ continues to own beneficially at least [***] issued and outstanding shares of Common Stock, which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and similar transactions, which individual shall initially be ▇▇. ▇▇▇▇▇▇▇▇ and which director shall be a “Common Director”; and
(determined f) One individual designated from time to time by ▇▇▇▇▇▇ ▇▇▇▇ (“▇▇. ▇▇▇▇”), for so long as ▇▇. ▇▇▇▇ continues to own beneficially at least [***] issued and outstanding shares of Common Stock, which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and similar transactions, which individual shall initially be ▇▇. ▇▇▇▇ and which director shall be a Common Director. To the extent that any of clauses (a) through (f) above shall not be applicable, any member of the Board who would otherwise have been designated in accordance with Rule 13d-3 under the Exchange Act) at least 5% of terms thereof shall instead be voted upon by all the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors stockholders of the Company (other than the Jointly-Selected Director (as hereinafter defined))entitled to vote thereon in accordance with, and pursuant to, the "Company Directors")Certificate. For purposes of this Agreement, one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer, director or trustee of such Person, or any venture capital fund or registered investment company now or hereafter existing that is controlled by one or more general partners, managing members or investment advisers of, or shares the Purchaser Representative same management company or investment adviser with, such Person. For purposes of this Agreement, the term “control” when used with respect to any Person shall mean the power to direct the management or policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the Company Directors (terms “controlling,” “controlled by” and “under common control with” shall have meanings correlative to the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")foregoing.
Appears in 1 contract
Sources: Voting Agreement (ETHZilla Corp)
Board Composition. (a) Subject to the provisions of Sections 6.02(b) and 6.02(d):
(i) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50Shareholders holding 62.5% or more of the shares of Company outstanding Insmed Common Stock purchased hereunder on the Closing Date and Insmed Preferred Stock (determined on an as-as converted to Insmed Common Stock basis assuming conversion of the Shareholder Approval) then held by all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares Shareholders (including those which are Conversion Shares) into Company Common Stockthe “Designating Shareholders”), the Purchaser Representative shall have the right to nominate for election on behalf to the Board one (1) director (the “Designee”) at the first annual or special meeting of shareholders of Insmed after the Effective Time at which the Company Nominee (as defined in the Merger Agreement) or any director appointed to replace such Company Nominee is subject to election and at any subsequent annual or special meeting of shareholders of Insmed at which such Designee or any director appointed to replace such Designee is subject to election, and Insmed shall, at any such annual or special meeting of shareholders of Insmed, subject to the fulfillment of the Purchasers requirements set forth in Section 2.1(b), nominate the Designee for election to the Board and use commercially reasonable efforts to cause the Designee to be elected as a director of the Board. Notwithstanding the foregoing in this Section 2.1(a), the Designating Shareholders shall cease to have any right to nominate the Designee for election to the Board following the earliest of (i) the five (5) year anniversary Effective Time, (ii) the conversion of the Insmed Preferred Stock into Insmed Common Stock and (iii) such time that the Shareholders and their Affiliates three directors (including any limited partners, members or other similar equity holders of the forgoing that receive Insmed Preferred Stock or Common Stock as a distribution pursuant to serve on such holder’s limited partnership agreement, limited liability company agreement, operating agreement or similar governing document) collectively no longer hold at least 6,484,705 shares of Insmed Common Stock issued pursuant to the Company's Board Merger and at least 22,936,473 shares of DirectorsInsmed Preferred Stock issued pursuant to the Merger (the “Minimum Share Amount”), provided that the Minimum Share Amount shall be appropriately adjusted for any stock dividends, splits, reverse splits, combinations recapitalizations and the like occurring after the date of this Agreement.
(b) Any designee for election to the Board in accordance with this Section 2 shall (i) be reasonably acceptable to the Board and the Board’s Corporate Governance Committee (the “Governance Committee”), it being agreed that ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. is so acceptable, and (ii) So shall comply in all respects with Insmed’s corporate governance guidelines and Insmed’s code of business conduct and ethics as in effect from time to time. The Designating Shareholders shall notify Insmed of any proposed Designee in writing no later than the latest date on which shareholders of Insmed may make nominations to the Board in accordance with the Bylaws, together with all information concerning such nominee required to be delivered to Insmed by the Bylaws then in effect and such other information reasonably requested by Insmed; provided that in each such case, all such information is generally required to be delivered to Insmed by the other outside directors of Insmed (the “Nominee Disclosure Information”); provided, further that in the event the Designating Shareholders fail to provide any such notice, the Designee shall be the Person then serving as the Designee as long as the Purchasers and their respective Affiliates beneficially own Designating Shareholders provide the Nominee Disclosure Information to Insmed promptly upon request by Insmed.
(determined in accordance with Rule 13d-3 under c) For so long as the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative Designated Shareholders shall have the right to nominate the Designee for election on behalf to the Board, Insmed shall invite a representative of the Purchasers and such Affiliates two directors Designated Shareholders to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) attend all meetings of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval notices, minutes, consents and conversion of other materials that it provides to its directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock)information so provided; and, the Purchaser Representative shall have provided further, that Insmed reserves the right to nominate for election on behalf of withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the Purchasers attorney-client privilege between Insmed and such Affiliates one director to serve on the Company's Board of Directorsits counsel.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors of the Company (other than the Jointly-Selected Director (as hereinafter defined)), the "Company Directors"), one of the members of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause (i), (ii) or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors").
Appears in 1 contract
Sources: Shareholders’ Agreement (Insmed Inc)
Board Composition. Each Stockholder agrees to vote, or cause to be voted, all Shares owned by such Stockholder, or over which such Stockholder has voting control, from time to time and at all times, in whatever manner as shall be necessary to ensure that at each annual or special meeting of stockholders at which an election of directors is held or pursuant to any written consent of the stockholders, the following persons shall be elected to the Board:
(a) Subject one individual designated by [***], which individual shall initially be [***], to serve as one of the two (2) Series A Directors, for so long as [***] and its Affiliates collectively continue to own beneficially at least 655,615 shares of Series A Preferred Stock (and/or Common Stock issued or issuable upon conversion of Series A Preferred Stock) that [***] originally acquired from the Company, which number shall be subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like;
(b) one individual designated by [***], which individual shall initially be [***], to serve as the remaining Series A Director for so long as [***] and its Affiliates collectively continue to own beneficially at least 252,880 shares of Series A Preferred Stock (and/or Common Stock issued or issuable upon conversion of Series A Preferred Stock) that [***] originally acquired from the Company, which number shall be subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like;
(c) one individual designated by iBio, which individual shall initially be T▇▇ ▇▇▇▇▇, to serve as the Series A-2 Director for so long as iBio and its Affiliates collectively continue to own beneficially at least 1,500,000 shares of Series A-2 Preferred Stock (and/or Common Stock issued or issuable upon conversion of Series A-2 Preferred Stock) that IBio originally acquired from the Company, which number shall be subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the like;
(d) one individual, who is not an employee of the Company or its Affiliates and not an Affiliate of the Company (or its Affiliates) or any stockholder of the Company, nominated by the Company’s Chief Executive Officer and mutually acceptable to the provisions other holders of Sections 6.02(b) a majority of the issued and 6.02(d):outstanding shares of Series A Preferred Stock and Series A-2 Preferred Stock (voting together and as a separate class), which individual shall initially be [***];
(ie) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directors.
(ii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares which represent 25% or more (but less 50%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates two directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of ’s Chief Executive Officer appointed by the Board of Directors of the Company, which individual shall initially be I▇▇▇▇ ▇▇▇▇▇▇ (the “CEO Director”), provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of the Company, each of the Stockholders shall promptly vote their respective Shares (i) to remove the former Chief Executive Officer from the Board if such person has not resigned as a member of the Board; and (ii) to elect such person’s replacement as Chief Executive Officer of the Company as the new CEO Director.
(other than f) To the Jointly-Selected Director extent that clauses (a) or (b) in this Subsection 1.2 shall not be applicable as hereinafter defineda result of a lack of sufficient Share ownership of either [Stockholder One] (with respect to Section 1.2(a)) or [Stockholder Two] (with respect to Section 1.2(b)) any member of the Board who would otherwise have been designated in accordance with the terms thereof shall instead be voted upon by, with respect to each of Section 1.2(a), Section 1.2(b), an 1.2(c), the "Company Directors"), holders of a majority of the shares of Series A Preferred Stock as one of the members Series A Directors (as defined in the Certificate) in accordance with, and pursuant to, the Certificate. For purposes of the Board of Directors of the Company not nominated by the Purchaser Representative pursuant to clause this Agreement, an individual, firm, corporation, partnership, association, limited liability company, trust or any other entity (i)collectively, (iia “Person”) or (iii) above, as applicable, shall be a person mutually agreed upon deemed an “Affiliate” of another Person who, directly or indirectly, controls, is controlled by or is under common control with such Person, including, without limitation, any general partner, managing member, officer or director of such Person or any venture capital fund now or hereafter existing that is controlled by one or more general partners or managing members of, or shares the Purchaser Representative and same management company with, such Person. For purpose of this Agreement, “Fully Diluted Outstanding Shares” shall have the Company Directors (meaning set forth in the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")Certificate.
Appears in 1 contract
Sources: Voting Agreement (iBio, Inc.)
Board Composition. Each Shareholder agrees to vote all of his, her or its Shares in the Company (whether now owned or hereafter acquired or which the Shareholder may be empowered to vote), from time to time and at all times, in whatever manner shall be necessary to ensure that at each annual or special meeting of shareholders at which an election of directors is held or pursuant to any written consent of the shareholders, the following persons shall be elected to the Board:
(a) Subject to the provisions of Sections 6.02(b) and 6.02(d):
(i) So For so long as the Purchasers and their respective Affiliates beneficially own Series A Investor holds no less than fifteen percent (determined in accordance with Rule 13d-3 15%) of the Series A Preferred Shares purchased under the Exchange Act) Series B-1 A Preferred SharesShare Purchase Agreement (as adjusted for any conversion, Series B-2 Preferred Shares and/or Conversion Shares which represent 50% share splits, share dividends, combinations, recapitalizations or more of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stocksimilar transactions), the Purchaser Representative Series A Investor shall have the right be entitled to nominate for election on behalf and elect one (1) director of the Purchasers and such Affiliates three directors to serve on the Company's Board of Directorsthe Company(the “Series A Director”), initially to be Li Jianguang. The Series A Investor shall also be entitled to remove any director occupying in such position and to fill any vacancy caused by the resignation, death or removal of any director occupying such position.
(iib) So For so long as JAFCO holds no less than fifteen percent (15%) of the Series B Preferred Shares purchased under the Series B Preferred Share Purchase Agreement (as adjusted for any conversion, share splits, share dividends, combinations, recapitalizations or similar transactions), JAFCO shall be entitled to nominate and elect one (1) director of the Board of the Company (the “JAFCO Director”), initially to be ▇▇▇▇▇ ▇▇▇▇. JAFCO shall also be entitled to remove any director occupying in such position and to fill any vacancy caused by the resignation, death or removal of any director occupying such position.
(c) For so long as the Purchasers and their respective Affiliates beneficially own Series C Investor holds no less than fifteen percent (determined in accordance with Rule 13d-3 15%) of the Series C Preferred Shares purchased under the Exchange ActPurchase Agreement (as adjusted for any conversion, share splits, share dividends, combinations, recapitalizations or similar transactions), the Series C Investor shall be entitled to nominate and elect one (1) director of the Board of the Company (the “Series B-1 C Director” and together with the Series A Director and the JAFCO Director, the “Preferred SharesDirectors”), initially to be ▇▇▇▇▇▇▇ ▇▇▇▇. The Series B-2 Preferred Shares and/or Conversion Shares which represent 25% C Investor shall also be entitled to remove any director occupying in such position and to fill any vacancy caused by the resignation, death or removal of any director occupying such position.
(d) The holders of more than fifty percent (but less 50%) of the shares Ordinary Shares of the Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right be entitled to nominate for election on behalf of the Purchasers and such Affiliates two elect four (4) directors to serve on the Company's Board of Directors.
(iii) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) Series B-1 Preferred Shares, Series B-2 Preferred Shares and/or Conversion Shares and such shares represent less than 25% (but more than 5%) of the shares of Company Common Stock purchased hereunder on the Closing Date (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock), the Purchaser Representative shall have the right to nominate for election on behalf of the Purchasers and such Affiliates one director to serve on the Company's Board of Directors.
(iv) So long as the Purchasers and their respective Affiliates beneficially own (determined in accordance with Rule 13d-3 under the Exchange Act) at least 5% of the shares of Company Common Stock purchased hereunder (determined on an as-converted basis assuming conversion of all Series B-2 Preferred Shares into Series B-1 Preferred Shares upon Company Shareholder Approval and conversion of all Series B-1 Preferred Shares (including those which are Conversion Shares) into Company Common Stock, in addition to the right to nominate for election directors under clause (i), (ii) or (iii) above, as applicable (the directors so nominated, the "WCAS Directors" and the other members of the Board of Directors of the Company (other than the Jointly-Selected Director (as hereinafter defined)“Ordinary Share Directors”), the "Company Directors")initially to be ▇▇▇ ▇▇▇▇▇▇▇, one of the members of the Board of Directors of the Company not nominated ▇▇▇ ▇▇▇, ▇▇▇▇ Ning and Xia Xiaotao. Such holders shall also be entitled to remove any director occupying in such position and to fill any vacancy caused by the Purchaser Representative pursuant to clause (i)resignation, (ii) death or (iii) above, as applicable, shall be a person mutually agreed upon by the Purchaser Representative and the Company Directors (the "Jointly-Selected Director" and together with the Company Directors, the "Non-WCAS Directors")removal of any director occupying such position.
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