Board Nomination Right. (i) As of the Closing, the Company agrees that the size of the Company’s board of directors (the “Board”) shall be reduced from seven (7) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size of the Board as set forth in this Section 4(aa). (ii) As of the Closing, PharmaCyte Biotech, Inc. (the “Investor”) shall have the right to appoint or nominate for election to the Board one (1) individual to serve as director of the Company (the individual appointed or nominated by the Investor for election to the Company’s board of directors pursuant to this Section 4(aa), a “Nominee”) with the consent of the Company; provided, however, that the Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇. (iii) Until the Investor Board Seat Fall-Away, the Company shall take all necessary actions within its control, including but not limited to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that the Nominee shall be appointed to the Board as a director of the Company. (iv) Until the Investor Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is included in the slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the Nominee, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company. (v) Until the Investor Board Seat Fall-Away, if the Nominee ceases to serve for any reason between the Closing Date and the Maturity Date (as defined in the Notes), the Investor shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee. (vi) The Company shall indemnify the Nominee on the same basis as all other members of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses. (vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each Nominee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification to serve as a director of the Company. No Nominee shall be eligible to serve on the Board if he or she has been involved in any of the events enumerated under Item 2(d) or (2) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor and the Nominee must provide to the Company: (1) all information requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business; (2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business; (3) an undertaking in writing by such Nominee: (A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities; (B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and (C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable law. (viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable. (ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 2 contracts
Sources: Securities Purchase Agreement (PharmaCyte Biotech, Inc.), Securities Purchase Agreement (Femasys Inc)
Board Nomination Right. Subject to Section 1.02, from the Effective Time until the termination of this Agreement in accordance with its terms:
(ia) As At every meeting of the ClosingBoard or a committee thereof, or action by written consent, at or by which directors of the Company agrees that are appointed by the size Board or are nominated to stand for election and elected by stockholders of the Company’s board of directors (, the “Board”) shall be reduced from seven (7) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size of the Board as set forth in this Section 4(aa).
(ii) As of the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Charterhouse Parties shall have the right (but not the obligation) to appoint or nominate for election to the Board Board, as applicable, one (1) individual individual, to serve as director of the Company (the individual appointed or nominated by the Investor for election to the Company’s board of directors pursuant to this Section 4(aa“CCP Director”), a “Nominee”) with the consent . As of the Company; provideddate hereof, however, that the Company shall not withhold consent if the Nominee is Charterhouse Parties designate ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(iii) Until ▇ as the Investor Board Seat Fall-Away, the initial CCP Director. The Company shall take all necessary actions within its control, including but not limited use reasonable best efforts to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that the Nominee shall be appointed to the Board as a director of the Company.
(iv) Until the Investor Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee CCP Director is included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the NomineeCCP Director, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company; provided, that if the Charterhouse Parties inform the Company in writing that they do not wish to appoint or nominate a CCP Director, then the Company shall not be in breach of its obligations under this Section 1.01(a).
(vb) Until If the Investor Board Seat Fall-Away, if the Nominee CCP Director ceases to serve on the Board for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor Charterhouse Parties shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee.
(vi) The Company shall indemnify CCP Director; provided, that, for the Nominee on the same basis as all other members avoidance of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each Nominee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification to serve as a director of the Company. No Nominee shall be eligible to serve on the Board if he or she has been involved in any of the events enumerated under Item 2(d) or (2) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholdersdoubt, the Investor and the Nominee must provide Charterhouse Parties shall have no obligation to the Company:
(1) all information requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, fill any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawvacancy.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Sources: Director Nomination Agreement (Mirion Technologies, Inc.)
Board Nomination Right. Subject to Section 1.02, from the Effective Time until the termination of this Agreement in accordance with its terms:
(ia) As At every meeting of the ClosingBoard or a committee thereof, or action by written consent, at or by which directors of the Company agrees that are appointed by the size Board or are nominated to stand for election and elected by stockholders of the Company’s board of directors (, the “Board”) shall be reduced from seven (7) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size of the Board as set forth in this Section 4(aa).
(ii) As of the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Charterhouse Parties shall have the right (but not the obligation) to appoint or nominate for election to the Board Board, as applicable, one (1) individual individual, to serve as director of the Company (the individual appointed or nominated by the Investor for election to the Company’s board of directors pursuant to this Section 4(aa“CCP Director”), a “Nominee”) with the consent . As of the Company; provideddate hereof, however, that the Charterhouse Parties designate [•] as the initial CCP Director. The Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(iii) Until the Investor Board Seat Fall-Away, the Company shall take all necessary actions within its control, including but not limited use reasonable best efforts to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that the Nominee shall be appointed to the Board as a director of the Company.
(iv) Until the Investor Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee CCP Director is included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the NomineeCCP Director, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company; provided, that if the Charterhouse Parties inform the Company in writing that they do not wish to appoint or nominate a CCP Director, then the Company shall not be in breach of its obligations under this Section 1.01(a).
(vb) Until If the Investor Board Seat Fall-Away, if the Nominee CCP Director ceases to serve on the Board for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor Charterhouse Parties shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee.
(vi) The Company shall indemnify CCP Director; provided, that, for the Nominee on the same basis as all other members avoidance of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each Nominee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification to serve as a director of the Company. No Nominee shall be eligible to serve on the Board if he or she has been involved in any of the events enumerated under Item 2(d) or (2) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholdersdoubt, the Investor and the Nominee must provide Charterhouse Parties shall have no obligation to the Company:
(1) all information requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, fill any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawvacancy.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Sources: Business Combination Agreement (GS Acquisition Holdings Corp II)
Board Nomination Right. Subject to Section 1.02, from the Effective Time until the termination of this Agreement in accordance with its terms:
(ia) As At every meeting of the ClosingBoard or a committee thereof, or action by written consent, at or by which directors of the Company agrees that are appointed by the size Board or are nominated to stand for election and elected by stockholders of the Company’s board of directors (, the “Board”) shall be reduced from seven (7) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size of the Board as set forth in this Section 4(aa).
(ii) As of the Closing, PharmaCyte Biotech, Inc. (the “Investor”) SPAC Sponsor shall have the right (but not the obligation) to appoint or nominate for election to the Board one Board, as applicable, two (12) individual individuals, to serve as director of the Company (the individual appointed or nominated by the Investor for election to the Company’s board of directors pursuant to this Section 4(aa“SPAC Sponsor Directors”), a “Nominee”) with the consent . As of the Company; provideddate hereof, however, that the SPAC Sponsor designates [ ] and [ ] as the initial SPAC Sponsor Directors. The Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
(iii) Until the Investor Board Seat Fall-Away, the Company shall take all necessary actions within its control, including but not limited use reasonable best efforts to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that the Nominee shall be appointed to the Board as a director of the Company.
(iv) Until the Investor Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is SPAC Sponsor Directors are included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the NomineeSPAC Sponsor Directors, if up for election, is are included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company; provided, that if the SPAC Sponsor informs the Company in writing that it does not wish to appoint or nominate a SPAC Sponsor Director, then the Company shall not be in breach of its obligations under this Section 1.01(a).
(vb) Until the Investor Board Seat Fall-Away, if the Nominee If either SPAC Sponsor Director ceases to serve on the Board for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor SPAC Sponsor shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee.
(vi) The Company shall indemnify SPAC Sponsor Director; provided, that, for the Nominee on the same basis as all other members avoidance of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each Nominee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification to serve as a director of the Company. No Nominee shall be eligible to serve on the Board if he or she has been involved in any of the events enumerated under Item 2(d) or (2) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholdersdoubt, the Investor and the Nominee must provide SPAC Sponsor shall have no obligation to the Company:
(1) all information requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, fill any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawvacancy.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Sources: Director Nomination Agreement (GS Acquisition Holdings Corp II)
Board Nomination Right. 5.1.1 From the date hereof until the earlier of (i) As three years from the Effective Date, (ii) the date on which the Sponsor ceases to beneficially own more than 1.0% of the Closing, the Company agrees that the size Common Stock of the Company’s board of directors (the “Board”) shall be reduced from seven (7) members to five (5) members, on a fully-diluted basis, and (iii) the termination of this Agreement in accordance with Section 6.12, at every meeting of the Board, or a committee thereof, or action by written consent, at or by which directors of the Company shall use its reasonable best efforts are appointed by the Board or are nominated to reduce the size stand for election and elected by stockholders of the Board as set forth in this Section 4(aa).
(ii) As of Company, the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Sponsor shall have the right to appoint or nominate for election to the Board Board, as applicable, one (1) individual individual, to serve as director of the Company (the individual appointed or nominated by the Investor Sponsor for election to the Company’s board of directors Board pursuant to this Section 4(aa)5.1.1, a “Nominee”) with the consent ). As of the Company; provideddate hereof, however, that the Company shall not withhold consent if the Nominee is ▇▇▇shall be J▇▇▇ ▇▇▇▇▇▇▇▇▇.
(iii) Until the Investor Board Seat Fall-Away, the 5.1.2 The Company shall take all necessary actions within its control, including but not limited to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that that, as of the date hereof, the Nominee shall either be elected by the Company’s stockholders at the meeting held to approve the Transactions or appointed to the Board as of the date hereof as a director of the Company.
(iv) Until 5.1.3 From and after the Investor Board Seat Fall-Awaydate hereof, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; Company; and (ii) the Nominee, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company.
(v) Until the Investor Board Seat Fall-Away, if 5.1.4 If the Nominee ceases to serve for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor Sponsor shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee; provided, that such successor shall be reasonably acceptable to the Founders.
(vi) 5.1.5 Notwithstanding any of this Section 5.1 to the contrary, the election or appointment of the Nominee to the Board shall be subject to the prior execution by the Nominee of an irrevocable resignation letter in the form attached hereto as Exhibit A.
5.1.6 The Company shall indemnify the Nominee on the same basis as all other members of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other directors.
5.1.7 The Nominee shall be entitled to compensation (including equity awards) that is consistent with the compensation received by other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each In addition, the Company shall pay the reasonable, documented, out-of-pocket expenses incurred by the Nominee in connection with his or her services provided to make himself or herself reasonably available for interviews on behalf of the Company and its subsidiaries, including attending Board and committee meetings or events attended on behalf of the Company or at the Company’s request.
5.1.8 Notwithstanding the provisions of this Section 5.1, the Sponsor shall not be entitled to consent designate a person as a nominee to such reference and background checks or other investigations as the Board may reasonably request to determine upon a written determination by the Nominee’s eligibility and qualification Board or relevant committee thereof that the person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. No Nominee In such an event, the Sponsor shall be eligible entitled to serve on select a person as a replacement Nominee and the Board Company shall take all necessary actions within its control to cause that person to be nominated as a Nominee, including, without limitation, taking such necessary actions to cause that person to be nominated as a Nominee at the same meeting (or, if he or she has been involved in any permitted, pursuant to the same action by written consent of the events enumerated under Item 2(dstockholders) or (2) of Schedule 13D under as the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor and the Nominee must provide to the Company:
(1) all information requested by the Company that is required initial person was to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawnominated.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Sources: Investors’ Rights Agreement (Longview Acquisition Corp. II)
Board Nomination Right. (a) From the Effective Time until the termination of this Agreement in accordance with Section 2.1, at every meeting of the Board, or a committee thereof, or action by written consent, at or by which directors of the Company are appointed by the Board or are nominated to stand for election and elected by stockholders of the Company:
(i) As For so long as the Stockholder holds at least fifty percent (50%) of the Closingissued and outstanding shares of Parent Class A Common Stock, the Company agrees that Stockholder shall have the size of right to designate for election to the Company’s board of directors (the “Board”) shall be reduced from seven (7) members Board up to five (5) members, and individuals to serve as directors of the Company shall use its reasonable best efforts (any individual designated by the Stockholder for election to reduce the Board pursuant to this Section 1.1(a), a “Designee” and, collectively, the “Designees”) that, if elected, will result in five (5) Designees serving on the Board; provided that in such event, the size of the Board as set forth in this accordance with Section 4(aa)1(d) shall be nine (9) directors.
(ii) As For so long as the Stockholder holds at least thirty five percent (35%) but less than fifty percent (50%) of the Closingissued and outstanding shares of Parent Class A Common Stock, PharmaCyte Biotech, Inc. (the “Investor”) Stockholder shall have the right to appoint or nominate designate for election to the Board one up to three (13) individual to serve as director Designees that, if elected, will result in three (3) Designees serving on the Board; provided that in such event, the size of the Company Board in accordance with Section 1(d) shall be nine (the individual appointed or nominated by the Investor for election to the Company’s board of directors pursuant to this Section 4(aa), a “Nominee”9) with the consent of the Company; provided, however, that the Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇directors.
(iii) Until For so long as the Investor Board Seat Fall-AwayStockholder holds at least fifteen percent (15%) but less than thirty five percent (35%) of the issued and outstanding shares of Parent Class A Common Stock, the Company Stockholder shall take all necessary actions within its controlhave the right to designate for election to the Board up to two (2) Designees that, including but not limited to calling a meeting if elected, will result in two (2) Designees serving on the Board provided that in such event, the size of the Board or executing an action by unanimous written consent of the Board, such that the Nominee in accordance with Section 1(d) shall be appointed to the Board as a director of the Companyseven (7) directors.
(iv) Until For so long as the Investor Stockholder holds at least five percent (5%) but less than fifteen percent (15%) of the issued and outstanding shares of Parent Class A Common Stock, the Stockholder shall have the right to designate for election to the Board Seat Fall-Awayup to one (1) Designee that, if elected, will result in one (1) Designee serving on the Board; provided that in such event, the size of the Board in accordance with Section 1(d) shall be seven (7) directors.
(b) From and after the Effective Time, the Company shall shall, as promptly as practicable, take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is applicable Designees are included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors directors, in each case, to the extent necessary such that the number of Designees that the CompanyStockholder is eligible to designate shall be designated; and (ii) the Nominee, if each applicable Designee up for election, election in accordance with the foregoing is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Boarddirectors, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors directors. The Company shall use no less efforts to cause the election of each Designee that is proposed to serve on the CompanyBoard by the Stockholder than the Company shall use with respect to each other nominee up for election.
(vc) Until the Investor Board Seat Fall-Away, if the Nominee If any Designee ceases to serve for any reason between (including because of the Closing Date and the Maturity Date (as defined in the Notesdeath, disability, disqualification, resignation, or removal of such Designee), the Investor shall Stockholder shall, subject to the Stockholder then being entitled to designate such individual for election or appointment as a director pursuant to Section 1.1(a), be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor NomineeDesignee.
(vid) The Company shall take all necessary and desirable actions within its control such that, as of the Effective Time and thereafter from time to time, the size of the Board is set at either seven (7) directors or nine (9) directors, as applicable in accordance with Section 1(a), and sufficient existing directors from time to time resign or are removed from the Board such that the Board positions designated for the Designees are vacant immediately prior to the nomination and appointment of the Designees provided for herein; provided that the Board may after the Effective Time take action (in accordance with the Company’s Amended and Restated Certificate of Incorporation and bylaws in effect at such time) to increase the size of the Board so long as the Stockholder approves such action. For the avoidance of doubt, in the event that the Stockholder shall forfeit the right pursuant to Section 1(a) to designate one (1) or more Designees (but continues thereafter to retain the right pursuant to Section 1(a) to designate one (1) or more other Designees), the Stockholder shall have the right to elect which of its Designees is required to resign or otherwise be removed from the Board.
(e) Notwithstanding any of this Section 1.1 to the contrary, the election or appointment of any Designee to the Board shall be subject to the prior execution by such Designee of an irrevocable resignation letter in the form attached hereto as Exhibit A.
(f) The Company shall indemnify the Nominee Designees on the same basis as all other members of the Board and pursuant to an indemnity agreement agreements with terms that are no less favorable to the Nominee Designees than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(viig) The Company’s obligations Notwithstanding the provisions of this Section 1.1, the Stockholder shall not be entitled to have any Nominee elected designate a Person as a nominee to the Board or nominate any Nominee for election as upon a director at any meeting of written determination by the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director Nominating and Corporate Governance Committee of the Company (which determination shall set forth in writing reasonable grounds for the determination) that the Person would not be qualified under any applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each Nominee to make himself law, rule or herself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification regulation to serve as a director of the Company. No Nominee shall be eligible , in each case solely to serve on the Board if he or she has been involved in extent such determination is based upon any of the events enumerated under Item 2(dfollowing: (i) such Person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); (ii) such Person was the subject of any Order not subsequently reversed, suspended or vacated of any court of competent jurisdiction, permanently or temporarily enjoining such proposed director from, or otherwise limiting, the following activities: (A) engaging in any type of business practice, or (2B) engaging in any activity in connection with the purchase or sale of Schedule 13D under any security or in connection with any violation of federal or state securities Laws; (iii) such Person was the Exchange Act subject of any Order not subsequently reversed, suspended or Item 401(fvacated, of any federal or state authority barring, suspending or otherwise limiting for more than sixty (60) days the right of Regulation S-K under such person to engage in any activity described in clause (ii)(B), or to be associated with Persons engaged in such activity; (4) such Person was found by a court of competent jurisdiction in a civil action or by the Securities Act SEC to have violated any federal or is state securities Law, and the judgment in such civil action or finding by the SEC has not been subsequently reversed, suspended or vacated; or (v) such Designee was the subject of, or a party to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board federal or nomination for election as a director of the Company at any meeting of the Company’s stockholdersstate judicial or administrative Order not subsequently reversed, the Investor and the Nominee must provide to the Company:
(1) all information requested by the Company that is required to be suspended or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each casevacated, relating to a violation of any federal or state securities Law.
(h) In such Nominee’s election an event set forth in Section 1.1(g), the Stockholder shall be entitled to select a Person as a director of replacement Designee and the Company or shall use such efforts as set forth in Section 1.1(b) to cause that Person to be nominated as a Designee at the Company’s operations in same meeting as the ordinary course of business;initial Person was to be nominated.
(2i) all information requested by For the Company in connection with assessing eligibilityavoidance of doubt, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors ▇▇, who is currently serving on the Board with respect to trading as a Class III Director (as defined in the Company’s securities;Second Amended and Restated Certificate of Incorporation (the “Company Charter”)), and Amr Kronfol, who is currently serving as a Class III Director (as defined in the Company Charter), shall constitute Designees of the Stockholder for so long as each shall serve as directors of the Company in accordance with, and subject to, the rights of the Stockholder under this Agreement.
(Bj) to keep confidential all information about For so long as any Designee serves as a director on the Board, the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Documentshall provide such Designee with the same expense reimbursement, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating benefits, indemnity, exculpation and other arrangements provided to the Investor or any affiliate of other directors on the Investor or Board and (ii) thatshall not amend, alter or repeal any right to indemnification or exculpation covering or benefiting any Designee as and to the extent consistent with applicable Law, including but not limited to any rights contained in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict governing documents of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, (except to the extent such amendment or (c) result in alteration permits the Company to provide broader indemnification or exculpation rights on a violation of applicable lawretroactive basis than permitted prior thereto).
(viiik) The Company shall (i) purchase directors’ and officers’ liability insurance in an amount determined by the Board to be permitted to withhold reasonable and customary and (ii) for so long as any information Designee serves as a director on the Board, maintain such directors’ and to exclude the Nominee from any meeting or portion thereof officers’ liability insurance coverage with respect to information such Designee; provided, that upon removal or resignation of such Designee for any reason, the Company shall take all actions reasonably necessary to extend such directors’ and meetings involving items officers’ liability insurance coverage with respect to which Section 4(aa)(vi)(3)(Csuch Designee for a period of not less than six (6) is applicableyears from any such event in respect of any act or omission of such Designee occurring at or prior to such event.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Board Nomination Right. 5.1.1 From the date hereof until the earlier of (i) As three years from the Effective Date and (ii) the termination of this Agreement in accordance with Section 6.12, at every meeting of the ClosingBoard, or a committee thereof, or action by written consent, at or by which directors of the Company agrees that are appointed by the size Board or are nominated to stand for election and elected by stockholders of the Company’s board of directors (, the “Board”) shall be reduced from seven (7) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size of the Board as set forth in this Section 4(aa).
(ii) As of the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Sponsor shall have the right to appoint or nominate for election to the Board Board, as applicable, one (1) individual individual, to serve as director of the Company (the individual appointed or nominated by the Investor Sponsor for election to the Company’s board of directors Board pursuant to this Section 4(aa)subsection 5.1.1, a “Nominee”) with the consent ). As of the Company; provideddate hereof, however, that the Company shall not withhold consent if the Nominee is ▇▇▇shall be ▇▇▇ ▇▇▇▇▇▇▇▇▇Swedish.
(iii) Until the Investor Board Seat Fall-Away, the 5.1.2 The Company shall take all necessary actions within its control, including but not limited to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that that, as of the date hereof, the Nominee shall either be elected by the Company’s stockholders at the meeting held to approve the Transactions or appointed to the Board as of the date hereof as a director of the Company.
(iv) Until 5.1.3 From and after the Investor Board Seat Fall-Awaydate hereof, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is included in the Board’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the Company; Company; and (ii) the Nominee, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company.
(v) Until the Investor Board Seat Fall-Away, if 5.1.4 If the Nominee ceases to serve for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor Sponsor shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board shall promptly fill the vacancy with such successor Nominee; provided, that such successor shall be reasonably acceptable to the Company.
(vi) 5.1.5 The Company shall indemnify the Nominee on the same basis as all other members of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other directors.
5.1.6 The Nominee shall be entitled to compensation (including equity awards) that is consistent with the compensation received by other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor will cause each In addition, the Company shall pay the reasonable, documented, out-of-pocket expenses incurred by the Nominee in connection with his or her services provided to make himself or herself reasonably available for interviews on behalf of the Company and its subsidiaries, including attending Board and committee meetings or events attended on behalf of the Company or at the Company’s request.
5.1.7 Notwithstanding the provisions of this Section 5.1, the Sponsor shall not be entitled to consent designate a person as a nominee to such reference and background checks or other investigations as the Board may reasonably request to determine upon a written determination by the Nominee’s eligibility and qualification Board or relevant committee thereof that the person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. No Nominee In such an event, the Sponsor shall be eligible entitled to serve on select a person as a replacement Nominee and the Board Company shall take all necessary actions within its control to cause that person to be nominated as a Nominee, including, without limitation, taking such necessary actions to cause that person to be nominated as a Nominee at the same meeting (or, if he or she has been involved in any permitted, pursuant to the same action by written consent of the events enumerated under Item 2(dstockholders) or (2) of Schedule 13D under as the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor and the Nominee must provide to the Company:
(1) all information requested by the Company that is required initial person was to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawnominated.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Board Nomination Right. (ia) As From the Effective Time until the termination of this Agreement in accordance with Section 2.01, at every meeting of the Closing, the Company agrees that the size of the Company’s board of directors of the Company (the “Board”) shall be reduced from seven (7) members to five (5) members), and or a committee thereof, or action by written consent, at or by which directors of the Company shall use its reasonable best efforts are appointed by the Board or are nominated to reduce stand for election and elected by the size stockholders of the Board as set forth in this Section 4(aa).
(ii) As of Company, the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Sponsor shall have the right to appoint or nominate for election to the Board one Board, as applicable, two (12) individual individuals, to serve as director directors of the Company (the any individual appointed or nominated by the Investor Sponsor for election to the Company’s board of directors Board pursuant to this Section 4(aa), a “Nominee”1.01(a) with the consent of the Company; provided, however, that the Company and such two individuals shall not withhold consent if the Nominee is be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (a “Nominee” and, collectively, the “Nominees”)). The Sponsor shall have the right to appoint or nominate another individual other than the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ pursuant to this Agreement only if the Board, by a majority vote, approves such appointment or nomination, and upon such approval, such individual shall be deemed a “Nominee” under this Agreement.
(iiib) Until the Investor Board Seat Fall-Away, the The Company shall take all necessary actions within its control, including including, but not limited to to, calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that that, as of the Nominee Effective Time, the Nominees shall either be elected by the Company’s stockholders at the meeting held to approve the Transactions or appointed to the Board as a director of the Effective Time, in each case, as Class II directors (as defined in the Company’s Organizational Documents, each a “Class II Director”).
(ivc) Until From and after the Investor Board Seat Fall-AwayEffective Time, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) (“Necessary Action”) to ensure that: (i) if up for election, the Nominee is applicable Nominees are included in the Board’s slate of nominees to the stockholders of the Company for the each election of directors of the Company Class II Directors and recommended by the Board at any meeting of stockholders called for the purpose of electing directors of the CompanyClass II Directors; and (ii) the Nominee, if each applicable Nominee up for election, election is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the BoardClass II Directors, and at every adjournment or postponement thereof, and on every action or approval by written resolution consent of the stockholders of the Company or the Board with respect to the election of directors of the CompanyClass II Directors.
(vd) Until the Investor Board Seat Fall-Away, if the If any Nominee ceases to serve for any reason between reason, the Closing Date and Sponsor shall, subject to the Maturity Date (Sponsor then being entitled to nominate an individual for election or appointment as defined in the Notesa director pursuant to Section 1.01(a), the Investor shall be entitled to designate and appoint for election or nominate appointment as a director such person’s successor in accordance with this Agreement with and the consent Company shall take all Necessary Action to cause any such vacancy to be filled by such replacement director designated by the Sponsor as promptly as practicable after such designation (and in any event prior to the next meeting or action of the Company and Board).
(e) Notwithstanding any of this Section 1.01 to the contrary, the election or appointment of any Nominee to the Board shall promptly fill be subject to the vacancy with prior execution by such successor Nominee.Nominee of an irrevocable resignation letter in the form attached hereto as Exhibit A.
(vif) The Company shall indemnify the Nominee Nominees who are appointed or elected as Class II Directors on the same basis as all other members of the Board and pursuant to an indemnity agreement agreements with terms that are no less favorable to the Nominee such Nominees than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse .
(g) Nominees who are appointed or elected as Class II Directors shall be entitled to compensation (including equity awards) and the Nominee for all reasonable and documented reimbursement of expenses incurred in connection that is consistent with the Nominee’s participation in meetings of compensation received and the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any expenses reimbursed by other non-executive member of the Board for such expenses.
(vii) The Company’s obligations to have any Nominee elected to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa), as applicable, shall in each case be subject to such Nominee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all employee directors of the Company. The Investor will cause each Nominee .
(h) Notwithstanding the provisions of this Section 1.01, the Sponsor shall not be entitled to make himself or herself reasonably available for interviews and designate a Person as a nominee to consent to such reference and background checks or other investigations as the Board may reasonably request to determine upon a written determination by the Nominee’s eligibility Nominating and qualification Corporate Governance Committee of the Company (which determination shall set forth in writing reasonable grounds for the determination) that the Person would not be qualified under any applicable law, rule or regulation to serve as a director of the Company. No Nominee In such an event, subject to the last sentence of Section 1(a), the Sponsor shall be eligible entitled to serve on select a Person as a replacement Nominee and the Board Company shall use its best efforts to cause that Person to be nominated as a Nominee at the same meeting (or, if he or she has been involved in any permitted, pursuant to the same action by written consent of the events enumerated under Item 2(dstockholders) or (2) of Schedule 13D under as the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any Nominee’s election to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor and the Nominee must provide to the Company:
(1) all information requested by the Company that is required initial Person was to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member of the Board; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor or any affiliate of the Investor or (ii) that, in the Board’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable lawnominated.
(viii) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C) is applicable.
(ix) For the purposes of this Section 4(aa) and Section 4(bb), “Investor Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes and “Investor Beneficial Ownership Requirement” means that the Investor continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company
Appears in 1 contract
Sources: Director Nomination Agreement (SeaStar Medical Holding Corp)
Board Nomination Right. (i) As of the ClosingFirst Closing Date, upon the resignation from the Board of that certain individual as nominated to the Board pursuant to that certain Securities Purchase Agreement dated as of November 14, 2023, by and among the Company agrees that and the size of the Company’s board of directors other parties thereto (the “Board2023 Notes Board Member”) shall be reduced from seven and until the fifth (75th) members to five (5) members, and the Company shall use its reasonable best efforts to reduce the size anniversary of the Board as set forth in this Section 4(aa).
(ii) As of First Closing Date, the Closing, PharmaCyte Biotech, Inc. (the “Investor”) Lead Lender shall have the right to appoint recommend for appointment or nominate for election to the Board one (1) individual to serve as director of the Company with the consent (such consent not to be unreasonably withheld) of the Company (the individual appointed or nominated by the Investor Lead Lender for election to the Company’s board of directors Board pursuant to this Section 4(aa4(q), a “Nominee”) with the consent of the Company; provided, however, that the Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇).
(iiiii) Until the Investor Lead Lender Board Seat Fall-Away, the Company shall take all necessary actions within its control, including but not limited to calling a meeting of the Board or executing an action by unanimous written consent of the Board, such that the Nominee shall be appointed as soon as reasonably practicable after the resignation of the 2023 Notes Board Member to the Board as a director of the Company.
(iviii) Until the Investor Lead Lender Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee is included in the Company’s slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board in the same manner as the Board recommends the Company’s other director nominees at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the Nominee, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing in the same manner as it solicits proxies for the election of the Company’s other director nominees for every meeting of the stockholders of the Company called with respect to the election of members of the Board, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board with respect to the election of directors of the Company.
(viv) Until the Investor Board Seat Fall-Away, if If the Nominee ceases to serve for any reason between the First Closing Date and the Maturity Date (as defined in the Notes), the Investor Lead Lender shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company (such consent not to be unreasonably withheld) and the Board shall promptly fill the vacancy with such successor Nominee.
(viv) The Company shall indemnify the Nominee on the same basis as all other members of the Board and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee than the indemnity agreements entered into between the Company and its other non-employee directors. The Company will reimburse the Nominee for all reasonable and documented expenses incurred in connection with the Nominee’s participation in meetings of the Board or any committee of the Board, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board for such expenses. The Company further acknowledges that the Nominee shall be entitled to the same protections as the other non-employee directors of the Company.
(viivi) The Company’s obligations to have any Nominee elected appointed to the Board or nominate any Nominee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa4(q), as applicable, shall in each case be subject to such Nominee’s material satisfaction of all the requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company. The Investor Lead Lender will cause each Nominee to make himself or herself reasonably available for interviews and to consent to such customary reference and background checks or other investigations as the Board may reasonably request to determine the Nominee’s eligibility and qualification to serve as a director of the Company. No Nominee shall be eligible to serve on the Board if he or she has been involved in any of the events enumerated enumerated, and which is currently required to be disclosed, under Item 2(d) or (22)(e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment judgement prohibiting service as a director of any public company. As a condition to any Nominee’s election appointment to the Board or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor Lead Lender and the Nominee must provide to the Company:
(1) all information reasonably requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such Nominee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2) all information reasonably requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such Nominee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3) an undertaking in writing by such Nominee:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board members or members of any committee of which such the Nominee may be a member, including the Company’s Code of Conduct, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy policy, confidentiality standards and all other Company policies and guidelines applicable generally to directors serving on the Board with respect to trading in the Company’s securities;
(B) to keep confidential all information about the Company and its affiliates of which he or she becomes aware in his or her capacity as a member director of the BoardBoard and which he or she reasonably believes is confidential or has been informed is confidential; and
(C) to recuse himself or herself from any deliberations or discussion of the Board or any committee thereof (i) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor Lead Lender or any affiliate of the Investor Lead Lender or (ii) that, in the Board’s sole judgmentjudgement, (ax) would reasonably be likely to result in a conflict of interest, (by) adversely affect the attorney-attorney client privilege between the Company and its counsel, or (cz) result in a violation of any applicable law; and
(D) to resign from the Board upon the Lead Lender Board Seat Fall-Away.
(viiivii) The In the event that (i) the Nominee determines to recuse himself or herself, or (ii) the Company shall be permitted determines, in its sole discretion, to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to thereof, the Company shall withhold such information and meetings involving items exclude the Nominee from such meeting or portion thereof.
(viii) The Nominee shall resign upon the Lead Lender Board Seat Fall-Away and shall deliver an executed resignation letter in form and substance agreed by the Company to which Section 4(aa)(vi)(3)(C) is applicablebe effective upon the Lead Lender Board Seat Fall-Away.
(ix) For the purposes of this Section 4(aa) and Section 4(bb4(q), “Investor Lead Lender Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Lead Lender Beneficial Ownership Requirement is not satisfied and satisfied, (b) payment in full of the Notes and (c) five (5) years from the First Closing Date. “Investor Lead Lender Beneficial Ownership Requirement” means that the Investor Lead Lender continues to beneficially own at all times shares of Common Stock that represent, on an as-converted basis, at least 4.99% of the number of shares of Common Stock outstanding of the Company.
Appears in 1 contract
Board Nomination Right. (ia) As of the ClosingJanuary 1, 2025, the Company agrees that the size of the Company’s board Board of directors (the “Board”) Directors shall be reduced from increased to seven (7) members to from five (5) members, and the Company shall use its reasonable best efforts to reduce increase the size of the Board as set forth in this Section 4(aa4.7(a).
(ii) As . Upon such increase in size of the ClosingBoard of Directors, PharmaCyte Biotech, Inc. (the “Investor”) Board of Directors shall have the right to appoint or nominate for election to the Board of Directors a new independent director to fill one of the newly created Board of Director seats, which new independent director will be subject to the reasonable approval of Purchaser.
(b) As of January 1, 2025, the Purchaser shall have the right to designate to the Board of Directors one (1) individual to serve as director of the Company (the individual appointed or nominated by the Investor Purchaser for election to the Company’s board Board of directors Directors pursuant to this Section 4(aa)4.7, a the “NomineePurchaser Designee”) with the consent . Purchaser Designee shall be entitled to be part of any committees of the Company; providedBoard of Directors in the same manner as, howeveror as long as, that the Company shall not withhold consent if the Nominee is ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇other non-independent directors are part of such committees.
(iiic) Until the Investor Purchaser Board Seat Fall-Away, the Company shall take all necessary actions within its control, including but not limited to calling a meeting of the Board of Directors or executing an action by unanimous written consent of the BoardBoard of Directors, such that the Nominee Purchaser Designee shall be promptly appointed to the Board of Directors as a director of the Company.
(ivd) Until the Investor Purchaser Board Seat Fall-Away, the Company shall take all actions necessary (including, without limitation, calling special meetings of the Board of Directors and the stockholders of the Company and recommending, supporting and soliciting proxies) to ensure that: (i) if up for election, the Nominee Purchaser Designee is included in the slate of nominees to the stockholders of the Company for the election of directors of the Company and recommended by the Board of Directors at any meeting of stockholders called for the purpose of electing directors of the Company; and (ii) the NomineePurchaser Designee, if up for election, is included in the proxy statement prepared by management of the Company in connection with the Company’s solicitation of proxies or consents in favor of the foregoing for every meeting of the stockholders of the Company called with respect to the election of members of the BoardBoard of Directors, and at every adjournment or postponement thereof, and on every action or approval by written resolution of the stockholders of the Company or the Board of Directors with respect to the election of directors of the Company.
(ve) Until the Investor Purchaser Board Seat Fall-Away, if the Nominee Purchaser Designee ceases to serve for any reason between the Closing Date and the Maturity Date (as defined in the Notes)reason, the Investor Purchaser shall be entitled to designate and appoint or nominate such person’s successor in accordance with this Agreement with the consent of the Company and the Board of Directors shall promptly fill the vacancy with such successor NomineePurchaser Designee.
(vif) The Company shall indemnify the Nominee Purchaser Designee on the same basis as all other members of the Board of Directors and pursuant to an indemnity agreement with terms that are no less favorable to the Nominee Purchaser Designee than the indemnity agreements entered into between the Company and its other non-employee directors, and the Purchaser Designee shall be covered by the same insurance provisions and coverage as are applicable to the Company’s other non-employee directors. The Company will reimburse the Nominee Purchaser Designee for all reasonable and documented expenses incurred in connection with the NomineePurchaser Designee’s participation in meetings of the Board of Directors or any committee of the BoardBoard of Directors, including, without limitation, all reasonable and documented travel, lodging and meal expenses, in each case to the same extent as the Company reimburses any other non-executive member of the Board of Directors for such expenses.
(viig) The Company’s obligations to have any Nominee Purchaser Designee elected to the Board of Directors or nominate any Nominee Purchaser Designee for election as a director at any meeting of the Company’s stockholders pursuant to this Section 4(aa)4.7, as applicable, shall in each case be subject to such NomineePurchaser Designee’s satisfaction of all requirements regarding service as a director of the Company under applicable law and stock exchange rules regarding service as a director of the Company and all other criteria and qualifications for service as a director applicable to all directors of the Company, as reasonably determined by the Company and the Purchaser. To the extent a Purchaser Designee is determined to not meet such criteria, the Purchaser shall be entitled to continue designating a replacement until such proposed designee is appointed to the Board. The Investor Purchaser will cause each Nominee Purchaser Designee to make himself or herself themself reasonably available for interviews and to consent to such reference and background checks or other investigations as the Board of Directors may reasonably request to determine the Nominee’s Purchaser Designee eligibility and qualification to serve as a director of the Company, but only to the same extent as any other director of the Company. No Nominee Purchaser Designee shall be eligible to serve on the Board of Directors if he or she has they have been involved in any of the events enumerated under Item 2(d) or (2) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any judgment prohibiting service as a director of any public company. As a condition to any NomineePurchaser Designee’s election to the Board of Directors or nomination for election as a director of the Company at any meeting of the Company’s stockholders, the Investor Purchaser and the Nominee Purchaser Designee must provide to the Company:
(1i) all information requested by the Company that is required to be or is customarily disclosed for directors, candidates for directors and their respective affiliates and representatives in a proxy statement or other filings in accordance with applicable law, any stock exchange rules or listing standards or the Company’s corporate governance guidelines, in each case, relating to such NomineePurchaser Designee’s election as a director of the Company or the Company’s operations in the ordinary course of business;
(2ii) all information customarily requested by the Company in connection with assessing eligibility, independence and other criteria applicable to directors or satisfying compliance and legal or regulatory obligations, in each case, relating to such NomineePurchaser Designee’s nomination or election, as applicable, as a director of the Company or the Company’s operations in the ordinary course of business;
(3iii) an undertaking in writing by such NomineePurchaser Designee, if and to the extent also customarily required of all other non-employee directors of the Company:
(A) to be subject to, bound by and duly comply with applicable law, the Company’s organizational documents, the policies, procedures, processes, codes, rules, standards and guidelines applicable to all Board of Directors members or members of any committee of which such Nominee may be a member, including the Company’s Code of ConductConduct and Ethics, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy and all other Company policies and guidelines applicable generally to directors serving on the Board of Directors with respect to trading in the Company’s securities;
(B) to keep confidential all non-public information about the Company and its affiliates of which he or she Purchaser Designee becomes aware in his or her their capacity as a member of the BoardBoard of Directors; and
(C) to recuse himself or herself themself from any deliberations or discussion of the Board of Directors or any committee thereof (i1) regarding any Transaction Document, the transactions contemplated thereby or any matters relating thereto or any transactions with or matters relating to the Investor Nominee, the Purchaser or any affiliate Affiliate of the Investor Purchaser or (ii2) that, in the BoardBoard of Director’s sole judgment, (a) would reasonably be likely to result in a conflict of interest, (b) adversely affect the attorney-client privilege between the Company and its counsel, or (c) result in a violation of applicable law.
(viiih) The Company shall be permitted to withhold any information and to exclude the Nominee from any meeting or portion thereof with respect to information and meetings involving items to which Section 4(aa)(vi)(3)(C4.7(g)(iii)(C) is applicable.
(ixi) For the purposes of this Section 4(aa) and Section 4(bb)4.7, “Investor Purchaser Board Seat Fall-Away” means the earlier of (a) the first day on which the Investor Purchaser Beneficial Ownership Requirement is not satisfied and (b) payment in full of the Notes satisfied, and “Investor Purchaser Beneficial Ownership Requirement” means that the Investor Purchaser continues to beneficially own at all times shares at least 7,450,000 Shares, subject to adjustment for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that represent, on an as-converted basis, at least 4.99% occur after the date of the number of shares of Common Stock outstanding of the Companythis Agreement and prior to Closing.
Appears in 1 contract