Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ). (b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement. (c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such action.
Appears in 2 contracts
Sources: Merger Agreement (Agrium Inc), Merger Agreement (Uap Holding Corp)
Board Representation. (a) Subject to applicable LawSections 2(b) and 3(n) below, immediately upon payment by Offeror beginning on the ninety first (91st) day following the date of effectiveness of the Company’s registration statement on Form S-1 related to the IPO, at any time at which the Investor and its Affiliates, collectively, beneficially own (i) the Required Shares and (ii) at least 4.9% of the Company’s then-outstanding voting Common Stock, the Company shall support the nomination of, and cause the Board of Directors to include in the slate of nominees recommended to the Company’s stockholders for shares election as directors of Company Common Stock accepted the Company, one (1) person designated at the Acceptance Time, any time and from time to time thereafter as shares of Company Common Stock are acquired by Parent the Investor (the “Investor Designee”). In the event that the Investor Designee resigns his or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve her seat on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect or is removed or otherwise fails to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees become or ceases to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawa director for any reason, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) vacancy to be on (i) each committee filled by the election or appointment of another director nominated by the Board of Directors of Investor as soon as reasonably practicable in compliance with applicable laws, rules and regulations. Investor will provide the Company and (ii) subject to Company, in writing, the information about the Investor Designee that is reasonably required by applicable Law and law for inclusion in the Company’s Certificate proxy materials for meetings of Incorporationstockholders promptly after the Company requests such information from the Investor, each Board of Directors and each committee thereof of each Subsidiary of will cause the Company. The Company’s obligations Investor Designee to appoint designees submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, outside directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)generally.
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Timeprovisions of Section 2(a), the Company Investor shall use its best efforts not designate a particular individual as a nominee to cause its the Board of Directors if a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel and upon written advice of such counsel, that such person would not be qualified to always have at least two (2serve as a director of the Company under applicable law, rule or regulation, rule of the stock exchange on which the Company’s shares are listed or the Bylaws. The Company shall notify the Investor of any objection to an Investor Designee pursuant to this Section 2(b) directors who are directors on sufficiently in advance of the date hereof, who on which the proxy materials related to any such designee are not employed to be mailed by the Company and who are not Affiliates, stockholders or employees in connection with such election of Parent or any of its Subsidiariesdirectors, and who are independent directors for purposes in no event less than the first business day after such determination by the Board of Directors, so as to enable the continued listing requirements of Investor to propose a replacement Investor Designee in accordance with the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes terms of this Agreement.
(c) Notwithstanding anything Subject at all times to Section 3(n) below and the other limitations set forth in this Agreement to Section 2(c), during the contraryperiod beginning at the closing of the IPO until such time as the Investor and its Affiliates, following collectively, no longer beneficially own the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective TimeRequired Shares, the affirmative vote of Company shall invite a majority designee of the Continuing Directors shall be required Investor (the “Observer”) to (i) amend or terminate this Agreement on behalf attend all meetings of the CompanyBoard of Directors and each committee thereof in a nonvoting observer capacity. In this respect, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or shall give the transactions contemplated hereby. The Continuing Directors shall have the authority Observer copies of all notices, minutes, consents, and other materials that it provides to retain counsel (which may include current counsel to the Company) its directors at the reasonable expense of same time and in the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, same manner as provided to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its termssuch directors; provided, however, that Parent such Observer shall have received agree to hold in confidence and trust and to act in a fiduciary manner with respect to information so provided; and provided, further, that the Company reserves the right to withhold any information and to exclude the Observer from any meeting or portion thereof that the (A) Board of Directors determines based upon the advice of outside counsel that (i) access to such information or attendance at least three such meeting would adversely affect the attorney-client privilege between the Company and its counsel or (3ii) Business Days’ prior notice such information or attendance at such meeting would result in a conflict of interest or (B) (i) the Board of Directors reasonably determines in good faith that the Observer or an Affiliate of the commencement Observer is a competitor of any the Company, or (ii) to protect trade secrets. With respect to the Observer, the Company’s obligations under this Section 2(c) are contingent upon such actionObserver’s (x) entering into a confidentiality agreement with the Company in a form that is reasonably acceptable to the Company and the Investor and (y) agreeing to be bound by the Company’s i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and window policies then in effect and applicable to members of the Board of Directors. Additionally, the rights set forth in this Section 2(c) may only be exercised by the Investor at such time or times when no Investor Designee is on the Board of Directors.
Appears in 2 contracts
Sources: Nominating Agreement (Sagimet Biosciences Inc.), Nominating Agreement (Sagimet Biosciences Inc.)
Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares So long as the Purchasers or one or more of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of their Affiliates hold at least that number 20% of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror issued or issuable upon conversion of the Series C Shares, the Company shall take all necessary or desirable actions within its control (including for purposes calling special board and stockholder meetings and nominating any individual appointed by the holders of this Section 1.03 such shares a majority of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstandingissued or issuable upon conversion of the Series C Shares to the Board of Directors and recommending the election of such individual to the Board of Directors), to cause the Series C Director to be elected to serve as a member of the Board of Directors. The Company shall take at all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s times maintain a Compensation Committee and an Audit Committee of its Board of Directors, including, subject . The Company shall reimburse the Series C Director for all reasonable costs incurred by him or her in connection with traveling to applicable Law and the Company’s Certificate of Incorporation, increasing the size from and attending meetings of the Board of Directors and/or securing and committees of the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors Directors, in addition to any directors fees regularly paid to any members of the Company Board of Directors.
(after giving effect to this b) At such time as the appointment rights in Section 1.03(a)8.6(a) to be on (i) each committee would apply and the Series C Director is not a member of the Board of Directors as provided in this Agreement, the Company shall permit the Requisite Purchasers to appoint one observer attend each meeting of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each any committee thereof of each Subsidiary thereof. The Company will send to any such observer notice of the Companytime and place of any such meeting in the same manner and at the same time as notice is sent to the directors or committee members, as the case may be; provided, however, that each such observer shall always receive at least three (3) days’ prior notice of any meeting. The Company’s obligations Company shall also provide to appoint designees such observer copies of all notices, reports, minutes, consents and other documents at the time and in the manner as they are provided to its the Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Actor committees. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the The Company shall promptly take, at its expense, reimburse each such observer for all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed reasonable costs incurred by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreementobserver.
(c) Notwithstanding anything in this Agreement to the contraryforegoing, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf Board of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority right to retain counsel exclude the Series C Director, or the observer permitted to be in attendance at each meeting of the Board of Directors pursuant to Section 8.6(b) hereof, from portions of meetings of the Board of Directors (which may include current counsel or meetings of committees thereof) or omit to provide the observer with certain information if such majority of the Board of Directors believes in good faith, based on the advice of the Company) at the reasonable expense ’s outside counsel, that such exclusion or omission is necessary to avoid a conflict of the Company for the purpose interest or to prevent a breach of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its termsattorney-client privilege; provided, however, that Parent the Series C Director and the observer shall have received not be so excluded or withheld information unless all other persons whose presence at least three (3) Business Days’ prior notice a meeting or receipt of the commencement such materials would result in a conflict of any such actioninterest or a breach of attorney-client privilege are also excluded or withheld information.
Appears in 2 contracts
Sources: Series C Convertible Preferred Stock and Warrant Purchase Agreement (Abry Mezzanine Partners Lp), Series C Convertible Preferred Stock and Warrant Purchase Agreement (SoftBrands, Inc.)
Board Representation. (a) Subject to applicable Law, immediately upon payment by Offeror for shares the director qualification standards of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors each of the Company as will give Offeror representation on and Republic First Bank (the Board of Directors “Bank”), within 30 calendar days of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes date of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable LawConsulting Agreement, the Company shall, and shall cause individuals designated by Parent to constitute the same percentage as is on Bank to, appoint Consultant’s designee (the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)“Designee”) to be on (i) each committee of the Board of Directors of the Company and the Board of Directors of the Bank, respectively, as a Class III member to serve in accordance with the articles of incorporation and bylaws of the Company and the articles of incorporation and bylaws of the Bank. During the Term, (i) with respect to each meeting of the Company's stockholders at which the Designee's then-current term expires, the Company's board of directors shall nominate the Designee and the Company shall recommend to its stockholders the election of the Designee to the Company's board of directors, and the Company shall solicit proxies for election of the Designee to the same extent as it solicits proxies for its other nominees for the board of directors, and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself each meeting of the Bank's stockholder (or any action by written consent in lieu of such meeting) at which the Designee's then-current term expires, the Company shall elect the Designee to serve on the Bank's board of directors, in each case subject to the director qualification standards of the Company and its nomineesthe Bank, officersrespectively. During the Term, in the event that the Designee is unable to continue serving as a director of the Company and the Bank as a result of illness, incapacity, death, retirement, resignation or any other reason, Consultant shall designate an individual to replace the Designee as a director of the Company and the Bank, subject to the director qualification standards of the Company and the Bank, respectively, and the Company shall promptly take all action necessary to cause such individual to be elected to the boards of directors of the Company and affiliates required the Bank (and such individual shall constitute the "Designee" for all purposes hereunder). The Designee shall be entitled to the same compensation, expense reimbursement and indemnification in connection with his or her service as a director as are enjoyed by the other members of the board of directors of the Company and the Bank. Upon termination of this Consulting Agreement pursuant to Section 14(f1(b) by the Company or by the Consultant, or, if later, on such date as Consultant, together with (i) his affiliates, (ii) the persons listed on the attached Exhibit A and (iii) any other person who may be deemed, with Consultant, to constitute a “group,” (within the meaning of Section 13(d) of the Exchange Act and Rule 14f-1 the rules and regulations promulgated thereunder), is not the record or beneficial owner of at least 4.9% of the request outstanding Common Stock of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company Consultant shall use its his reasonable best efforts to cause its Board the Designee to resign from service as a director of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this AgreementBank.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such action.
Appears in 2 contracts
Sources: Consulting Agreement (Republic First Bancorp Inc), Consulting Agreement (Hill Vernon W Ii)
Board Representation. The Merger Agreement provides that promptly after such time as the Offeror acquires Shares pursuant to the Offer which represent at least a majority of the outstanding Shares (a) Subject to applicable Lawon a fully diluted basis), immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such at its option up to that number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of DirectorsBoard, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act, as will make the percentage of the Company's directors designated by the Parent equal to the aggregate voting power of the Shares owned by the Offeror, the Parent or any of their affiliates (assuming the exercise of all options to purchase Common Stock); provided, however, until the Effective Time, such Board of Directors shall have at least two directors who are directors on the date of the Merger Agreement (the "Company Designees"), provided, that subsequent to the purchase of and payment for Shares pursuant to the Offer, the Parent shall always have its designees represent at least a majority of the entire Company Board. From and after the time that the Parent's designees constitute a majority of the Company Board, any actions relating to the amendment or termination of the Merger Agreement by the Company or any extension of time requiring the approval of the Company or waiver of any condition or rights of the Company thereunder or any action that would adversely affect the rights of the stockholders of the Company or the holders of Options must be approved by a majority of the Company Designees then in office; provided, that if the number of Company Designees shall be reduced below two for any reason whatsoever, any remaining Company Designee shall be entitled to designate a person to fill such vacancy who shall be deemed to be a Company Designee for purposes of the Merger Agreement or, if no Company Designee then remains, the other directors shall designate two persons to fill such vacancies who shall not be stockholders, affiliates or associates of Offeror or Parent and such persons shall be deemed to be Company Designees for purposes of the Merger Agreement. Subject to applicable Lawlaw, and subject to Parent supplying the Company with has agreed to take all action requested by the Parent which is reasonably necessary to effect any such election, including mailing to its stockholders the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 Rule14f-1 promulgated thereunder. Conditions Precedent. The respective obligations of each party to effect the Merger are subject to the fulfillment at or prior to the Effective Time of the following conditions: (i) if required by applicable law, at the request stockholders of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under have approved the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its termsMerger; provided, however, that the Parent and the Offeror shall vote all of their shares of Company Common Stock entitled to vote thereon in favor of the Merger, (ii) no statute, rule, regulation, executive order, decree, ruling or injunction or other order issued by any court of competent jurisdiction or other governmental or regulatory entity preventing the consummation of the Merger shall be in effect; provided, however, that each of the parties shall have received at least three used its reasonable efforts to have any such decree, ruling, injunction or order vacated, and (3iii) Business Days’ prior notice all material governmental consents, orders and approvals legally required for the consummation of the commencement Merger shall have been obtained and any waiting period (and any extension thereof) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of any such action1976, as amended (the "HSR Act") and under antitrust laws of applicable jurisdictions outside the United States applicable to the Merger shall have expired or been terminated.
Appears in 2 contracts
Sources: Offer to Purchase (Wolters Kluwer Us Corp), Offer to Purchase (Wolters Kluwer Us Corp)
Board Representation. (a) Subject to applicable Lawlaw, immediately promptly upon the acceptance for payment by Offeror for shares of Company Common Stock accepted at any Shares pursuant to the Acceptance TimeOffer, and from time to time thereafter as shares of Company Common Stock Shares are acquired by Parent or Offerorpursuant to the Offer, Parent Merger Subsidiary shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror Merger Subsidiary representation on the Board of Directors of the Company of equal to at least that number of directors on the Company’s Board of Directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this SectionSection and including current directors serving as officers of the Company) and multiplied by (ii) the percentage that the aggregate number of shares of Company Common Stock Shares beneficially owned by Parent and/or Offeror Merger Subsidiary (including for purposes of this Section 1.03 such shares of Company Common Stock Shares accepted for payment) bears to the number of shares of Company Common Stock then Shares outstanding. The Company shall take all actions necessary to cause ParentMerger Subsidiary’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directorsdirectors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the Nasdaq National Market listing requirements). Subject to applicable Lawlaw and to the extent permitted by the Nasdaq National Market listing requirements, the Company shall cause individuals designated by Parent Merger Subsidiary to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at At the request of ParentMerger Subsidiary, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent Merger Subsidiary will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoingprovisions of Section 1.03(a), from following the Acceptance Time election or appointment of Merger Subsidiary’s designees pursuant to Section 1.03(a) and until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always of the Company shall at all times have at least two (2) three directors who are directors on the date hereof, hereof and who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ Subsidiaries (the “Continuing Independent Directors”); provided that, that if the number of Continuing any Independent Directors shall cease to be reduced below two (2) directors for any reason whatsoever, the remaining Continuing Independent Directors (or Continuing Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Independent Director(s) for purposes of this Agreement; provided, further, provided that the remaining Continuing Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Independent Director is appointed in such time period, Parent Merger Subsidiary shall designate such Continuing Independent Director(s); provided, further, provided further that if no Continuing Independent Director then remains, the other directors shall designate two (2) three Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Merger Subsidiary, not to be unreasonably withheld or delayed.
(c) Notwithstanding anything in this Agreement to the contrary, following Following the election or appointment of any of ParentMerger Subsidiary’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote approval of a majority of the Continuing Independent Directors shall be required to authorize (i) amend or terminate this Agreement and such authorization shall constitute the authorization of the Board of Directors and no other action on behalf the part of the Company, (iiincluding any action by any other director of the Company, shall be required to authorize) extend any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors of the Company, any extension of time for performance of any obligation of, or action hereunder by, by Parent or Merger Sub (Subsidiary and any enforcement of or Offeror), (iii) exercise, enforce or waive any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) Subsidiary under this Agreement or (v) take any other action by the Company Company’s Board of Directors under or in connection with this Agreement or the transactions contemplated herebyAgreement. The Continuing Independent Directors shall have the authority to retain counsel (which may include current counsel full power solely with respect to the Company) at matters set forth in the reasonable expense of previous sentence to be approved by the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actionIndependent Directors.
Appears in 1 contract
Sources: Merger Agreement (Prima Energy Corp)
Board Representation. (a) Subject The Company shall use its best reasonable efforts to applicable Law, immediately upon payment have a person nominated by Offeror for shares the Purchasers appointed as a director of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect the "GAP Director") in the manner set forth in this Section 6.3, provided that such person shall be reasonably acceptable to the election Company (it being the present intention of any additional directors pursuant the Purchasers to this Section) nominate Erik Engstrom and (ii) it being agreed that Erik Engstrom shall be acceptabl▇ ▇▇ ▇▇▇ ▇▇▇▇any). In order to discharg▇ ▇▇▇▇ ▇▇▇▇▇▇tion, the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears agrees to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size convene a special meeting of the Board of Directors and/or securing as soon as reasonably practicable after the resignations Closing Date. At such meeting, the Company will recommend that the Board of incumbent directors. Subject Directors temporarily appoint (cooptation a titre provisoire) the GAP Director, subject to applicable Lawlaws and regulations. In lieu of such a special meeting of the Board of Directors, the Company may, after consultation with the Purchasers and for good cause, call an ordinary meeting of shareholders for the purpose of electing the GAP Director. Until such time as the GAP Director is appointed or elected (as the case may be), the Company shall cause individuals designated provide the person nominated by Parent to constitute the same percentage Purchasers as is on the entire Board of Directors GAP Director with notice (including all board and related materials) of the Company (after giving effect to this Section 1.03(a)) to be on (i) place, date and hour of each committee regular or special meeting of the Board of Directors not later than the date on which notice of such meeting is given to the directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) such person shall be entitled to designate any other Person(s) who shall attend each such board meeting, it being understood and agreed that, if in the opinion of the Company's internal or external counsel, certain matters may not be an Affiliate, stockholder considered by the Board of Directors in the presence of such representative or employee of Parent such person may not receive board and related materials without violating applicable law or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of otherwise jeopardizing a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf legitimate legal interest of the Company, (ii) extend such person may be requested to excuse himself from the time for performance of any obligation ofboard meeting or the Company may refrain from providing such board and related materials, in each case, to the extent necessary not to violate applicable law or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of to jeopardize a legitimate legal interest. So long as the agreements or conditions contained herein for the benefit of Purchasers have a material interest in the Company, (iv) take any action the Company agrees to seek use its reasonable efforts to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action maintain a person nominated by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense Purchasers as a member of the Company for the purpose Board of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actionDirectors.
Appears in 1 contract
Sources: Stock Purchase and Exchange Agreement (Infogrames Inc)
Board Representation. (a) Subject to applicable LawEach Executive Stockholder and Initial Carlyle Stockholder shall vote all of the Voting Shares over which such Executive Stockholder or such Initial Carlyle Stockholder has voting control and shall take all other necessary or desirable actions within such Executive Stockholder’s or such Initial Carlyle Stockholder’s control (whether in such Executive Stockholder’s or such Initial Carlyle Stockholder’s capacity as a stockholder, immediately upon payment by Offeror for shares director, member of a Board committee or officer of the Company Common Stock accepted at the Acceptance Timeor otherwise, and including, without limitation, attendance at meetings in person or by proxy for purposes of obtaining a quorum, execution of written consents in lieu of meetings, and approval of amendments and/or restatements of the Company’s certificate of incorporation or by-laws) so that (i) the authorized number of directors (the “Directors”) on the Board shall be at least five and no greater than fifteen and (ii) the Directors shall be the persons nominated or designated in accordance with this Section 1. Each of the Directors from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, authorized to serve on the Board shall be designated for nomination for election by the Initial Carlyle Stockholders.
(b) The Company shall cause the individuals designated in accordance with Section 1(a) to be nominated for election to the Board, shall solicit proxies in favor thereof, and at each meeting of the stockholders of the Company at which directors of the Company are to be elected, shall recommend that the stockholders of the Company elect to the Board each such individual nominated for election at such meeting.
(c) Subject to the provisions of the Company’s certificate of incorporation, a Director may be removed from the Board upon the request of the Person or group of Persons that designated such Director, and not otherwise; provided that nothing in this Agreement shall be construed to impair any rights that the Stockholders of the Company may have to remove any Director for cause.
(d) In the event that any Director for any reason ceases to serve as a member of the Board during his term of office, the Person or group of Persons who designated such Director shall have the right to designate for appointment by the remaining Directors of the Company an individual to fill the vacant directorship. Each of the Company, the Carlyle Stockholders and the Chief Executive Officer agrees to take such actions as will give Offeror representation on result in the Board appointment as soon as practicable of Directors any individual so designated by each such Person or group of Persons.
(e) At such time as the Carlyle Stockholders cease collectively to own and have the power to dispose of Company Common Stock representing at least forty percent (40%) of the interests in the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) represented by all issued and (ii) the percentage that the number of outstanding shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears Stock, the Stockholders shall discuss and use commercially reasonable efforts to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directorsagree upon, includingand, subject to applicable Law Section 10(k), shall amend this Agreement to effect, appropriate amendments to this Section 1 and such other provisions of this Agreement as shall be appropriate, in each case to be consistent with the Company’s Certificate of Incorporation, increasing the size ownership position of the Board of Directors and/or securing Carlyle Stockholders at that time.
(f) For so long as the resignations of incumbent directors. Subject to Company qualifies as a “controlled company” under the applicable Lawlisting standards then in effect, the Company shall cause individuals designated by Parent will elect to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within for purposes of such applicable listing standards, and will disclose in its annual meeting proxy statement that it is a “controlled company” and the meaning basis for that determination. The Company, the Carlyle Stockholders and the Executive Stockholders acknowledge and agree that, as of the listing requirements date of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Timethis Agreement, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by is a “controlled company.” After the Company and who are not Affiliatesceases to qualify as a “controlled company” under applicable listing standards then in effect, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the Carlyle Stockholders acknowledge that a sufficient number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s their designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall will be required to (i) amend or terminate this Agreement on behalf of qualify as “independent directors” to ensure that the Company, (ii) extend Board complies with such applicable listing standards in the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action periods required by the Company under or applicable listing standards then in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder effect, and shall have use commercially reasonable efforts to make their designees consistent with the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actionforegoing.
Appears in 1 contract
Board Representation. For as long as the Investor’s Percentage is at least 7.5%:
(a) Subject to applicable Law, immediately upon payment by Offeror for shares of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Investor shall be entitled to designate such number of directorsone individual (the “Investor’s Nominee”), rounded up to the next whole numberbe nominated and, if elected, to serve on as a member of the Board for a term expiring not earlier than the Company’s next annual meeting of Directors Shareholders at which directors of the Company are to be elected provided that such Investor’s Nominee consents in writing to serve as will give Offeror representation on a director and is eligible under the Board of Directors of the Company of at least that number of directors which equals the product of Act to serve as a director;
(ib) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions steps as may be necessary to cause Parentappoint the Investor’s designees Nominee to the Board as of the Closing Time;
(c) at the first annual meeting of Shareholders following the end of the term of the Investor’s Nominee, at which directors of the Company are to be elected or appointed elected, and at each meeting of Shareholders thereafter at which directors are to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawbe elected, the Company shall cause individuals designated the Investor’s Nominee to be included in the slate of nominees proposed by Parent the Company to constitute the same percentage Shareholders for election as is on directors;
(d) the entire Board Company shall use commercially reasonable efforts to cause the election of Directors the Investor’s Nominee, including soliciting proxies in favour of the election of the Investor’s Nominee;
(e) the Company shall notify the Investor in writing immediately upon determining the date of any meeting of the Shareholders at which directors of the Company (after giving effect to this Section 1.03(a)) are to be on elected and the Investor shall advise the Company and the Board of the name of the Investor’s Nominee within 10 Business Days after receiving such notice;
(f) if the Investor does not advise the Company and the Board of the Investor’s Nominee within the time set forth in Section 4.1(e), then the Investor will be deemed to have designated its incumbent nominee for nomination for election at the relevant meeting of the Shareholders;
(g) if the Investor’s Nominee ceases to hold office as a director of the Company for any reason, the Investor shall be entitled to nominate an individual to replace him or her and the Company shall promptly take all steps as may be necessary to appoint such individual to the Board to replace the Investor’s Nominee who has ceased to hold office;
(h) if the Investor’s Nominee to the Board is anybody other than N▇▇▇ ▇▇▇▇, the Investor will provide the Board with reasonable notice of the person it proposes to nominate to the Board, and the Investor will give due consideration to the view of the independent members of the Board as to whether such person is an appropriate addition to the Board given his or her skill set. However, neither the Board nor the Company will be entitled to veto the Investor’s Nominee provided that such Investor’s Nominee has not previously been removed by a resolution of the Shareholders and is not a director who retired by rotation and was not re-elected by the Shareholders; and
(i) each so long as the Investor’s Nominee serves as a member of the Board, such Investor’s Nominee shall be eligible to serve on any committee of the Board of Directors provided that such Investor’s Nominee satisfies the eligibility criteria for such committee and the Board has approved, and has received regulatory approval, of the Company and (ii) subject to applicable Law and the CompanyInvestor’s Certificate Nominee serving as a member of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)such committee.
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such action.
Appears in 1 contract
Board Representation. (a) Subject The Company agrees that, not later than the first meeting of the Board that occurs after the First Closing, it will cause one vacancy to applicable Law, immediately upon payment be created on its Board (by Offeror for shares of Company Common Stock accepted at increasing the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on members of such Board or otherwise) and it will cause one person proposed by the Board of Directors of Principal Investor and selected by the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (iprovided in Section 4.9(b) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to such Board. The Company and the Holding Company further agree that thereafter the Company’s Board of Directors, includingor following the Demutualization Date, subject the Holding Company, shall nominate for election to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated or the Holding Company, as applicable, by Parent to constitute the same percentage as is on the entire Board of Directors policyholders or stockholders of the Company (after giving effect or the Holding Company, as applicable, at any meeting of such policyholders or stockholders held for the purpose of electing Trustees or Directors, the Trustee or Director appointed pursuant to this Section 1.03(a)) to be on (i) each committee the previous sentence or another nominee of the Board of Directors of Investors that has been selected by the Company and (ii) subject to applicable Law and or the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Holding Company as provided in Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ4.9(b).
(b) Notwithstanding In connection with any appointment or nomination of the foregoingInvestors' nominee to the Company's or Holding Company's Board, from the Acceptance Time until the Effective Timeas applicable, pursuant to this Section 4.9, the Principal Investor shall propose to the Company or Holding Company, as applicable, three candidates, one of which may be selected by the Company or Holding Company, as applicable, subject to the prior approval of the Superintendent. If none of the three persons proposed by the Principal Investor is selected by the Company or the Holding Company, as applicable, the Principal Investor shall propose two additional persons, one of whom shall be selected for appointment or nomination by the Company or
(c) The Company and the Holding Company shall use its their respective best efforts to cause its Board all of Directors to always the Investors' nominees that have at least two (2) directors who are directors on the date hereof, who are not employed been selected by the Company and who are not Affiliatesor the Holding Company for nomination pursuant to the provisions of this Agreement to be elected at any meeting of policyholders or stockholders, stockholders as applicable, held for the purpose of electing Trustees or employees Directors. Without limiting the foregoing, such persons shall be included in the list of Parent candidates nominated by the Company's or any of its SubsidiariesHolding Company's Board, as applicable, for such election, and who are independent directors for purposes the Company or the Holding Company, as applicable, shall solicit votes in favor of such persons in the solicitation materials sent to policyholders or stockholders and shall vote or cause to be voted all shares or mutual voting interests held by them or which they otherwise have power to vote or direct the voting of in favor of such persons.
(i) Each nominee of the continued listing requirements Investors referred to in this Section 4.9 shall serve on the Board of Trustees or Board of Directors, as the case may be, to which such nominee is elected or appointed, until his successor is duly elected or appointed and qualified, or until his earlier death or resignation. In the event that any such nominee shall cease to serve as a Trustee of the NASDAQ (Company or as a Director of the “Continuing Directors”); provided thatHolding Company, if the number of Continuing Directors shall be reduced below two (2) as applicable, for any reason whatsoeverother than as a result of his resignation due to the termination of the rights provided in this Section 4.9, the remaining Continuing Directors Company or the Holding Company, as applicable, shall cause the vacancy resulting thereby promptly to be filled by another nominee of the Investors selected by the Company or the Holding Company as provided in Section 4.9(b).
(e) With respect to any legal requirements concerning the residency or Continuing Directorcitizenship of Trustees or Directors, if there the Company and the Holding Company will use their best efforts to cause the members of the applicable Board other than Investors' nominee to be persons with residency and citizenship such that the selected Investors' nominee will not be ineligible to serve. Such best efforts will not include causing any necessary resignations in order to accommodate such nominee. The Principal Investor will include at least one resident of New York in its list of
(f) The Investors' Board representation rights granted by this Section 4.9 shall terminate at such time when the Investors and their Subsidiaries and Affiliates in the aggregate no longer own an aggregate amount of Warrants and Convertible Preferred Stock representing the right to acquire Holding Company Common Stock and/or Holding Company Common Stock equal to at least 5% of the voting power of the Holding Company Common Stock on an as exercised or as converted basis.
(g) Each of the Company and the Holding Company agrees that any Trustee or Director appointed or elected pursuant to this Section 4.9 who is only one remaining) serving on the Company's or Holding Company's Board, as applicable, shall be furnished with all information generally provided to the Trustees or Directors, as applicable (including to the members of any Committee of which such Trustee or Director is a member), shall have full access to information regarding the Company or the Holding Company, as applicable, and shall be entitled to designate any the same perquisites as the Company's and the Holding Company's other Person(s) who shall not be an Affiliateoutside Trustees or Directors, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreementapplicable.
(ch) Notwithstanding anything in this Agreement to the contraryThe Principal Investor, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the CompanyInvestors, (ii) extend shall have the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance right to consult with any the senior management of the agreements or conditions contained herein for Company or, following the benefit Demutualization Date, the Holding Company with respect to the business of the CompanyCompany and its Subsidiaries or the Holding Company and its Subsidiaries, (iv) as applicable, and to make proposals with respect to such business. The parties agree that the Company and the Holding Company shall be under no obligation to take any action with respect to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any the proposals and other action advice given by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel Principal Investor pursuant to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authorityforegoing, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent the Company and the Holding Company shall have received at least three (3) Business Days’ prior notice of the commencement of be obligated to take any such actionproposals and advice seriously and give due consideration thereto.
Appears in 1 contract
Board Representation. (a) Subject to applicable Lawlaw, immediately promptly upon the acceptance for payment by Offeror for shares of Company Common Stock accepted at any Shares pursuant to the Acceptance TimeOffer, and from time to time thereafter as shares of Company Common Stock Shares are acquired by Parent or Offerorpursuant to the Offer, Parent Merger Subsidiary shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror Merger Subsidiary representation on the Board of Directors of the Company of equal to at least that number of directors on the Company's Board of Directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this SectionSection and including current directors serving as officers of the Company) and multiplied by (ii) the percentage that the aggregate number of shares of Company Common Stock Shares beneficially owned by Parent and/or Offeror Merger Subsidiary (including for purposes of this Section 1.03 such shares of Company Common Stock Shares accepted for payment) bears to the number of shares of Company Common Stock then Shares outstanding. The Company shall take all actions necessary to cause Parent’s Merger Subsidiary's designees to be elected or appointed to the Company’s 's Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, including increasing the size of the Board of Directors and/or securing the resignations of incumbent directorsdirectors (including, if necessary, to ensure that a sufficient number of independent directors are serving on the Board of Directors of the Company in order to satisfy the Nasdaq National Market listing requirements). Subject to applicable Lawlaw and to the extent permitted by the Nasdaq National Market listing requirements, the Company shall cause individuals designated by Parent Merger Subsidiary to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s 's obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at At the request of ParentMerger Subsidiary, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and or otherwise timely mail to its stockholders all necessary information to comply therewith. Parent Merger Subsidiary will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoingprovisions of Section 1.03(a), from following the Acceptance Time election or appointment of Merger Subsidiary's designees pursuant to Section 1.03(a) and until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always of the Company shall at all times have at least two (2) three directors who are directors on the date hereof, hereof and who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ Subsidiaries (the “Continuing "Independent Directors”"); provided that, that if the number of Continuing any Independent Directors shall cease to be reduced below two (2) directors for any reason whatsoever, the remaining Continuing Independent Directors (or Continuing Independent Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Independent Director(s) for purposes of this Agreement; provided, further, provided that the remaining Continuing Independent Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Independent Director is appointed in such time period, Parent Merger Subsidiary shall designate such Continuing Independent Director(s); provided, further, provided further that if no Continuing Independent Director then remains, the other directors shall designate two (2) three Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Independent Directors for purposes of this Agreement. In all cases, the selection of any Independent Directors who are not directors on the date hereof shall be subject to the approval of Merger Subsidiary, not to be unreasonably withheld or delayed.
(c) Notwithstanding anything in this Agreement to the contrary, following Following the election or appointment of any of Parent’s Merger Subsidiary's designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote approval of a majority of the Continuing Independent Directors shall be required to authorize (i) amend or terminate this Agreement and such authorization shall constitute the authorization of the Board of Directors and no other action on behalf the part of the Company, (iiincluding any action by any other director of the Company, shall be required to authorize) extend any termination of this Agreement by the Company, any amendment of this Agreement requiring action by the Board of Directors of the Company, any extension of time for performance of any obligation of, or action hereunder by, by Parent or Merger Sub (Subsidiary and any enforcement of or Offeror), (iii) exercise, enforce or waive any waiver of compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) Subsidiary under this Agreement or (v) take any other action by the Company Company's Board of Directors under or in connection with this Agreement or the transactions contemplated herebyAgreement. The Continuing Independent Directors shall have the authority to retain counsel (which may include current counsel full power solely with respect to the Company) at matters set forth in the reasonable expense of previous sentence to be approved by the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actionIndependent Directors.
Appears in 1 contract
Sources: Merger Agreement (Prima Energy Corp)
Board Representation. (a) Subject to applicable LawEffective on the day after the Note Closing Date, immediately upon payment the Company shall increase by Offeror for shares of Company Common Stock accepted at one (1) the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on members of the Board of Directors of the Company and shall elect and appoint a representative of Purchaser designated by Purchaser and reasonably acceptable to the Company (the "PURCHASER REPRESENTATIVE") to such newly created directorship. The Company and Purchaser agree that ▇▇▇▇▇▇▇ will be the initial Purchaser Representative. From and after the election of Purchaser Representative as will give Offeror representation on a Director of the Board of Directors Company, and for as long as Purchaser Representative shall remain a Director of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number Section 5.3, Purchaser Representative shall be entitled to serve as a member of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each any executive committee of the Board of Directors of the Company and any other committee or body performing the functions of an executive committee (the "EXECUTIVE COMMITTEE"). As long as Purchaser beneficially owns not less than 850,000 shares of Common Stock (as adjusted for the events described in Section 1.3 in a manner consistent therewith), (i) the Board of Directors of the Company shall nominate and recommend the Purchaser Representative for election as a Director of the Company, and shall otherwise use its reasonable best efforts to cause the election of such Purchaser Representative as a Director of the Company at each meeting of the Company's shareholders at which the Purchaser Representative's term as a Director would otherwise expire, and (ii) subject Purchaser shall be entitled to applicable Law and designate one individual who shall receive notice of all meetings of the Company’s Certificate of Incorporation, each Board of Directors and the Executive Committee of the Company and who shall be entitled to attend and participate in all such meetings as an observer on behalf of Purchaser (the "OBSERVER"). Subject to Section 5.3(b), each committee thereof Purchaser Representative shall be treated equally with the other Directors and the other members of each Subsidiary the Executive Committee in their capacities as such and shall be entitled to the same information (including reports, financial statements, notices and other information) at the same time (subject to the same general conflicts-of-interest rules applicable to all other members of the Board of Directors and Executive Committee of the Company. The Company’s obligations to appoint designees to its Board of Directors , reasonably and consistently applied) and the same compensation and benefits, as shall be subject provided to compliance with Section 14(f) other Directors of the Exchange Act. Subject to applicable LawCompany and other members of the Executive Committee, and subject copies of all such information shall be provided or made available to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, Observer at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant same time such information is provided or made available to Section 14(f) Purchaser and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)other Directors or Executive Committee members.
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Timeany other provisions of this Agreement, the Company shall use its best efforts rights of the Purchaser Representative to cause its serve as a Director and as a member of the Executive Committee, and the rights of the Observer to attend and participate in meetings of the Board of Directors and the Executive Committee, pursuant to always have at least two Section 5.3(a) shall terminate upon the earlier of: (2i) directors who are directors on the date hereofCompany's sale of all or substantially all of its assets, who are not employed by (ii) a merger, consolidation, share exchange, or other reorganization or business combination involving the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes in which shareholders of the continued listing requirements Company immediately prior to such merger, consolidation, share exchange or other reorganization or business combination own less than fifty percent (50%) of the NASDAQ voting capital stock of the surviving or acquiring corporation or the resulting entity, or (iii) such time as Purchaser no longer owns 850,000 shares of Common Stock (as adjusted for the “Continuing Directors”events described in Section 1.3 in a manner consistent therewith); provided that. At any time Purchaser is no longer entitled to Board representation pursuant to this Section 5.3, if then at the number request of Continuing Directors shall be reduced below two (2) for any reason whatsoeverthe Company, the remaining Continuing Purchaser Representative shall immediately resign and the Observer shall immediately cease attending any meetings of the Board of Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this AgreementExecutive Committee.
(c) Notwithstanding anything in this Agreement In addition to any other indemnification and insurance rights the contraryPurchaser Representative and the Observer may have, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf each Purchaser Representative (A) shall have the same indemnification rights, as set forth in the Company's Restated Articles and Bylaws, as the other members of the Board of Directors of the Company, (ii) extend and the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any Company shall afford each Purchaser Representative an opportunity to enter into an indemnification agreement substantially similar to the then effective indemnification agreement between the Company and the other members of the agreements or conditions contained herein for Board of Directors; and (B) shall be covered by director and officer liability insurance to the benefit same extent as other members of the Board of Directors of the Company, and (ivii) take any action to seek the maximum extent applicable, each Observer (A) shall have analogous rights to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by indemnification from the Company under or which are substantially similar in connection with this Agreement or scope to those of the transactions contemplated hereby. The Continuing Directors Purchaser Representative and (B) shall have be covered at the authority to retain counsel (which may include current counsel Company's expense by liability insurance comparable in scope to the Company) insurance required to be obtained for Purchaser Representative to the extent such issuance is available on commercially reasonable terms at the commercially reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actioncost.
Appears in 1 contract
Sources: Convertible Secured Note, Option and Warrant Purchase Agreement (Supergen Inc)
Board Representation. (a) Subject to applicable Lawthe conditions set forth herein, immediately upon payment by Offeror for shares of the Company Common Stock accepted shall nominate, and the Company and the Purchaser shall use their best efforts to cause the election at the Acceptance TimeMeeting of, certain persons to be designated by each of the Purchaser and from time to time thereafter the Company (collectively, the "Nominees"), as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole numberprovided herein, to serve as directors on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of such that:
(i) a majority of the total number members of directors on such Board shall be comprised of the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and Purchaser's designated representatives; and
(ii) three of the percentage that the number members of shares such Board shall be comprised of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board 's designated representatives consisting of Directors, including, subject to applicable Law ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇▇▇") and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals two additional representatives designated by Parent to constitute the same percentage as is on the entire current Board of Directors of the Company (after giving effect collectively, the "Company Designees"). Notwithstanding anything to this the contrary contained herein, each representative designated by the Purchaser in accordance with Section 1.03(a)7.3(f) hereof shall be nominated for election to be serve on (i) each committee of the Board of Directors of the Company and (ii) subject unless such representative shall not be satisfactory to applicable Law and the Company’s Certificate of Incorporation, each 's current Board of Directors for good faith reasons and each committee thereof Company Designee shall be nominated to serve on the Board of each Subsidiary Directors unless such Designee (other than ▇▇▇▇▇▇) shall not be satisfactory to the Purchaser for good faith reasons. All current members of the Company. The Company’s obligations to appoint designees to its 's Board of Directors not nominated as set forth above shall be resign effective upon the Closing. Any current members of such Board nominated as set forth above shall resign effective upon the Closing, subject to compliance with Section 14(f) of the Exchange Acttheir re-nomination and re-election as set forth herein. Subject to applicable LawAll Nominees shall take office if, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parentonly if, the Company Closing shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)occur.
(b) Notwithstanding Any director designated hereunder shall serve subject to the foregoingterms of the Company's Certificate of Incorporation and By-laws, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors each as in effect on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its SubsidiariesClosing Date, and who are independent directors for purposes the provisions of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreementapplicable law.
(c) Notwithstanding anything in this Agreement to The Company Designees and the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors Purchaser shall be required to (i) amend or terminate this Agreement on behalf jointly designate two of the Company, (ii) extend 's directors to comprise the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit audit committee of the Company. Each of such directors must qualify as independent, outside directors in accordance with the rules and regulations of The New York Stock Exchange.
(ivd) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action The directors designated by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors Purchaser shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense serve as Class I and Class III directors of the Company for (as allocated by the purpose of fulfilling their obligations hereunder Purchaser) whose terms shall expire in the years 2000 and 1999, respectively. The Company Designees shall have the authority, after the Acceptance Date, to institute any action on behalf serve as Class II directors of the Company to enforce whose terms shall expire in the performance of this Agreement year 2001. There shall be no Class II directors other than the Company Designees (and their respective successors selected in accordance with Section 8.1 hereof) through May 31, 2001.
(e) The Company shall include in the Proxy Statement distributed in respect of the Meeting the Proposals and shall recommend its terms; provided, however, that Parent approval of each Proposal (including approval of all Nominees) by the shareholders of the Company. ▇▇▇▇▇▇ and the Purchaser (and its Affiliates) agree to vote any shares of Common Stock which they own or otherwise have the power to vote in favor of each of the Proposals (including approval of all Nominees).
(f) The Company shall give the Purchaser written notice not less than 10 days prior to the filing with the SEC of the preliminary Proxy Statement in respect of the Meeting to allow the Purchaser to designate its nominees for director for inclusion in such Proxy Statement. The Company shall have received at least three no obligation to include such nominees in the Proxy Statement unless the Company receives written notice from the Purchaser setting forth its designated nominees (3along with all biographical and other information necessary for inclusion in the Proxy Statement) Business Days’ prior not later than five days after the Company's notice of to the commencement of any such actionPurchaser.
Appears in 1 contract
Board Representation. (a) Subject at all times to Sections 2(b) and 3(n) below, during the period beginning immediately following the closing of the IPO and for three (3) years thereafter, at any time at which the Investor and its Affiliates, collectively, beneficially own (i) the Required Shares and (ii) at least 2% of the Company’s then-outstanding voting Common Stock, the Company shall support the nomination of, and cause the Board of Directors (or the nominating committee thereof), subject to the requirements of fiduciary duties under applicable Lawlaw, immediately upon payment by Offeror to include in the slate of nominees recommended to the Company’s stockholders for shares election as directors of the Company Common Stock accepted at each annual or special meeting of the Acceptance TimeCompany’s stockholders at which directors are to be elected (an “Election Meeting”), one (1) person designated at any time and from time to time thereafter as shares by the Investor (the “Investor Designee”); provided that, the Company shall have no obligation to support the nomination of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled cause the Board of Directors to designate such number include in the slate of directors, rounded up nominees recommended to the next whole number, to serve Company’s stockholders for election as directors of the Company an Investor Designee if the Investor already has at least one Investor Designee serving as a director on the Board of Directors at the time of the Company Election Meeting and the term of such Investor Designee as will give Offeror representation a director on the Board of Directors of does not expire at such Election Meeting. In the Company of at least event that number of directors which equals the product of (i) the total number of directors Investor Designee resigns from his or her seat on the Board of Directors (giving effect or is removed or otherwise fails to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees become or ceases to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Lawa director for any reason, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) vacancy to be on (i) each committee filled by the election or appointment of another Investor Designee nominated by the Board of Directors of the Company Investor as soon as reasonably practicable in compliance with applicable laws, rules and (ii) regulations, subject to the requirements of fiduciary duties. Investor will provide the Company, in writing, the information about the Investor Designee that is reasonably required by applicable Law and law for inclusion in the Company’s Certificate proxy materials for meetings of Incorporationstockholders promptly after the Company requests such information from the Investor, each Board of Directors and each committee thereof of each Subsidiary of will cause the Company. The Company’s obligations Investor Designee to appoint designees submit on a timely basis to the Company a completed and executed questionnaire in the form that the Company provides to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, outside directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)generally.
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Timeprovisions of Section 2(a), the Company Investor shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall individual as a nominee to the Board of Directors if a majority of the disinterested members of the Board of Directors reasonably and in good faith determines, after consultation with the Company’s outside legal counsel and upon written advice of such counsel, that such person would not be an Affiliatequalified to serve as a director of the Company under any applicable law (including requirements of fiduciary duties under applicable law), stockholder rule or employee regulation, rule of Parent the stock exchange on which the Company’s shares are listed, the Bylaws or any policy, or guidelines previously approved by the Board of Directors, provided that a direct or indirect purpose of any such policy or guideline is not to obstruct the Investor’s right to designate an individual as a nominee to the Board of Directors or its Subsidiaries rights under this Agreement. The Company shall notify the Investor of any objection to fill an Investor Designee pursuant to this Section 2(b) sufficiently in advance of the date on which the proxy materials related to any such vacancies and such Person(s) shall be deemed designee are to be Continuing Director(s) for purposes mailed by the Company in connection with such election of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Daysdirectors, and further provided that if in no event less than the first business day after such Continuing Director is appointed determination by the Board of Directors, so as to enable the Investor to propose a replacement Investor Designee in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, accordance with the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes terms of this Agreement.
(c) Notwithstanding anything Subject at all times to Section 3(n) below and the other limitations set forth in this Agreement to Section 2(c), during the contraryperiod beginning at the closing of the IPO until such time as the Investor and its Affiliates, following collectively, no longer beneficially own the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective TimeRequired Shares, the affirmative vote of Company shall invite a majority designee of the Continuing Directors shall be required Investor (the “Observer”) to (i) amend or terminate this Agreement on behalf attend all meetings of the CompanyBoard of Directors and each committee thereof in a nonvoting observer capacity. In this respect, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or shall give the Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at substantially the same time and in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority same manner as provided to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its termssuch directors; provided, however, that Parent such Observer shall have received agree to hold in confidence all information so provided; and provided, further, that the Company reserves the right to withhold any information and to exclude the Observer from any meeting or portion thereof that the (A) Board of Directors determines based upon the advice of outside counsel that (i) access to such information or attendance at least three such meeting is reasonably likely to adversely affect the attorney-client privilege between the Company and its counsel or (3ii) Business Days’ prior notice access to such information or attendance at such meeting is reasonably likely to result in a conflict of interest or (B) to protect trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company), or a conflict of interest, of if the Investor or Observer is a competitor of the commencement Company. With respect to the Observer, the Company’s obligations under this Section 2(c) are contingent upon such Observer’s (x) entering into a confidentiality agreement with the Company in a form that is reasonably acceptable to the Company and the Investor and (y) agreeing to be bound by the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and window policies then in effect and applicable to members of any the Board of Directors. Additionally, the rights set forth in this Section 2(c) may only be exercised by the Investor at such actiontime or times when no Investor Designee is on the Board of Directors.
Appears in 1 contract
Board Representation. (a1) Subject The Shareholder shall have, if and for so long as the Shareholder, together with its Affiliates and certain investment funds for which it acts as investment advisor, beneficially owns or exercises control or direction over, directly or indirectly, at least 10% of the outstanding Shares (before giving effect to applicable Lawthe exercise, immediately upon payment by Offeror conversion or exchange of any securities exercisable for, convertible into or exchangeable for shares of Company Common Stock accepted at Shares), the Acceptance Timeright to select one individual, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent who shall be entitled to designate such number of directors, rounded up presented to the next whole number, to serve on the Board of Directors shareholders of the Company as will give Offeror representation on the Board of Directors part of the Company management proposed list of at least that number of directors which equals the product of (i) the total number of nominees to serve as directors on the Board board of Directors (giving effect to the election of any additional directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)the “Board”) to be on (i) each committee of the Board of Directors at any shareholder meeting at which directors of the Company and (ii) subject are being elected, with such individual being referred to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be herein as a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing DirectorsNominee”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent such nomination right shall have received only be exercisable for so long as the Board has at least three members (including the Nominee).
(2) The Company acknowledges that the Shareholder’s current Nominee on the Board is ▇▇▇▇▇ ▇▇▇▇▇▇▇.
(3) Business Days’ prior In order to exercise its rights in section 1.1(1) and commencing in the fiscal year in which the third annual meeting of the Company is held, the Shareholder shall, by no later than thirty days following the Company’s fiscal year end, provide the Company with written notice of the commencement Shareholder’s proposed Nominee(s), which individuals shall be subject to consideration by the Board pursuant to the process set forth in Section 1.2(2); provided, however, that if the Shareholder fails to provide such notice, the Shareholder’s proposed Nominee shall be deemed to be the Nominee then serving on the Board.
(4) The Nominee will be invited to join certain committees of the Board upon and subject to his or her election as a director of the Company and the determination of the Board as to which committee or committees the Nominee will be invited to join.
(5) At the request of the Shareholder but subject to the residency requirements in the by-laws of the applicable subsidiary, the Company shall cause the nominee to be elected to the board of directors of any such actiondirect or indirect subsidiary of the Company whose board composition is substantially similar to that of the Board.
(6) The Shareholder acknowledges that there is no assurance that the Nominee will be elected to the Board by shareholders.
(7) The Shareholder shall provide written notice to the Company promptly upon the Shareholder having knowledge, based on the most recently reported outstanding share number by the Company, that the Shareholder, together with its Affiliates and certain investment funds for which it acts as investment advisor, beneficially owns, or exercises control or direction over, directly or indirectly, less than 10% of the outstanding Shares (before giving effect to the exercise, conversion or exchange of any securities exercisable for, convertible into or exchangeable for Shares).
Appears in 1 contract
Sources: Nominating Agreement (Postmedia Network Canada Corp.)
Board Representation. (a) Subject From and after the Closing, until such time as the Purchaser Parties collectively no longer Beneficially Own a number of As-Converted Common Shares equal to applicable Law(i) at least 25% of the outstanding As-Converted Common Shares (adjusted for subdivisions, immediately upon payment by Offeror for shares of Company Common Stock accepted at stock-splits, combinations, recapitalizations or similar events), the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent Purchaser shall be entitled to designate such number three (3) individuals, who shall be Partners, Managing Directors, Advisors or Principals of directorsthe Purchaser, rounded up to the next whole number▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, LLC or an Affiliated Fund to serve on the Company Board of Directors of (the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) “Purchaser Designees” and each a “Purchaser Designee”), (ii) at least 15% (but less than 25%) of the percentage outstanding As-Converted Common Shares (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events), the Purchaser shall be entitled to designate two (2) Purchaser Designees and (iii) at least 5% (but less than 15%) of the outstanding As-Converted Common Shares (adjusted for subdivisions, stock-splits, combinations, recapitalizations or similar events), the Purchaser shall be entitled to designate one (1) Purchaser Designee. At such time that the Purchaser is no longer entitled to designate one or more of its Purchaser Designees pursuant to the previous sentence, the Purchaser shall promptly cause such number of shares of Purchaser Designees which it no longer is entitled to designate to offer to resign from the Company Common Stock beneficially owned by Parent and/or Offeror (including Board. The Purchaser Designees shall initially be those persons named on Schedule 4.11 to this Agreement. A person that is a Purchaser Designee shall remain and be regarded as a Purchaser Designee for purposes of this Section 1.03 such shares of Agreement so long as he or she shall serve as a director on the Company Common Stock accepted for payment) bears Board pursuant to the number terms of shares of Company Common Stock then outstandingthis Section 4.11(a). The Company’s obligations to have any Purchaser Designee appointed to the Company Board or nominate any Purchaser Designee for election as a director at any meeting of the Company’s shareholders pursuant to this Section 4.11, as applicable, shall in each case be subject to such Purchaser 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. The Purchaser Parties will cause each Purchaser Designee to make himself or herself reasonably available for interviews and to consent to such reference and background checks or other investigations and provide such information as the Company Board may reasonably request to determine the Purchaser Designee’s eligibility and qualification to serve as a director of the Company Board.
(b) From and after the Closing, the Company shall take all such actions as are necessary to cause Parent’s designees the Purchaser Designees to be elected or appointed to nominated as members of the Company’s Company Board of Directors, includingand shall, subject to applicable Law and the exercise of the fiduciary duties of the Company Board, include in any proxy statement prepared, used, delivered or publicly filed by the Company to solicit the vote of its shareholders in connection with any meeting of Company shareholders the recommendation of the Company Board that shareholders of the Company vote in favor of the Purchaser Designees and solicit votes in favor of the election of the Purchaser Designees to Company Board consistent with the Company’s Certificate of Incorporation, increasing the size efforts to solicit votes in favor of the election of the Company’s other nominees to the Company Board.
(c) The Company, the Purchaser and each Purchaser Designee shall enter into a confidentiality and non-disclosure agreement on reasonably acceptable terms, which shall (i) provide that a Purchaser Designee shall be permitted to disclose confidential or non-public information received by such Purchaser Designee in its capacity as a member of the Company Board to representatives of Directors and/or securing the resignations Purchaser and its Affiliates and (ii) contain customary acknowledgements with respect to Purchaser’s and each Purchaser Designee’s potential receipt of incumbent directors. Subject material non-public information and awareness of applicable securities laws.
(d) For so long as a CD&R Person or Purchaser Designee is serving on the Company Board, (i) the Company shall not implement or maintain any trading policy, equity ownership guidelines (including with respect to the use of Rule 10b5-1 plans and preclearance or notification to the Company of any trades in the Company’s securities) or similar guideline or policy with respect to the trading of securities of the Company that applies to any Purchaser Party (including a policy that limits, prohibits or restricts any Purchaser Party from entering into any hedging or derivative arrangements), in each case other than with respect to any CD&R Person or Purchaser Designee solely in his or her individual capacity, except as provided herein, (ii) any share ownership requirement for any Purchaser Designee serving on the Company Board will be deemed satisfied by the securities owned by any Purchaser Party and under no circumstances shall any of such policies, procedures, processes, codes, rules, standards and guidelines impose any restrictions on any Purchaser Party’s transfers of securities pursuant to the Registration Rights Agreement or otherwise, subject to compliance with applicable securities Laws, (iii) under no circumstances shall any policy, procedure, code, rule, standard or guideline applicable to the Company Board be violated by any Purchaser Designee receiving compensation from any Purchaser Party and (iv) no Purchaser Designee shall be excluded or required to recuse himself or herself from any meetings or materials of the Company Board as a result of or in connection with his or her affiliation with the CD&R Group or the CD&R Group’s ownership of any Preferred Shares or Common Shares except in connection with a transaction with, or dispute involving, the Purchaser or any other member of the CD&R Group, and, in each case of the foregoing clauses (i), (ii), (iii) and (iv), it is agreed that any such policies in effect from time to time that purport to impose terms inconsistent with this Section 4.11 shall not apply to the extent inconsistent with this Section 4.11 (but shall otherwise be applicable to the Purchaser Designee).
(e) To the fullest extent permitted by the New York Business Corporation Law and subject to any express agreement that may from time to time be in effect, including the confidentiality provisions set forth in this Agreement, to the extent in compliance with applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors agrees that any Purchaser Designee, CD&R Person, CD&R Group and any CD&R Affiliate or any portfolio company thereof (collectively, “Covered Persons”) may, and none of the Company (after giving effect to this Section 1.03(a)) to be on foregoing shall have any duty not to, (i) each committee invest in, carry on and conduct, whether directly, or as a partner in any partnership, or as a joint venturer in any joint venture, or as an officer, director, shareholder, equityholder or investor in any person, or as a participant in any syndicate, pool, trust or association, any business of any kind, nature or description, whether or not such business is competitive with or in the Board same or similar lines of Directors of business as the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes (ii) do business with any client, customer, vendor or lessor of any of the continued listing requirements Company or its Affiliates, and/or (iii) make investments in any kind of property in which the Company may make investments. To the fullest extent permitted by the New York Business Corporation Law, to the extent in compliance with applicable Law, the Company renounces any interest or expectancy to participate in any business or investments of any Covered Person as currently conducted or as may be conducted in the future, and waives any claim against a Covered Person. Except as set forth below, the Company agrees that in the event that a Covered Person acquires knowledge of a potential transaction or matter which may constitute a corporate opportunity for both (x) the Covered Person and (y) the Company or its Subsidiaries, the Covered Person shall not have any duty to offer or communicate information regarding such corporate opportunity to the Company or its Subsidiaries. To the fullest extent permitted by the New York Business Corporation Law, the Company hereby renounces any interest or expectancy in any potential transaction or matter of which the Covered Person acquires knowledge and waives any claim against each Covered Person that such Covered Person is liable to the Company or its shareholders for breach of any fiduciary duty solely by reason of the NASDAQ fact that such Covered Person (A) pursues or acquires any corporate opportunity for its own account or the “Continuing Directors”); provided thataccount of any Affiliate or other person, if (B) directs, recommends, sells, assigns or otherwise transfers such corporate opportunity to another person or (C) does not communicate information regarding such corporate opportunity to the number of Continuing Directors shall be reduced below two (2) Company, in each case, except for any reason whatsoevercorporate opportunity which is expressly offered to a Covered Person in his or her capacity as a member of the Company Board, it being understood that any such corporate opportunity shall belong to the Company.
(f) Notwithstanding the foregoing, at any time, the remaining Continuing Directors (or Continuing DirectorPurchaser may, if there is only one remaining) by written notice thereof, irrevocably relinquish the rights to designate Purchaser Designees and upon delivery of such notice, the Purchaser Parties shall be entitled cease to have any right to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this AgreementPurchaser Designees.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such action.
Appears in 1 contract
Board Representation. (a) Subject to applicable Law, immediately upon payment the review and approval of such designee by Offeror for shares the Governance Committee of Company Common Stock accepted at the Acceptance Time, and from time to time thereafter as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors Directors, which equals the product of approval shall not be unreasonably delayed or withheld, (i) MinnovEx shall have the total number of directors on right, at its option and in its sole discretion, to designate one person for election to the Company's Board of Directors (giving effect to the election of any additional directors pursuant to this Section"MinnovEX Designee") and (ii) the percentage that Ong Purchasers, acting together as a single class, shall have the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including right, at their option and in their sole discretion, to designate one person for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed election to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the 's Board of Directors and/or securing (the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect to this Section 1.03(a)) to be on (i) each committee of the Board of Directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ"Ong Designee").
(b) Notwithstanding MinnovEX and the foregoingOng Purchasers shall notify the Company in writing of the MinnovEX Designee and the Ong Designee, from respectively, for election to the Acceptance Time until Board of Directors at the Effective TimeStandby Closing or at any time within six months thereafter. At the first meeting of the Governance Committee following such notice, the Governance Committee shall review and give consideration to the election of the MinnovEX Designee and the Ong Designee. If the Governance Committee approves either such designee or both, at the first meeting of the Board of Directors thereafter, the Company shall use its best efforts to cause enlarge its Board of Directors to always have at least two (2) directors who are directors on by one or two, as the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiariescase may be, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (elect such designee or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries designees to fill such the vacancy or vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreementthereby created.
(c) Notwithstanding anything in this Agreement If the Governance Committee does not approve the MinnovEX Designee and/or the Ong Designee for election to the contrary, following the election or appointment Board of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective TimeDirectors, the affirmative vote of a majority of Company shall give prompt written notice thereof to MinnovEX and/or the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf of Ong Purchasers, as the Companycase may be, (ii) extend and MinnovEX and/or the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors Ong Purchasers shall have the authority right to retain counsel (which may include current counsel designate an alternative person or persons for election to the Company) at Board of Directors, subject to the reasonable expense review and approval of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent shall have received at least three (3) Business Days’ prior notice of the commencement of any such actionGovernance Committee as set forth above.
Appears in 1 contract
Sources: Bridge Loan, Standby Stock Purchase and Debt Reduction Agreement (Gensym Corp)
Board Representation. (a) Subject to applicable Lawthe conditions set forth herein, immediately upon payment by Offeror for shares of the Company Common Stock accepted shall nominate, and the Company and the Purchaser shall use their best efforts to cause the election at the Acceptance TimeMeeting of, certain persons to be designated by each of the Purchaser and from time to time thereafter the Company (collectively, the "Nominees"), as shares of Company Common Stock are acquired by Parent or Offeror, Parent shall be entitled to designate such number of directors, rounded up to the next whole numberprovided herein, to serve as directors on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of such that:
(i) a majority of the total number members of directors on such Board shall be comprised of the Board of Directors (giving effect to the election of any additional directors pursuant to this Section) and Purchaser's designated representatives; and
(ii) three of the percentage that the number members of shares such Board shall be comprised of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board 's designated representatives consisting of Directors, including, subject to applicable Law Kenneth I. Sawyer ("Sawyer") and two additional representat▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire cur▇▇▇▇ Board of Directors of the Company (after giving effect collectively, the "Company Designees"). Notwithstanding anything to this the contrary contained herein, each representative designated by the Purchaser in accordance with Section 1.03(a)7.3(f) hereof shall be nominated for election to be serve on (i) each committee of the Board of Directors of the Company and (ii) subject unless such representative shall not be satisfactory to applicable Law and the Company’s Certificate of Incorporation, each 's current Board of Directors for good faith reasons and each committee thereof Company Designee shall be nominated to serve on the Board of each Subsidiary Directors unless such Designee (other than Sawyer) shall not be satisfactory to the Purchaser for good faith rea▇▇▇▇. All current members of the Company. The Company’s obligations to appoint designees to its 's Board of Directors not nominated as set forth above shall be resign effective upon the Closing. Any current members of such Board nominated as set forth above shall resign effective upon the Closing, subject to compliance with Section 14(f) of the Exchange Acttheir renomination and re-election as set forth herein. Subject to applicable LawAll Nominees shall take office if, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parentonly if, the Company Closing shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ)occur.
(b) Notwithstanding Any director designated hereunder shall serve subject to the foregoingterms of the Company's Certificate of Incorporation and By-laws, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors each as in effect on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its SubsidiariesClosing Date, and who are independent directors for purposes the provisions of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreementapplicable law.
(c) Notwithstanding anything in this Agreement to The Company Designees and the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors Purchaser shall be required to (i) amend or terminate this Agreement on behalf jointly designate two of the Company, (ii) extend 's directors to comprise the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit audit committee of the Company. Each of such directors must qualify as independent, outside directors in accordance with the rules and regulations of The New York Stock Exchange.
(ivd) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action The directors designated by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors Purchaser shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense serve as Class I and Class III directors of the Company for (as allocated by the purpose of fulfilling their obligations hereunder Purchaser) whose terms shall expire in the years 2000 and 1999, respectively. The Company Designees shall have the authority, after the Acceptance Date, to institute any action on behalf serve as Class II directors of the Company to enforce whose terms shall expire in the performance of this Agreement year 2001. There shall be no Class II directors other than the Company Designees (and their respective successors selected in accordance with Section 8.1 hereof) through May 31, 2001.
(e) The Company shall include in the Proxy Statement distributed in respect of the Meeting the Proposals and shall recommend its terms; provided, however, that Parent approval of each Proposal (including approval of all Nominees) by the shareholders of the Company. Sawyer and the Purchaser (and its Affiliates) agree to vote any share▇ ▇▇ ▇ommon Stock which they own or otherwise have the power to vote in favor of each of the Proposals (including approval of all Nominees).
(f) The Company shall give the Purchaser written notice not less than 10 days prior to the filing with the SEC of the preliminary Proxy Statement in respect of the Meeting to allow the Purchaser to designate its nominees for director for inclusion in such Proxy Statement. The Company shall have received at least three no obligation to include such nominees in the Proxy Statement unless the Company receives written notice from the Purchaser setting forth its designated nominees (3along with all biographical and other information necessary for inclusion in the Proxy Statement) Business Days’ prior not later than five days after the Company's notice of to the commencement of any such actionPurchaser.
Appears in 1 contract
Sources: Stock Purchase Agreement (Pharmaceutical Resources Inc)
Board Representation. (a) Subject to applicable Law, immediately upon payment The board of directors of the Company will be comprised of such number of directors as is determined by Offeror for shares the board of Company Common Stock accepted at directors or otherwise as provided in the Acceptance Timeconstituent documents of the Company. At each annual shareholders meeting of the Company, and from at each special shareholders meeting of the Company called for the purpose of electing directors of the Company, and at any time at which shareholders of the Company shall have the right to, or shall, vote for directors of the Company, then, and in each event, the Shareholders hereby agree to time thereafter vote all Shares owned by them for the nomination and election of a board of directors that will include the following:
(i) Antinori and one other individual designated by him;
(ii) Carreker and three other individuals designated by him; and
(iii) one individual designated by Science Applications International Corporation ("SAIC") (or such greater number of individuals as shares of Company Common Stock are acquired by Parent or Offeror, Parent SAIC shall be entitled to designate such number pursuant to that certain Shareholders Agreement dated as of directorsOctober 10, rounded up 1996 among the Company, Carreker and SAIC). Notwithstanding any other provision of this Agreement, however, no Shareholder will be required to the next whole number, to serve on the Board of Directors of the Company as will give Offeror representation on the Board of Directors of the Company of at least that number of directors which equals the product of (i) the total number of directors on the Board of Directors (giving effect to cause the election of any additional designee, or to support the continued service of any director, if the board of directors pursuant to this Section) and (ii) the percentage that the number of shares of Company Common Stock beneficially owned by Parent and/or Offeror (including for purposes of this Section 1.03 such shares of Company Common Stock accepted for payment) bears to the number of shares of Company Common Stock then outstanding. The Company shall take all actions necessary to cause Parent’s designees to be elected or appointed to the Company’s Board of Directors, including, subject to applicable Law and the Company’s Certificate of Incorporation, increasing the size of the Board of Directors and/or securing the resignations of incumbent directors. Subject to applicable Law, the Company shall cause individuals designated by Parent to constitute the same percentage as is on the entire Board of Directors of the Company (after giving effect determines in good faith, based as to this Section 1.03(a)) to legal matters on the advice of counsel, that the election or continued service of such designee would be on (i) each committee inconsistent with the fiduciary duty owed by the board of the Board of Directors directors of the Company and (ii) subject to applicable Law and the Company’s Certificate of Incorporation, each Board of Directors and each committee thereof of each Subsidiary of the Company. The Company’s obligations to appoint designees to its Board of Directors shall be subject to compliance with Section 14(f) of the Exchange Act. Subject to applicable Law, and subject to Parent supplying the Company with the information with respect to itself and its nominees, officers, directors and affiliates required by Section 14(f) of the Exchange Act and Rule 14f-1 promulgated thereunder, at the request of Parent, the Company shall promptly take, at its expense, all actions required pursuant to Section 14(f) and Rule 14f-1 under the Exchange Act in order to fulfill its obligations under this Section 1.03(a) and shall include in the originally filed Schedule 14D-9 and otherwise timely mail to its stockholders all necessary information to comply therewith. Parent will supply to the Company, and be solely responsible for, all information with respect to itself and its officers, directors and Affiliates required by Section 14(f) and Rule 14f-1 under the Exchange Act. The parties hereto acknowledge and agree that, from and after the Acceptance Date, the Company shall be a “controlled company” (within the meaning of the listing requirements of NASDAQ).
(b) Notwithstanding the foregoing, from the Acceptance Time until the Effective Time, the Company shall use its best efforts to cause its Board of Directors to always have at least two (2) directors who are directors on the date hereof, who are not employed by the Company and who are not Affiliates, stockholders or employees of Parent or any of its Subsidiaries, and who are independent directors for purposes of the continued listing requirements of the NASDAQ (the “Continuing Directors”); provided that, if the number of Continuing Directors shall be reduced below two (2) for any reason whatsoever, the remaining Continuing Directors (or Continuing Director, if there is only one remaining) shall be entitled to designate any other Person(s) who shall not be an Affiliate, stockholder or employee of Parent or any of its Subsidiaries to fill such vacancies and such Person(s) shall be deemed to be Continuing Director(s) for purposes of this Agreement; provided, further, that the remaining Continuing Directors shall fill such vacancies as soon as practicable, but in any event within ten (10) Business Days, and further provided that if no such Continuing Director is appointed in such time period, Parent shall designate such Continuing Director(s); provided, further, that if no Continuing Director then remains, the other directors shall designate two (2) Persons who shall not be Affiliates, stockholders or employees of Parent or any of its Subsidiaries to fill such vacancies and such Persons shall be deemed to be Continuing Directors for purposes of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, following the election or appointment of any of Parent’s designees pursuant to Section 1.03(a) and until the Effective Time, the affirmative vote of a majority of the Continuing Directors shall be required to (i) amend or terminate this Agreement on behalf shareholders of the Company, (ii) extend the time for performance of any obligation of, or action hereunder by, Parent or Merger Sub (or Offeror), (iii) exercise, enforce or waive compliance with any of the agreements or conditions contained herein for the benefit of the Company, (iv) take any action to seek to enforce any obligations of Parent or Merger Sub (or Offeror) under this Agreement or (v) take any other action by the Company under or in connection with this Agreement or the transactions contemplated hereby. The Continuing Directors shall have the authority to retain counsel (which may include current counsel to the Company) at the reasonable expense of the Company for the purpose of fulfilling their obligations hereunder and shall have the authority, after the Acceptance Date, to institute any action on behalf of the Company to enforce the performance of this Agreement in accordance with its terms; provided, however, that Parent the foregoing shall have received at least three (3) Business Days’ prior notice not detract from the right of an individual who designated such designee to nominate another designee for such position. In addition, if a person entitled to designate another person for election as a director of the commencement Company desires to cause his designee to be removed from the board of any directors of the Company, then the Shareholders hereby agree to, if necessary, but subject to all applicable requirements of law, use their best efforts to take or cause to be taken all such actionaction as may be required to remove such designee from the board of directors of the Company.
Appears in 1 contract