Director Designation. (a) The Company agrees to cause the Board on the date hereof to consist of 10 directors (individually, a “Director” and, collectively, the “Directors”), subject to future increase or decrease in accordance with the Company’s by-laws and this Agreement. (b) For so long as MP TMA LLC, MP TMA (Cayman) LLC and their respective Affiliates (collectively, “MP”) beneficially own Warrant Shares, unexercised Warrants or other shares of Common Stock representing: (i) at least 5% but less than 10% of the shares of Common Stock outstanding on a fully diluted basis, then MP may designate one Director; (ii) at least 10% but less than 15% of the shares of Common Stock outstanding on a fully-diluted basis, then MP may designate two Directors; and (iii) at least 15% of the shares of Common Stock outstanding on a fully-diluted basis, then MP may designate three Directors. Each such designee is a “MP Designee.” For purposes of this Section 9(b), “fully diluted” excludes shares of Common Stock reserved for issuance upon the conversion of shares of preferred stock. (c) The Company agrees to appoint to the Board designees of two Persons party to this Agreement other than MP and the Company (such designees and the MP Designees, collectively, the “Holder Designees,” and such designating Persons and MP, collectively, the “Significant Holders”). (d) The Company agrees to include in the slate of nominees recommended by the Board to the shareholders of the Company each Holder Designee and to use its best efforts to cause the election of each Holder Designee to the Board. (e) If at any time a Significant Holder shall notify the Company in writing of its desire to remove, with or without cause, any Director of the Company previously designated by it, the Company shall use its best efforts to remove such Director from the Board. (f) If any Holder Designee ceases to serve on the Board (whether by reason of death, resignation, removal or otherwise), the Significant Holder who designated such Director shall be entitled to designate a successor Director to fill the vacancy created thereby. (g) The parties hereto hereby agree that any individual designated as a Director of the Company may be removed for cause with or without the consent of the Significant Holder which designated such individual. No such removal of an individual designated pursuant to this paragraph 9 shall affect any Significant Holder right to designate a successor Director pursuant to paragraph 9(f). (h) Notwithstanding anything in this Agreement to the contrary, if any Significant Holder shall cease to have the right to designate the number of current Directors he, she or it has designated in accordance with paragraph 9(b) or (c), the excess Director(s) designated by such Significant Holder shall submit his, her or their resignation and the other Directors shall decide, by the affirmative vote of a majority of such Directors, whether to accept such resignation(s) and, if such resignation(s) are accepted, whether to decrease the size of the Board to eliminate such vacancy or vacancies.
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Director Designation. Within thirty (a30) The Company agrees to cause days following the Board on the date hereof to consist of 10 directors Initial Closing, (individually, a “Director” and, collectively, the “Directors”), subject to future increase or decrease in accordance with i) the Company’s by-laws and this Agreement.
Board of Directors (b) For so long as MP TMA LLC, MP TMA (Cayman) LLC and their respective Affiliates (collectively, “MPBoard”) beneficially own Warrant Shares, unexercised Warrants or other shares shall create a vacancy (“Vacancy”) on the Board by increasing the authorized number of Common Stock representing: directors by one (i1) at least 5% but less than 10% of the shares of Common Stock outstanding on a fully diluted basis, then MP may designate one Director; and (ii) at least 10% but less than 15% a Majority in Interest of the shares of Common Stock outstanding Investors shall select an individual (“Designee”) that they would like to serve on a fully-diluted basis, then MP may designate two Directors; and (iii) at least 15% of the shares of Common Stock outstanding on a fully-diluted basis, then MP may designate three Directors. Each such designee is a “MP Designee.” For purposes of this Section 9(b), “fully diluted” excludes shares of Common Stock reserved for issuance upon the conversion of shares of preferred stock.
(c) The Company agrees to appoint to the Board designees of two Persons party to this Agreement other than MP and the Company (such designees and the MP Designees, collectively, the “Holder Designees,” and such designating Persons and MP, collectively, the “Significant Holders”).
(d) The Company agrees to include in the slate of nominees recommended by the Board to the shareholders of the Company each Holder Designee and to use its best efforts to cause the election of each Holder Designee to the Board.
(e) If at any time a Significant Holder shall notify the Company in writing of its desire to remove, with or without cause, any Director of the Company previously designated by it, the Company this selection (“Designee Notice”). Any Designee shall use its best efforts to remove such Director from the Board.
(f) If any Holder Designee ceases be able to serve on the Board if appointed and shall make himself or herself available to the members of the Nominating Committee of the Board (whether by reason “Nominating Committee”) so that they may complete their evaluation of death, resignation, removal or otherwise)such Designee. Promptly following the Nominating Committee’s evaluation of the Designee, the Significant Holder who designated such Director Board shall be entitled to designate a successor Director either (i) fill the Vacancy by appointing the Designee to fill the vacancy created thereby.
Vacancy or (gii) The parties hereto hereby agree notify the Investors in writing (a “Fiduciary Notice”) that any individual designated as the Board has determined, after consultation with counsel, that appointing the Designee to the Board would breach the Board’s fiduciary duties. If the Investors receive a Director Fiduciary Notice, a Majority in Interest of the Investors may select a different Designee and provide the Company may be removed with a Designee Notice for cause the different Designee. If the Investors do not provide the Company with or without a Designee Notice relating to a Designee for which the consent Board has not provided a Fiduciary Notice within thirty (30) days of their receipt of a Fiduciary Notice, the Significant Holder which designated such individual. No such removal of an individual designated pursuant to this paragraph 9 shall affect any Significant Holder right to designate a successor Director pursuant to paragraph 9(f).
(h) Notwithstanding anything in this Agreement to the contrary, if any Significant Holder Investors shall cease to have any rights under this Section 1(h). So long as the right Investors continue to designate the number of current Directors he, she or it has designated in accordance with paragraph 9(b) or (chave rights under this Section 1(h), the excess Director(s) designated by such Significant Holder shall submit hisInvestors may continue to provide Designee Notices to the Board as provided herein, her or their resignation and the other Directors Nominating Committee shall decide, by the affirmative vote of a majority of continue to evaluate such Directors, whether to accept Designees until such resignation(s) and, if such resignation(s) are accepted, whether to decrease the size of time as the Board appoints a Designee to eliminate such vacancy or vacanciesfill the Vacancy. The Board shall not fill the Vacancy with anyone other than a Designee.
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