Voting; Board Composition. Subject to the rights of the Stockholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Holder agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such Holder, or to cause such shares of Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect and maintain in office as members of the Company’s Board of Directors (the “Board”), the following seven (7) individuals: (a) One (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XI, L.P. or any affiliated fund (collectively, “Bay”) (the “Series E Designee”); (b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partners, L.P. or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”); (c) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”); (d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”); (e) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders (the “Stockholders’ Designees”), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and (f) One (1) individual designated by unanimous agreement of the other directors then serving (the “Independent Director”). For purposes of this Agreement: (i) any individual who is designated for election to the Board pursuant to the foregoing provisions of this Section 2.1 is referred to below as a “Board Designee”; and (ii) any individual, entity, or group of individuals and/or entities who has the right to designate one (1) or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicable.
Appears in 2 contracts
Sources: Voting Agreement, Voting Agreement (Enphase Energy, Inc.)
Voting; Board Composition. Subject to the rights of the Stockholders shareholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Holder Shareholder agrees to vote (or consent pursuant to an action by written consent of the stockholders shareholders of the Company) all Company Stock Shares now or hereafter directly or indirectly owned of record or beneficially by such HolderShareholder, or to cause such shares of Company Stock Shares to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect (and maintain in office office) as members of the Company’s Board of Directors (the “Board”), the following seven nine (79) individuals:individuals in accordance with the voting provisions of the Company’s Amended and Restated Articles of Association, as the same shall be amended, or amended and restated, hereafter (the “Restated Articles”):
(ai) One (1) individual who, at the time in question, is the Company’s Chief Executive Officer (the “CEO Designee”);
(ii) One (1) individual who, at the time in question, is the Company’s Secretary (the “Secretary Designee”);
(iii) One (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XIShareholders who, L.P. or any affiliated fund (collectivelyat the time in question, “Bay”) hold Series A Preference Shares, Series B Preference Shares and Series C Preference Shares of the Company representing at least a majority of the voting power of all issued and outstanding Series A Preference Shares, Series B Preference Shares and Series C Preference Shares of the Company, voting together on an as-converted basis, then held by all Shareholders (the “Series E A, B and C Designee”);
(biv) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone PartnersShareholders who, L.P. or any affiliated fund (collectivelyat the time in question, “Madrone”) hold Series D Preference Shares of the Company representing at least a majority of the voting power of all issued and outstanding Series D Preference Shares of the Company, voting as a separate series, then held by all Shareholders (the “Series D DesigneeDesignees”);
(cv) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners IIShareholders who, L.P. or any affiliated fund (collectivelyat the time in question, “Rockport”) hold Series E Preference Shares of the Company representing at least a majority of the voting power of all issued and outstanding Series E Preference Shares of the Company, voting as a separate series, then held by all Shareholders (the “Series C DesigneeE Designees”);
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(evi) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders Shareholders who, at the time in question, hold Series F Preference Shares of the Company representing at least a majority of the voting power of all issued and outstanding Series F Preference Shares of the Company, voting as a separate series, then held by all Shareholders (the “Series F Designees”);
(vii) One (1) individual, who shall be an independent director, designated from time to time in a writing delivered to the Company and signed by Shareholders who, at the time in question, hold shares of issued and outstanding Common Stock Ordinary Shares of the Company representing at least a majority of the voting power of all issued and outstanding shares of Common Stock Ordinary Shares of the Company then held by all Stockholders Shareholders (the “StockholdersShareholders’ DesigneesDesignee”), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and
(fviii) One (1) individual individual, for so long as Capinfo (Hong Kong) Company Limited (“CapInfo HK”) owns at least 7,137,500 Ordinary Shares (as adjusted for combinations, consolidations, subdivisions, or share splits with respect to such shares), designated by unanimous agreement of the other directors then serving CapInfo HK (the “Independent DirectorCapInfo Designee”). For purposes of this Agreement: (i) any individual who is designated for election to the Board pursuant to the foregoing provisions of this Section 2.1 4.2(b) is referred to below as a “Board Designee”; ;” and (ii) any individual, entity, or group of individuals and/or entities who has the right to designate one (1) or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 4.2(b) is referred to below as a “Designator” or as “Designators,” as applicable.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Loyalty Alliance Enterprise Corp), Investors’ Rights Agreement (Loyalty Alliance Enterprise Corp)
Voting; Board Composition. Subject to the rights of the Stockholders of the Company to remove a director for cause in accordance with applicable law, during During the term of this Agreement, each Holder agrees to vote (or consent pursuant to an action by written consent of the stockholders shareholders of the Company) ), in any election of directors, all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such Holder, or to cause such shares of Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect (and maintain in office office) as members of the Company’s Board of Directors (the “Board”), the following seven five (75) individuals:
(a) One four (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XI, L.P. or any affiliated fund (collectively, “Bay”) (the “Series E Designee”);
(b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partners, L.P. or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”);
(c) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(e) Two (24) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares of issued and outstanding Common Stock a duly authorized representative of the Company representing holders of a majority of the then issued and outstanding shares Preferred Stock (voting power together as a single class), (i) one (1) of all whom shall be designated by Altira Technology Fund V L.P. (“Altira”) for so long as Altira and its Affiliates continue to own beneficially at least ten percent (10%) of the shares of Preferred Stock (on an as-converted to Common Stock basis) that Altira and its Affiliates own on the date of this Agreement, (ii) one (1) of whom shall be designated by NGEN II, L.P. (“NGEN”) for so long as NGEN and its Affiliates continue to own beneficially at least ten percent (10%) of the shares of Preferred Stock (on an as-converted to Common Stock basis) that NGEN and its Affiliates own on the date of this Agreement, (iii) one (1) of whom shall be designated by Robeco Institutional Asset Management B.V. or its Affiliate (“Robeco”) for so long as Robeco and its Affiliates continue to own beneficially at least ten percent (10%) of the shares of Preferred Stock (on an as-converted to Common Stock basis) that Robeco and its Affiliates own on the date of this Agreement (collectively, the Altira, NGEN and Robeco designees shall be referred to as the “Preferred Designees”); and (iv) one (1) individual who meets the current standards for “independence” set forth in the Nasdaq Marketplace Rules (the “Independent Designee”).
(b) one individual designated from time to time in a writing delivered to the Company and signed by a duly authorized representative of the holders of at least a majority of the then issued and outstanding shares of Common Stock (excluding for this purpose any shares of Common Stock issued upon exercise of the Company then held by all Stockholders (conversion rights of the “Stockholders’ Designees”Preferred Stock), provided that one of voting together as a single class, who is the Stockholders’ Designees shall always be the CompanyCorporation’s then-current Chief Executive Officer; and
(f) One (1) individual designated by unanimous agreement of the other directors then serving Officer (the “Independent DirectorCommon Designee”). For purposes ; provided, however, that in the event that the then-current Chief Executive Officer owns less than 1.0% of this Agreement: (i) any the outstanding shares of capital stock of the Company on a fully diluted basis, the Common Designee shall be an individual who is designated for election to owns at least 1.0% of the Board pursuant to outstanding shares of capital stock of the foregoing provisions of this Section 2.1 is referred to below as Company on a “Board Designee”; and (ii) any individual, entity, or group of individuals and/or entities who has the right to designate one (1) or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicablefully diluted basis.
Appears in 2 contracts
Sources: Voting Agreement (Energy & Power Solutions, Inc.), Voting Agreement (Energy & Power Solutions, Inc.)
Voting; Board Composition. Subject to the rights of the Stockholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Holder agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such Holder, or to cause such shares of Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect and maintain in office as members of the Company’s Board of Directors (the “Board”), the following seven eight (7) 8) individuals:
(a) One (1) individual designated from time to time in a writing delivered to the Company and signed by KPCB Holdings, Inc., as nominee (“KPCB”) (the “KPCB Series E Designee”);
(b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XI, L.P. or any affiliated fund (collectively, “Bay”) (the “Bay Series E Designee”);
(bc) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partners, L.P. or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”);
(cd) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(de) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(ef) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders (the “Stockholders’ Designees”), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and
(fg) One (1) individual designated by unanimous agreement of the other directors then serving (the “Independent Director”). For purposes of this Agreement: (i) any individual who is designated for election to the Board pursuant to the foregoing provisions of this Section 2.1 is referred to below as a “Board Designee”; and (ii) any individual, entity, or group of individuals and/or entities who has the right to designate one (1) or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicable.
Appears in 1 contract
Sources: Voting Agreement
Voting; Board Composition. Subject to the rights of the Stockholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Holder agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such Holder, or to cause such shares of Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect and maintain in office as members of the Company’s Board of Directors (the “Board”), the following seven eight (7) 8) individuals:
(a) One (1) individual designated from time to time in a writing delivered to the Company and signed by KPCB Holdings, Inc., as nominee (“KPCB”) (the “KPCB Series E Designee”);
(b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XI, L.P. or any affiliated fund (collectively, “Bay”) (the “Bay Series E Designee”);
(bc) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partners, L.P. or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”);
(cd) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(de) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(ef) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders (the “Stockholders’ Designees”), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and
(fg) One (1) individual designated by unanimous agreement of the other directors then serving (the “Independent Director”). For purposes of this Agreement: (i) any individual who is designated for election to the Board pursuant to the foregoing provisions of this Section 2.1 is referred to below as a “Board Designee”; and (ii) any individual, entity, or group of individuals and/or entities who has the right to designate one (1) or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicable.”
Appears in 1 contract
Voting; Board Composition. Subject to the rights of the Stockholders shareholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Investor and Key Holder (each a “Shareholder”) agrees to vote (or consent pursuant to an action by written consent of the stockholders shareholders of the Company) all shares of capital stock of the Company Stock now or hereafter directly or indirectly owned of record or beneficially by such HolderInvestor or Key Holder (the “Capital Shares”), or to cause such shares of capital stock of the Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect (and maintain in office office) as members a member of the Company’s Board of Directors (the “Board”), the following seven (7) individuals:
(a) One For so long as M▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MDO Ventures JS LLC, and/or their affiliates hold at least five percent (5%) of the outstanding shares of Common Stock on an as-converted basis (including shares of Common Stock issuable upon conversion or exercise of the Shares, outstanding options, warrants and other convertible or exercisable securities), M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the “First Investor Board Designee”);
(b) For so long as the Investors hold at least five percent (5%) of the outstanding shares of Common Stock on an as-converted basis (including shares of Common Stock issuable upon conversion or exercise of the Shares, outstanding options, warrants and other convertible or exercisable securities), one (1) individual (the “Second Investor Board Designee” and, together with the First Investor Board Designee, the “Investor Board Designees”) designated from time to time in a writing delivered to the Company and signed by Bay Partners XIInvestors who, L.P. or any affiliated fund at the time in question, hold Capital Shares representing and/or convertible into a majority of all the Investors’ Shares (collectivelyas defined in Section 5.2), “Bay”) (provided, however, that the “Series E Designee”)right of the Investors to designate the Second Investor Board Designee shall automatically terminate upon the consummation of the Next Financing;
(bc) One (1) individual (the “Common Stock Board Designee”) designated from time to time in a writing delivered to the Company and signed by Madrone Partnersholders of Common Stock who, L.P. or any affiliated fund (collectivelyat the time in question, “Madrone”) (hold a majority of the “Series D Designee”)issued and outstanding shares of Common Stock;
(cd) One (1) individual (the “Key Holder Board Designee”) designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(e) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders Key Holders who, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders (Key Holders who are then providing services to the “Stockholders’ Designees”)Company as employees; provided, provided however, that one the right of the Stockholders’ Designees Key Holders to designate the Key Holder Board Designee shall always be automatically terminate if the Company’s thenKey Holders hold, in the aggregate, less than five percent (5%) of the outstanding shares of Common Stock on an as-current Chief Executive Officerconverted basis (including shares of Common Stock issuable upon conversion or exercise of the Shares, outstanding options, warrants and other convertible or exercisable securities) and no Key Holder is then providing services to the Company as an employee; and
(fe) One (1) individual designated who is not affiliated with the Company or any Investor and who is elected by unanimous agreement the holders of a majority of the other directors then serving Common Stock and the Preferred Stock, each voting as a separate class (the “Independent DirectorBoard Designee” and together with the Investor Board Designees, the Key Holder Board Designee, and the Common Stock Board Designee, the “Board Designees”). For purposes avoidance of doubt, the right of the Investors to designate Investor Board Designees under this Section 4.1 shall automatically terminate if the Investors hold less than five percent (5%) of the outstanding shares of Common Stock on an as-converted basis (including shares of Common Stock issuable upon conversion or exercise of the Shares, outstanding options, warrants and other convertible or exercisable securities). Subject to the rights of the shareholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement: , no Investor or Key Holder shall take any action to remove an incumbent Board Designee or to designate a new Board Designee unless such removal and/or designation of a Board Designee is approved in a writing signed by (ia) any individual who is designated for election with respect to the First Investor Board pursuant Designee, M▇▇▇▇▇▇ ▇▇▇▇▇▇▇, MDO Ventures JS LLC, and/or their affiliates, (b) with respect to the foregoing Second Investor Board Designee, Investors who, at the time in question, hold Capital Shares representing and/or convertible into a majority of all the Investors’ Shares, (c) with respect to the Common Stock Board Designee, holders of Common Stock who, at the time in question, hold a majority of the issued and outstanding shares of Common Stock, (d) with respect to the Key Holder Board Designee, Key Holders who, at the time in question, hold shares of issued and outstanding Common Stock representing a majority of the voting power of all issued and outstanding shares of Common Stock then held by all Key Holders who are then providing services to the Company as employees, and (e) with respect to the Independent Board Designee, holders of a majority of either issued and outstanding Common Stock or issued and outstanding Preferred Stock. Each Shareholder hereby appoints each Director as such Shareholder’s true and lawful proxy and attorney, each with the power to act alone and with full power of substitution, to vote all of such Shareholder’s Capital Shares as set forth in this Agreement and to execute all appropriate instruments consistent with this Agreement on behalf of such Shareholder if, and only if, such Shareholder (a) fails to vote or (b) attempts to vote (whether by proxy, in person or by written consent), in a manner which is inconsistent with the terms of this Agreement, all of such Shareholder’s Capital Shares or execute such other instruments in accordance with the provisions of this Agreement within five (5) days of the Company’s or any other party’s written request for such Shareholder’s written consent or signature. The proxy and power granted by each Shareholder pursuant to this Section 2.1 are coupled with an interest and are given to secure the performance of such party’s duties under this Agreement. Each such proxy and power will be irrevocable for the term hereof. The proxy and power, so long as any party hereto is referred to below as a “Board Designee”; and (ii) any an individual, will survive the death, incompetency and disability of such party or any other individual Shareholder holding Capital Shares and, so long as any party hereto is an entity, will survive the merger or group reorganization of individuals and/or entities who has the right to designate one (1) such party or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicableany other entity holding Capital Shares.
Appears in 1 contract
Sources: Investors’ Rights Agreement (Groundfloor Finance Inc.)
Voting; Board Composition. Subject to Section 7 hereof, the rights holders ------------------------- of the Stockholders of the Company to remove a director for cause in accordance with applicable lawInvestor Shares agree that, during the term of this Agreement, each Holder Investor agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such Holder, or to cause such shares of Company Stock to be voted, Investor Shares in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect (and maintain in office office), as members of the Company’s 's Board of Directors (the “Board”)Directors, the following seven (7) individualsdesignees:
(a) One Two (12) individual individuals designated from time to time in a writing delivered to the Company and signed by Bay Partners XIshareholders representing, L.P. or any affiliated fund (collectivelyat the time in question, “Bay”) at least a majority of the voting power of all outstanding shares of Common Stock of the Company (the “Series E Designee”"Common Stock Designees");; ----------------------
(b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partnersshareholders representing, at the time in question, at least a majority of voting power of all shares of Series A Preferred Stock then outstanding and held by Adobe Ventures L.P. and Adobe Ventures II, L.P. or any affiliated fund (collectively, “Madrone”) (the “"Series D A Designee”");; -----------------
(c) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners IIshareholders representing, at the time in question, a majority of the Series B Preferred Stock then outstanding and held by ASCII Ventures, L.P. or any affiliated fund (collectively, “Rockport”) (the “"Series C B Designee”");; -----------------
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund shareholders representing, at the time in question, a majority of the Series C Preferred Stock then outstanding and held by Constellation Ventures (the “"Series B C Designee”");; -----------------
(e) Two In the event that the number of authorized directors of the Company is increased to eight (28), then one (1) individuals individual designated from time to time in a writing delivered to the Company and signed by Stockholders whothe shareholders representing, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders Series C Preferred (the “Stockholders’ Designees”"Additional Series C Designee"), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and
(f) One (1Except as provided in Section 2(e) hereof, such additional individual or individuals as may be designated by unanimous agreement to serve as a director of the other directors then serving Company (the “Independent Director”"Remaining Director(s)") from time to time by a majority of the --------------------- Common Stock Designees, the Series A Designee, the Series B Designee, the Series C Designee and the Additional Series C Designee, if any. For purposes of this Agreement: (i) any individual who is designated for election to the Company's Board of Directors pursuant to the foregoing provisions of this Section 2.1 2 is hereinafter referred to below as a “"Board Designee”"; -------------- and (ii) any individual, entity, or group of individuals and/or entities who who, with respect to the Common Stock Designees, the Series A Designee, the Series B Designee, the Series C Designee and the Additional Series C Designee, if any, has the right to designate one (1) or more Board Designees for election to the Company's Board of Directors or, with respect to the Remaining Director(s), the Common Stock Designees, the Series A Designee, the Series B Designee, the Series C Designee and the Additional Series C Designee, if any, acting pursuant to the foregoing provisions of this Section 2.2 2, is hereinafter referred to below as a “"Designator” " or as “"Designators,” " as applicable.. ---------- -----------
Appears in 1 contract
Voting; Board Composition. Subject to the rights of the Stockholders stockholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, each Investor and Key Holder (each a “Stockholder”) agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all shares of capital stock of the Company Stock now or hereafter directly or indirectly owned of record or beneficially by such HolderInvestor or Key Holder (the “Shares”), or to cause such shares of shares of capital stock of the Company Stock to be voted, in such manner as may be necessary under to elect (and maintain in office) the following persons as members of the Board: (a) one (1) Preferred Director (as such term is defined in the Company’s Amended and Restated Certificate of Incorporation) designated by Project 11, which individual shall initially be K▇▇▇▇ ▇▇▇ and (b) two (2) Common Directors (as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect and maintain such term is defined in office as members of the Company’s Board Restated Certificate of Directors (the “Board”), the following seven (7Incorporation) individuals:
(a) One (1) individual designated from time to time in a writing delivered to the Company and signed by Bay Partners XI, L.P. or any affiliated fund (collectively, “Bay”) (the “Series E Designee”);
(b) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partners, L.P. or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”);
(c) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(e) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares holders of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and then outstanding shares of Common Stock held by the Key Holders who are then providing services to the Company as employees, consultants, officers or directors, which individuals shall initially be V▇▇▇▇▇ ▇▇▇▇▇▇ and S▇▇▇ ▇▇▇▇. Subject to the rights of the stockholders of the Company to remove a director for cause in accordance with applicable law, during the term of this Agreement, no director elected pursuant to Section 4.1(a) and (b) above, may be removed from office unless such removal is directed or approved by the affirmative vote or written consent of the holders entitled under Section 4.1(a) and (b) to designate such director. Each Stockholder hereby appoints the then held current Chief Executive Officer of the Company, as such Stockholder’s true and lawful proxy and attorney, with the power to act alone and with full power of substitution, to vote all of such Stockholder’s Shares as set forth in this Agreement and to execute all appropriate instruments consistent with this Agreement on behalf of such Stockholder if, and only if, such Stockholder (x) fails to vote or (y) attempts to vote (whether by all Stockholders (the “Stockholders’ Designees”proxy, in person or by written consent), provided that one in a manner which is inconsistent with the terms of this Agreement, all of such Stockholder’s Shares or execute such other instruments in accordance with the Stockholders’ Designees shall always be provisions of this Agreement within five (5) days of the Company’s then-current Chief Executive Officer; and
(f) One (1) individual designated or any other party’s written request for such Stockholder’s written consent or signature. The proxy and power granted by unanimous agreement each Stockholder pursuant to this Section are coupled with an interest and are given to secure the performance of the other directors then serving (the “Independent Director”). For purposes of such party’s duties under this Agreement: (i) . Each such proxy and power will be irrevocable for the term hereof. The proxy and power, so long as any individual who party hereto is designated for election to the Board pursuant to the foregoing provisions of this Section 2.1 is referred to below as a “Board Designee”; and (ii) any an individual, will survive the death, incompetency and disability of such party or any other individual Stockholder of Shares and, so long as any party hereto is an entity, will survive the merger or group reorganization of individuals and/or entities who has the right to designate one (1) such party or more Board Designees for election to the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicableany other entity holding Shares.
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Voting; Board Composition. Subject to the rights of the Stockholders stockholders of the Company to remove a director for cause in accordance with the applicable lawprovisions of the Delaware General Corporation Law, during the term of this Agreement, each Holder Stockholder agrees to vote (or consent pursuant to an action by written consent of the stockholders of the Company) all Company Stock now or hereafter directly or indirectly owned of record or beneficially by such HolderShares, or to cause such shares of shares of capital stock of the Company Stock to be voted, in such manner as may be necessary under the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended, or amended and restated, hereafter (the “Restated Certificate”) to elect (and maintain in office office) as members of the Company’s Board of Directors (the “Board”), the following seven (7) individualsdesignees or nominees:
(a) One The Company’s Chief Executive Officer, who shall initially by ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (the “CEO Director”), provided that if for any reason the CEO Director shall cease to serve as the Chief Executive Officer of the Company, the holders of record of the shares of Common Stock, exclusively and as a separate class, shall promptly vote their respective Shares (i) to remove the former Chief Executive Officer from the Board of Directors if such person has not resigned as a member of the Board of Directors; and (ii) to elect such person’s replacement as Chief Executive Officer of the Company as the new CEO Director.
(b) The CEO Director shall be entitled to designate one (1) individual designated from time to time in a writing delivered to director of the Company to represent the holders of Common Stock (the “Common Director” and signed by Bay Partners XIcollectively with the CEO Director, L.P. the “Common Directors”).
(c) For so long as at least twenty five percent (25%) of the initially issued shares of Series A Preferred Stock and Series A-1 Preferred Stock, as adjusted for stock splits, stock dividends, combinations, recapitalizations or any affiliated fund the like (collectivelytogether, the “BaySeries A/A-1 Preferred Stock”), remain outstanding, the holders of record of the shares of Series A/A-1 Preferred Stock, exclusively and voting together as a single class, shall be entitled to elect one (1) director of the Company (the “Series E DesigneeA/A-1 Director”);, who shall initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇.
(bd) For so long as OneBlood, Inc. or its affiliates (“OneBlood”) hold at least fifty percent (50%) of the shares of Series B Preferred Stock originally issued to OneBlood, as adjusted for stock splits, stock dividends, combinations, recapitalizations or the like, the “Series B Director” shall be nominated unilaterally by OneBlood. ▇▇▇▇▇▇ “Bud” ▇▇▇▇▇▇ shall initially be deemed to be the Series B Director. Notwithstanding the foregoing, if OneBlood fails to participate fully for its complete pro rata commitment in any Tranche Closing (as defined in and required by the Series B Agreement), then OneBlood shall forfeit its right to designate the Series B Director. Notwithstanding the foregoing and for the avoidance of doubt, OneBlood shall not forfeit its right to designate the Series B Director if it satisfies its obligation to make additional investments in the Company at any Tranche Closing by assigning, transferring or otherwise substituting other investor(s) to satisfy OneBlood’s commitment to make additional investments as permitted by the Series B Agreement. At any time when OneBlood does not hold at least fifty percent (50%) of the shares of Series B Preferred Stock originally issued to it or its affiliates (as adjusted for stock splits, stock dividends, combinations, recapitalizations or the like) or in the event that OneBlood forfeits its right to designate the Series B Director (as described above), then the Series B Director shall be nominated by the holders of a majority of the outstanding Series B Shares whereby such nomination shall take the form of a notice sent to each holder of Series B Shares soliciting nominations for the Series B Director and shall contain instructions that each holder of Series B Shares is to return such notice, indicating his, her or its nominations for the Series B Director, to the Secretary of the Company within ten (10) days of the effective date of such notice. After all notices have been received by the Secretary of the Company, the Stockholders shall elect the person nominated by holders of a majority of the outstanding Series B Shares. The Stockholders shall elect the Series B Director as a director elected by the holders of the outstanding Series B Shares, voting separately as a class.
(e) One (1) individual designated from time to time in a writing delivered to the Company and signed by Madrone Partnersindependent, L.P. outside person with relevant industry, scientific or any affiliated fund (collectively, “Madrone”) (the “Series D Designee”);
(c) One (1) individual designated from time to time in a writing delivered to the Company and signed by RockPort Capital Partners II, L.P. or any affiliated fund (collectively, “Rockport”) (the “Series C Designee”);
(d) One (1) individual designated from time to time in a writing delivered to the Company and signed by ThirdPoint LLC or any affiliated fund (the “Series B Designee”);
(e) Two (2) individuals designated from time to time in a writing delivered to the Company and signed by Stockholders who, at the time in question, hold shares of issued and outstanding Common Stock of the Company representing a majority of the voting power of all issued and outstanding shares of Common Stock of the Company then held by all Stockholders (the “Stockholders’ Designees”), provided that one of the Stockholders’ Designees shall always be the Company’s then-current Chief Executive Officer; and
(f) One (1) individual designated by unanimous agreement of the other directors then serving academic experience (the “Independent Director”)) to be agreed upon by the Common Directors, Series A/A-1 Director and Series B Director. For purposes Each of this Agreement: (i) any individual who is designated for election to the Board pursuant to Series A/A-1 Director, Series B Director, the foregoing provisions of this Section 2.1 Common Directors, and the Independent Director is referred to below as a “Board Designee”; .” Any director elected as provided in the preceding sentences may be removed with or without cause by, and (ii) any individualonly by, entitythe affirmative vote of the holders of the shares of the class, classes, or group series of individuals and/or entities who has capital stock entitled to elect such director or directors, given either at a special meeting of such stockholders duly called for that purpose or pursuant to a written consent of stockholders. At any meeting held for the right purpose of electing a director, the presence in person or by proxy of the holders of a majority of the outstanding shares of the class, classes, or series entitled to elect such director shall constitute a quorum for the purpose of electing such director. Subject to the rights of the stockholders of the Company to remove a director for cause in accordance with provisions of the Delaware General Corporation Law, during the term of this Agreement, no Stockholder shall take any action to remove an incumbent Board Designee or to designate one (1) or more a new Board Designees for election Designee unless such removal and/or designation of a Board Designee is approved in a writing signed by that class of Stockholders entitled to nominate and elect a Board Designee as set forth above in the Board pursuant to the foregoing provisions of this Section 2.2 is referred to below as a “Designator” or as “Designators,” as applicablepreceding paragraph.
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