In accordance with Delaware law and the Company’s Amended and Restated Bylaws (the “ Bylaws”), the Board will cause the Advisory Committee to initially be composed of four (4) members: the First New Director and three (3) other members of the Board serving on the Board prior to the execution of this Agreement, who will initially be Scott B. The Board and all applicable committees of the Board shall not increase the size of the Board (i) immediately following the conclusion of the 2023 Annual Meeting, to more than twelve (12) directors and (ii) following such time and prior to the expiration of the Standstill Period (as defined below), to more than thirteen (13) directors, in each case without the prior written consent of the Investor Group.Įffective immediately following the execution and delivery of this Agreement, the Board and all applicable committees thereof shall take such actions as are necessary to form a committee of the Board to be named the Capital Allocation Advisory Committee (the “ Advisory Committee”) to objectively support and make recommendations to the Board regarding, and support management’s review of, the Company’s capital allocation strategy. The Company will include the Observer (or any Second Replacement Director thereof, as applicable) in the Company’s proxy statement for the 2023 Annual Meeting, which shall provide that the Company intends to increase the size of the Board to twelve (12) directors and appoint the Observer (the “ Second New Director” and together with the First New Director, the “ New Directors”) to the Board immediately following the 2023 Annual Meeting.
The Company will include the First New Director (or any First Replacement Director thereof (as defined below), as applicable) in the Company’s slate of ten (10) nominees for election as directors of the Company at the 2023 Annual Meeting and will use commercially reasonable efforts to cause the election of the First New Director to the Board at the 2023 Annual Meeting (including the Board recommending that the Company’s stockholders vote in favor of the election of the First New Director in the Company’s proxy statement for the 2023 Annual Meeting and otherwise supporting the First New Director for election in a manner no less rigorous and favorable than the manner in which the Company supports its other nominees in the aggregate). As a condition to the Second New Director (or any Second Replacement Director (as defined below) thereof, as applicable) serving as the Observer, the Second New Director (or any Second Replacement Director thereof, as applicable) will have delivered an undertaking to the Company as set forth on Exhibit A (the “ Observer Undertaking”). The Observer will have the right to attend and participate, but not vote, at all meetings of the Board, the Advisory Committee (as defined below) and the Compensation & Talent Development Committee of the Board during this period (whether such meetings are held in person, telephonically or otherwise).
The Company will be entitled to withhold any information and exclude the Observer from any Board or Board committee meeting, or any portion thereof, as is reasonably determined by the Company to be necessary to protect the Company’s attorney-client privilege. The Company agrees that during the period commencing on the date hereof until the appointment of the Observer to the Board, the Observer will receive, on a confidential and restricted basis, copies of all documents distributed to the Board, including, without limitation, notice of all meetings of the Board, all written consents executed by the Board, all materials prepared for consideration at any meeting of the Board, and all minutes related to each meeting of the Board occurring on or after the date hereof contemporaneous with their distribution to the Board.
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