BOARD NOMINATION AGREEMENT
This Board Nomination Agreement (this “Agreement”), dated as of December 10, 2014 (the “Effective Date”), is by and among Authentidate Holding Corp., a Delaware corporation (the “Company”) and the persons and entities listed on Schedule A hereto (collectively, the “Lazarus Group”, and individually a “member” of the Lazarus Group).
Unless otherwise specified herein, all of the capitalized terms used herein are defined in Section 6 hereof.
WHEREAS, the Lazarus Group has filed an amendment to its Schedule 13D on September 4, 2014, discussing certain understandings that the Lazarus Group has with respect to the composition of the Company’s Board of Directors (the “Board”); and
WHEREAS, each of the Company and the Lazarus Group have determined that it is in their best interests to enter into this Agreement.
NOW, THEREFORE, in consideration of and reliance upon the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
Section 1. Board Composition and Related Procedures.
(a) Subject to the terms and conditions of this Agreement (including the provisions of Section 2(a)) and provided he is an Independent Director (as defined herein), the Board shall take all action reasonably necessary to appoint Marc A. Horowitz (the “Lazarus Nominee”) to serve as a director of the Company until no earlier than the 2015 Annual Meeting and his successor is duly elected and qualified.
(b) In connection with the agreement set forth in Section 1(a), the Company shall, subject to its rights under Section 2: (i) if necessary to establish a vacancy on the Board, promptly increase the size of the Board by one (1) member and (ii) at all times during the Designation Period, include, and use its best efforts to cause the Board, whether acting through the Company’s Nominating and Corporate Governance Committee of its Board of Directors (the “Nominating Committee”) or otherwise, to include the Lazarus Nominee in the slate of nominees recommended to the stockholders of the Company for election as a director at any annual or special meeting of the stockholders held during the Designation Period (or, if permitted, by any action by written consent of the stockholders taken during the Designation Period) at or by which directors of the Company are to be elected.
(c) If a Board vacancy occurs during the Designation Period solely because of the death, disability, disqualification, resignation or removal of the Lazarus Nominee, the Lazarus Group shall be entitled to designate such person’s successor in accordance with the following conditions and compliance with Section 2(b) of this Agreement. In the event the Lazarus Group has the right under this Section 1(c) to designate a successor to the initial Lazarus Nominee, the Lazarus Group shall have the right (subject to Section 2(b) of this Agreement) to designate a reasonably qualified replacement for the Lazarus Nominee, with the consent of the Company (which consent shall not be unreasonably withheld or delayed), and the Company shall take all necessary action to implement the foregoing as promptly as practicable. In connection with the foregoing, unless otherwise expressly agreed upon by the Company in writing, a successor nominee designated pursuant to this Section1(c), shall be an Independent Director. Any such designated replacement who becomes a Board member shall be deemed to be a Lazarus Nominee for all purposes under this Agreement.
(d) If during the Designation Period the Lazarus Nominee is not nominated or elected to the Board because of his or her death, disability, disqualification, withdrawal as a nominee or such Lazarus Nominee is for any other reason unavailable or unable to serve on the Board, the Lazarus Group shall be entitled to promptly designate another nominee in accordance with the applicable provisions of Section 1(c) and Section 2(b) and the director position for which such Lazarus Nominee was nominated shall not be filled pending such designation.