Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that if, and to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officers.
Appears in 3 contracts
Samples: Credit Agreement (LIVE VENTURES Inc), Credit Agreement (LIVE VENTURES Inc), Credit Agreement (LIVE VENTURES Inc)
Board Observation Rights. Cause Comvest (provided thata) For so long as Enso Ventures 2 Limited (“Enso”) holds at least 1,000,000 shares of Series B-1 Preferred Stock (as adjusted to stock splits, in the event that none stock dividends or any subdivision of Comvestshares), its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan it shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representativeindividual to attend each regularly scheduled, who shall: special and other meeting (a) receive prior notice (no later than such notice is given to the members of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and specialincluding telephonic meetings) of the board Board of directors Directors (or other comparable body) and of the equityholders of each Loan Party and including each committee of any such board the Board of directors (or other comparable body); (bDirectors) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that if, and to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid Company as a conflict of interest with respect to a material matter on the part of such non-voting observer or(the “Observer”). Without the consent of a majority of the Board of Directors, upon and consistent with the advice of legal counsel Observer shall not be permitted to participate in any meeting beyond his or her capacity as a silent observer. The Observer shall not be entitled to the Loan Partiesboard observation rights described in this Section 5.9(a) unless and until the Observer signs a confidentiality agreement in a form reasonably acceptable to the Company and Enso, is necessary pursuant to preserve an which the Observer agrees to hold in confidence and trust all information provided or obtained at or in connection with any such meeting that he or she has a right to observe. The Company may withhold any information and exclude any such Observer from any meeting or portion thereof if access to such information or attendance at such meeting could, in the determination of Company’s counsel, adversely affect the attorney-client privilege with respect between the Company and its counsel, or could result in disclosure of trade secrets or relates to any matter, then to the extent a discussion point of such issue would cause such a conflict of interest interest, or would result if such individual is employed by or affiliated with any competitor of the Company.
(b) For so long as Tekla Funds holds at least 1,000,000 shares of Series C Preferred Stock (as adjusted to stock splits, stock dividends or any subdivision of shares), it shall have the right to designate one individual to attend each regularly scheduled, special and other meeting (including telephonic meetings) of the Board of Directors (including each committee of the Board of Directors) of the Company as a non-voting observer (the “Tekla Observer”). Without the consent of a majority of the Board of Directors, the Tekla Observer shall not be permitted to participate in any meeting beyond his or her capacity as a silent observer. The Tekla Observer shall not be entitled to the board observation rights described in this Section 5.9(b) unless and until the Observer signs a confidentiality agreement in a form reasonably acceptable to the Company and Tekla Funds, pursuant to which the Tekla Observer agrees to hold in confidence and trust all information provided or obtained at or in connection with any such meeting that he or she has a right to observe. The Company may withhold any information and exclude any such Tekla Observer from any meeting or portion thereof if access to such information or attendance at such meeting could, in the loss determination of such Company’s counsel, adversely affect the attorney-client privilegeprivilege between the Company and its counsel, such issue may be discussed without such representative or could result in disclosure of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials trade secrets or related draft resolutions or consents. If any action is proposed relates to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu a point of a meeting, the Parent and the Borrower shall giveconflict of interest, or shall cause to be given, written notice thereof to if such representative individual is employed by or affiliated with any competitor of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersCompany.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Galera Therapeutics, Inc.), Investors’ Rights Agreement (Galera Therapeutics, Inc.), Investors’ Rights Agreement (Galera Therapeutics, Inc.)
Board Observation Rights. Cause Comvest (provided that, Borrower shall notify Lender in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all writing at least 10 Business Days in advance of the Term Loan time and place of any regularly scheduled meeting, or as soon as reasonably possible of any unscheduled meeting, of the Board of Directors or any similar governing body of Borrower or any Subsidiary (including without limitation telephone, conference call, and video meetings), and Lender shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members have a representative attend all meetings of the board Board of directors Directors of any similar governing body of Borrower or any Subsidiary (or other comparable bodyincluding without limitation telephone, conference call, and video meetings), the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsa nonvoting-observer capacity; provided, however, that ifsuch representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Borrower reserves the right to withhold any information and to the extent, an issue is to be discussed or otherwise arises at exclude such representative from any meeting of or portion thereof if access to such information or attendance at such meeting could reasonably be expected to adversely affect the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to between the extent a discussion Borrower and its counsel or result in disclosure of such issue would cause such trade secrets or a conflict of interest interest, or would result if such representative is a competitor of the Borrower. Borrower shall give Lender copies of all notices, minutes, consents and other materials Borrower or any Subsidiary provides to its directors in connection with said meetings, at the loss of same time such materials are provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Borrower reserves the right to withhold any information if access to such information could reasonably be expected to adversely affect the attorney-client privilegeprivilege between the Borrower and its counsel or result in disclosure of trade secrets or a conflict of interest, such issue may be discussed without or if such representative is a competitor of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consentsthe Borrower. If any action is proposed Any information provided to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and Lender shall be delivered not later than subject to the date upon which any member confidentiality provisions of any such board Section 8.3 of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersAgreement.
Appears in 2 contracts
Samples: Loan and Security Agreement (Shotspotter, Inc), Loan and Security Agreement (Shotspotter, Inc)
Board Observation Rights. Cause Comvest For so long as the Xxxxx Indemnified Parties own together at least 200 million shares of VIASPACE Common Stock, VIASPACE hereby grants to Xxxxx the right to appoint two individuals to serve as non-voting observers (provided thateach, in a “Non-Voting Observer”) to the VIASPACE Board and any committee thereof. In the event that none of Comvesta vacancy caused by the resignation or other cessation of service of any Non-Voting Observer, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan Xxxxx shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given appoint a new Non-Voting Observer in substitution thereof. Any Non-Voting Observer shall be permitted to the members attend meetings of each of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party VIASPACE Board and each such committee of any such board of directors (in person or other comparable body); (b) be entitled to attend (ortelephonically, at the option of the Non-Voting Observer. Each Non-Voting Observer shall be entitled to be present at all meetings of the VIASPACE Board and each committee thereof and such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members observer shall be notified of any meeting of the VIASPACE Board or committee, including such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same meeting’s time and place, in the same manner as Directors, and shall have the same is furnished access to information (including any copies of all materials disseminated to the Directors or made available) members of the committees thereof), including, without limitation, with respect to such members the business and equityholders; operations of VIASPACE, and (d) at the same time as the Directors, and shall be entitled to participate in all discussions conducted at such meetings; provided, however, that ifand consult with, and make proposals and furnish advice to, the Directors or committee without voting. The VIASPACE Board hold at least one meeting (each a “Quarterly Meeting”) on a date during each fiscal quarter. Within a reasonable time after each Quarterly Meeting, VIASPACE shall cause minutes of such Quarterly Meeting to be delivered to the extent, an issue is to be discussed or otherwise arises at any Directors and each Non-Voting Observer. VIASPACE will notify each Non-Voting Observer of each meeting of the board VIASPACE Board reasonably in advance of, and in any event, at least ten (10) business days prior to, any such meeting, unless such meeting is convened to address an emergency matter requiring immediate attention of directors (or comparably body) of any Loan Party whichthe VIASPACE Board, in which case the reasonable good faith judgment notice of such board of directors (or comparable body) is not appropriate to meeting may be discussed given within the time period provided for such notices in the presence governing Organizational Documents (but in no event less than 48 hours prior to such meeting). The Non-Voting Observer will agree to comply with VIASPACE’s confidentiality and xxxxxxx xxxxxxx policy applicable to all directors. Notwithstanding the foregoing, the Non-Voting Observer will be excluded from meetings, and the right of such representative of Comvest in order the Non-Voting Observer to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer orreceive materials will be restricted, upon and consistent with the advice of legal counsel (x) to the Loan Parties, is necessary to preserve an attorneyextent that the Non-Voting Observer’s presence or receipt of information would affect the attorney client privilege with respect its outside counsel and (y) to enable the directors to hold confidential communications concerning VIASPACE’s interactions with Xxxxx, VGE or any matterof its Affiliates, then to all of which communications will be segregated and held separately from other matters brought before the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersBoard.
Appears in 2 contracts
Samples: Recapitalization Agreement (VIASPACE Green Energy Inc.), Recapitalization Agreement (VIASPACE Inc.)
Board Observation Rights. Cause Comvest If a Holder (provided that, in other than the event that none of Comvest, Additional Purchaser or its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lendertransferees) to have (a) possesses the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given for nomination to the members Board its nominee pursuant to Section 2.1(a), or (b) no longer possesses a right to designate for nomination to the Board its nominee pursuant to Section 2.1(a) because such Holders and its Affiliates hold less than an aggregate of 200,000 shares of Series A Preferred Stock (as adjusted for stock splits, stock combinations and the like), but such Holder and its Affiliates hold at least an aggregate of 2,000,000 shares of the board Common Stock (calculated assuming the exercise of directors (all rights, options, warrants to purchase Common Stock or other comparable body), the equityholderssecurities convertible or exchangeable for shares of Common Stock, and the committee members, as applicable) exchange or conversion of all meetings (both regular and special) of the board of directors (securities convertible or other comparable body) and of the equityholders of each Loan Party and each committee of any exchangeable for Common Stock), then such board of directors (or other comparable body); (b) Holders shall be entitled to attend designate one individual to serve as a Board Observer. While the Additional Purchaser holds 100,000 or more shares of Series A Preferred Stock (oras adjusted for stock splits, at stock combinations and the option of such representativelike), monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to then the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) Additional Purchaser shall be entitled to participate in designate one individual to serve as a Board Observer. Any such Board Observer designated pursuant to this Section will be invited to attend all discussions conducted at such meetings; provided, however, that if, meetings of the Board and any Board committees as an observer and to receive copies of all materials and communications provided to the extentBoard and Board committees when so distributed. The Board Observers will not be excluded from any portion of Board meetings, an issue is to be discussed Board committee meetings or otherwise arises at any meeting Board discussions except for those portions (x) in which the Company's counsel communicates with the Board on matters where Board Observer's attendance would result in loss of the board of directors attorney-client privilege for the Company and (or comparably bodyy) of any Loan Party in which, in the reasonable good faith judgment of such board counsel to the Company, participation of directors (or comparable body) the Board Observers is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of under applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors law.
(or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and d) Section 2.8 shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent amended and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth restated in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officers.its entirety as follows:
Appears in 2 contracts
Samples: Securities Purchase Agreement, Stock Trading Agreement, Stockholders Agreement, Investor Rights Agreement (Leaf Mountain Co LLC), Securities Purchase Agreement, Stock Trading Agreement, Stockholders Agreement, Investor Rights Agreement (Electric City Corp)
Board Observation Rights. Cause Comvest (provided thatFollowing the Closing, in the event that none of Comvestfor so long as a Sandler Purchaser, together with its Affiliates and Persons who share a common discretionary investment adviser with such Sandler Purchaser, owns 1% or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share more of all of the Term Loan shall outstanding shares of Common Stock (counting for such purposes all shares of Common Stock into or for which any securities owned by such Sandler Purchaser are directly or indirectly convertible or exercisable) or until Sandler X’Xxxxx Asset Management no longer wants to have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest Board Observation Rights, Sandler X’Xxxxx Asset Management shall be deemed to be a reference to such Lender) entitled to have one (1) representative attend (either in person or telephonically) all meetings of the Board of Directors of the Company in a nonvoting observer capacity, which will include the right and ability to participate in discussions of the Board, the right to designate one representativereceive notice of all meetings of the Company’s Board of Directors and the right to receive copies of all notices, who shall: (a) receive prior notice (no later than such notice is given minutes, written consents, and other materials that it provides to the members of the board of directors (or other comparable body)Board, the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in so provided to the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsBoard; provided, however, that ifSandler X’Xxxxx Asset Management shall, and shall cause each of its representatives who may have access to any of the extent, an issue is to be discussed or otherwise arises information made available at any meeting of the board Company’s Board of directors (Directors or comparably body) provided by the Company to its Board of Directors, hold in confidence and not disclose or use, directly or indirectly, any Loan Party whichsuch information, other than in connection with Sandler X’Xxxxx Asset Management’s investment in the reasonable good faith judgment of Company; provided further, that the Company reserves the right not to provide information to Sandler X’Xxxxx Asset Management or its representatives and to exclude them from any meeting or portion thereof if attendance at such board of directors (or comparable body) is not appropriate to be discussed in meeting by them would adversely affect the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege between the Company and its counsel or if any of Sandler X’Xxxxx Asset Management or its representatives is or becomes a competitor, or affiliated in any manner with respect a competitor, of the Company (but must disclose to any matter, then to Sandler X’Xxxxx Asset Management that the extent a discussion of such issue would cause Board is having such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable bodymeeting), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officers.
Appears in 1 contract
Board Observation Rights. Cause Comvest (provided thatThe Company will, in and will cause Parent to, give the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share Holders actual notice of all regular meetings and all special meetings of the Term Loan shall have Company’s and the rights afforded to Comvest under this Section 5.13 Parent’s Boards of Directors and all references in this Section 5.13 committees thereof, will permit at least one (1) person designated from time to Comvest shall time by the MassMutual Investors as a whole and up to two (2) persons designated from time to time by RSTW to attend such meetings as observers, and will provide each Holder with all information provided to the directors of the Company and/or the Parent. Such regular meetings will be deemed to be held at least quarterly and at least a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to majority of the members of the board Board of directors (or other comparable body), the equityholdersDirectors must be present at such meetings. The Company will, and will cause the committee membersParent to, as applicable, reimburse at least one (1) of all meetings person designated from time to time by the MassMutual Investors as a whole and up to two (both regular 2) persons designated from time to time by RSTW for reasonable out-of-pocket expenses incurred traveling to and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all attending such meetings; . Each Holder agrees that such Holder and its designees shall not disclose any confidential information obtained in connection with this Section 6.25 to any Person (cother than Persons in a confidential relationship with such Holder) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) unless such Person has agreed in writing to the members of any maintain such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsinformation confidential; provided, however, that if, and nothing herein shall be deemed to prevent the extent, an issue disclosure of any confidential information if such disclosure is (i) required to be discussed made in a judicial, administrative or otherwise arises at governmental proceeding, (ii) required by any meeting applicable law or regulation, (iii) made to any governmental agency or regulatory body having or claiming authority over any aspect of such Holder’s or its Affiliates’ businesses in connection with the exercise of such authority or claimed authority, (iv) subject to subpoena, (v) made on a confidential basis as such Holder deems reasonably necessary or appropriate to any of its investors, any bank or financial institution and/or counsel to or other representatives of such investors, bank or financial institution, or (vi) made to any proposed future purchaser of any Senior Subordinated Notes or Warrant; provided, that, such proposed purchaser executes a confidentiality agreement in favor of the board of directors (Company or comparably body) of any Loan Party whichthe Parent, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersas applicable.
Appears in 1 contract
Samples: Note Purchase Agreement (Kenan Advantage Group Inc)
Board Observation Rights. Cause Comvest (provided that, The Administrative Agent may in the event that none of Comvest, its Affiliates and or Related Funds is discretion from time to time designate a Lender, then the Lender with the then greatest Pro Rata Share of all representative of the Term Loan shall have Lenders (the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender“Board Observer”) to have the right act as its non-voting representative to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members attend meetings of the board of directors managers or Board of Directors (or other comparable similar managing body)) of any Loan Party. Each Loan Party will (i) give advance notice to the Board Observer of all meetings of the managing body of such Loan Party and all proposals to such body for action without a board meeting, in accordance with the equityholdersbylaws of such Loan Party, (ii) allow such representative to attend all such meetings, in accordance with the bylaws of such Loan Party, and (iii) subject to the provisions of Section 10.17, and the committee members, as applicable) withholding of all meetings (both regular and special) any materials based on a conflict of interest that the board managing body of directors (or other comparable body) and of the equityholders of each such Loan Party believes in good faith exists between such Loan Party and each committee the Administrative Agent with respect to matters addressed by the materials in question, provide the Board Observer with copies of any all written materials distributed to such board of directors or managers (or other comparable similar body); (b) be entitled to attend (orin connection with such meetings or proposals for action without a meeting, at the option including, upon request of such representativeBoard Observer, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetingsprevious actions and proceedings, which are furnished (or made available) to the members of any provided that, such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) Board Observer shall not be entitled to participate in all any portion of discussions conducted at such meetings; providedor receive any portion materials directly relating to a refinancing of this Agreement or that relate to any legally privileged material. In the event the Administrative Agent fails to designate a non-voting representative to attend meetings pursuant to this Section 5.14, howevereach Loan Party will send materials that would otherwise be provided under this Section 5.14 to the Administrative Agent in compliance with Section 10.1. The Board Observer may be excluded from any portion of any meeting and the Board Observer or the Administrative Agent, that ifif no Board Observer has been designated, may be denied access to any portion of any board materials if and to the extent, an issue is extent (a) access to be discussed such information or otherwise arises attendance at such meeting or portion thereof would adversely affect any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof b) access to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of information or attendance at such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officers.meeting
Appears in 1 contract
Samples: Credit Agreement
Board Observation Rights. Cause Comvest (provided that, The Administrative Agent may in the event that none of Comvest, its Affiliates and or Related Funds is discretion from time to time designate a Lender, then the Lender with the then greatest Pro Rata Share of all representative of the Term Loan shall have Lenders (the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender“Board Observer”) to have the right act as its non-voting representative to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members attend meetings of the board of directors managers or Board of Directors (or other comparable similar managing body)) of any Loan Party. Each Loan Party will (i) give advance notice to the Board Observer of all meetings of the managing body of such Loan Party and all proposals to such body for action without a board meeting, in accordance with the equityholdersbylaws of such Loan Party, (ii) allow such representative to attend all such meetings, in accordance with the bylaws of such Loan Party, and (iii) subject to the provisions of Section 10.17, and the committee members, as applicable) withholding of all meetings (both regular and special) any materials based on a conflict of interest that the board managing body of directors (or other comparable body) and of the equityholders of each such Loan Party believes in good faith exists between such Loan Party and each committee the Administrative Agent with respect to matters addressed by the materials in question, provide the Board Observer with copies of any all written materials distributed to such board of directors or managers (or other comparable similar body); (b) be entitled to attend (orin connection with such meetings or proposals for action without a meeting, at the option including, upon request of such representativeBoard Observer, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetingsprevious actions and proceedings, which are furnished (or made available) to the members of any provided that, such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) Board Observer shall not be entitled to participate in all any portion of discussions conducted at such meetings; provided, however, that if, and to the extent, an issue is to be discussed or otherwise arises at receive any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect portion materials directly relating to a material matter on refinancing of this Agreement or that relate to any legally privileged material. In the part of such event the Administrative Agent fails to designate a non-voting observer orrepresentative to attend meetings pursuant to this Section 5.14, upon and consistent with the advice of legal counsel each Loan Party will send materials that would otherwise be provided under this Section 5.14 to the Loan Parties, is necessary to preserve an attorney-client privilege Administrative Agent in compliance with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest Section 10.1. The Board Observer may be excluded from distribution any portion of applicable portions any meeting and the Board Observer or the Administrative Agent, if no Board Observer has been designated, may be denied access to any portion of related any board materials if and to the extent (a) access to such information or related draft resolutions attendance at such meeting or consents. If portion thereof would adversely affect any action is proposed attorney- client privilege, (b) access to such information or attendance at such meeting or portion thereof could reasonably be taken by any such board expected to result in disclosure of directors trade secrets, (c) the Administrative Agent, the Loan Documents or other comparable body)material debt financing arrangements are the subject matter under discussion, equityholders and/or committee or (d) if prohibited by written consent Governmental Requirement, in lieu of a meetingeach case, to the Parent and extent that the Borrower shall give, or shall cause has promptly delivered to be given, written notice thereof the Administrative Agent for distribution to such representative the Lenders a statement of Comvest, which notice shall describe in reasonable detail the nature and substance an Authorized Officer of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to certifying the basis on which such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersmaterials are being withheld.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Board Observation Rights. Cause Comvest Until such time as all Obligations (provided that, as defined in the event that none of ComvestMaster Security Agreement) have been indefeasibly paid in full, its Affiliates and or Related Funds is a Lenderthe Purchasers will be entitled to the following board observation rights (“Board Observation Rights”): the Company shall, then upon the Lender with the then greatest Pro Rata Share of all request of the Term Loan shall have Agent, permit one representative of the rights afforded Purchasers to Comvest under this Section 5.13 and attend all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members meetings of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board Company (the “Board of directors (or other comparable bodyDirectors”) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that if, and to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer orcapacity, upon which observation right shall include the ability to observe discussions of the Board of Directors, and consistent shall provide such representative with copies of all notices, minutes, written consents, and other materials that it provides to members of the advice Board of Directors, at the time it provides them to such members. The observation right may be exercised in person or via telephone or videophone participation. Each Purchaser agrees, on behalf of itself and any representative exercising the observation rights set forth herein, that so long as it shall exercise its observation right (i) it shall hold in strict confidence pursuant to a confidentiality and non- disclosure agreement (in form and substance satisfactory to each Purchaser) all information and Directors and to act in a fiduciary manner with respect to all information so provided (provided that this shall not limit its ability to discuss such matters with its officers, directors or legal counsel counsel, as necessary), and (ii) the Board of Directors may withhold from it certain information or material furnished or made available to the Loan Parties, is necessary to preserve an Board of Directors or exclude it from certain confidential “closed sessions” of the Board of Directors if the furnishing or availability of such information or material or its presence at such “closed sessions” would jeopardize such Company’s attorney-client privilege with respect to any matter, then to or if the extent a discussion Board of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the sameDirectors otherwise reasonably so requires. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, Board Observation Rights set forth in this Section 5.13 with respect to meetings shall automatically terminate and be of Borrower’s board no further force or effect upon the indefeasibly payment in full of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersall Obligations (as defined in the Master Security Agreement).
Appears in 1 contract
Samples: Securities Purchase Agreement (Elec Communications Corp)
Board Observation Rights. Cause Comvest (provided thatUntil at least one of the Xxxxxxxxx Nominees has been appointed to the respective Boards of Directors of the Company and each Bank Entity pursuant to Section 5(a) above, Investor may designate a representative, reasonably acceptable to the Company Board of Directors, who shall be invited by the Company and each such Bank Entity to attend, in the event that none of Comvesta nonvoting observer capacity, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all their respective Board meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (orand, at the option of such Investor’s representative, monitor by telephone) all at each of the respective committees of the Boards of Directors of the Company and each Bank Entity for which such meetings; (c) receive Investor’s representative qualifies and, in that capacity, shall give such representative copies of all notices, informationminutes, reports consents, and minutes of meetings, which are furnished (or made available) other materials that it provides to the members of any such board of its directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) provided to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsdirectors; provided, however, that ifsuch representative shall agree, in writing, on terms reasonably acceptable to the Company and the Bank, to hold in confidence and trust, all information so provided or to which such representative will have access while attending any such Board or committee meetings and to not make any use of any such information except for the extentsole and exclusive benefit of the Company and the Bank Entities, an issue is to be discussed or otherwise arises at the same extent as if such representative was a member of the Boards of Directors of the Company and such Bank Entities; and provided, further, that the Company and each such Bank Entity reserves the right (which it will exercise reasonably) to withhold any information and to exclude such representative from any meeting of or portion thereof if access to such information or attendance at such meeting (i) could adversely affect the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege between the Company and/or the Bank Entity and its counsel, (ii) could result in disclosure of trade secrets or competitively sensitive information or create a conflict of interest, (iii) would give the Investor representative access to, or could result in the disclosure to such representative or to the Investor or any of its affiliates, of any non-public personal customer information or any financial or other records or data of or in the possession of any Bank Entity pertaining to any customers or prospective customers of any such Bank Entity, including with respect to any matterpast, then to present or future banking transactions between any Bank Entity and any such customer or prospective customer; or (iv) would give the extent a discussion of such issue would cause such a conflict of interest Investor representative access to, or would could result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof disclosure to such representative or his or her affiliates or to Investor or any of Comvestits affiliates, which notice shall describe in reasonable detail of or with respect to any communications (written or oral) from or to any federal or state banking authority or agency that has regulatory jurisdiction over the nature and substance Company or any such Bank Entity if the disclosure thereof to the Investor representative or to Investor or any of such proposed action and shall be delivered not later than the date upon which its affiliates would violate federal or state laws or government regulations or any member order, directive or instruction of any such board of directors (bank regulatory authority or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersagency.
Appears in 1 contract
Samples: Investor Rights Agreement (Pacific Mercantile Bancorp)
Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice So long as Hotung Venture Capital Corporation, Shengtung Venture Capital Corporation, Daitung Venture Capital Corporation and Xxxxx—Xxxx XX Venture Capital Corporation (no later than such notice is given collectively, “Hotung”) collectively holds at least 500,000 shares (as adjusted for any stock splits or recapitalizations) of Registrable Securities, the Company agrees to permit one observer (the “Observer”) acceptable to the members Company, whom will be designated by and represents Hotung to be present at all meetings of the board Company’s Board of directors (Directors or other comparable body), the equityholdersany committee thereof, and the committee members, as applicable) of all meetings (both regular and special) of Company will give the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option Observer notice of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such meetings at the same time and in notice is provided or delivered to members of the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsBoard of Directors; provided, however, that if, and to the extent, an issue is to such Observer may be discussed or otherwise arises at excluded from any meeting of the board of directors (or comparably body) of any Loan Party whichportion thereof if, in the reasonable good faith judgment opinion of a majority of the directors present, such board of directors (exclusion is necessary or comparable body) is not appropriate based on the subject matter to be discussed discussed. Materials that are sent to the directors before a meeting of the Board of Directors will be sent simultaneously by the Company to the Observer; provided, however, that the Company may exclude from the materials sent to the Observer any materials that the Company believes relate directly and substantially to any matter in which Hotung, as applicable, has a material business or financial interest (other than by reason of its interests as a Company stockholder).
(b) In addition and notwithstanding the foregoing, if the Company receives advice from legal counsel that there is a substantial risk that discussing a specified matter in the presence of a person who is not a member of the Board of Directors, or sending specified materials to such representative person, would result in the Company’s loss of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any a specified matter, then the Company may exclude the Observer or exclude such materials from the materials sent to such person, or both, provided that the extent Company will promptly notify the Observer that any exclusion from a discussion of such issue would cause such a conflict of interest meeting or would result in the loss of such materials distributed to directors was effected to preserve its attorney-client privilege, such issue may be discussed without such representative privilege or avoid conflicts of Comvest presentinterest. Hotung agrees to maintain, and such representative to cause its Observer and their respective officers, directors, employees, and agents to maintain, the confidentiality of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken Proprietary Information obtained by any such board of directors Hotung and/or its Observer.
(or other comparable body), equityholders and/or committee c) The rights granted under this Section 4 are not assignable by written consent in lieu Hotung and shall expire upon the closing of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersQualified Offering.
Appears in 1 contract
Board Observation Rights. Cause Comvest Until such time as all Obligations (provided that, as defined in the event that none of ComvestMaster Security Agreement) have been indefeasibly paid in full, its Affiliates and or Related Funds is a Lenderthe Purchasers will be entitled to the following board observation rights (“Board Observation Rights”): the Company shall, then upon the Lender with the then greatest Pro Rata Share of all request of the Term Loan shall have Agent, permit one representative of the rights afforded Purchasers to Comvest under this Section 5.13 and attend all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members meetings of the board of directors (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board Company (the “Board of directors (or other comparable bodyDirectors”) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that if, and to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer orcapacity, upon which observation right shall include the ability to observe discussions of the Board of Directors, and consistent shall provide such representative with copies of all notices, minutes, written consents, and other materials that it provides to members of the advice Board of Directors, at the time it provides them to such members. The observation right may be exercised in person or via telephone or videophone participation. Each Purchaser agrees, on behalf of itself and any representative exercising the observation rights set forth herein, that so long as it shall exercise its observation right (i) it shall hold in strict confidence pursuant to a confidentiality and non-disclosure agreement (in form and substance satisfactory to each Purchaser) all information and materials that it may receive or be given access to in connection with meetings of the Board of Directors and to act in a fiduciary manner with respect to all information so provided (provided that this shall not limit its ability to discuss such matters with its officers, directors or legal counsel counsel, as necessary), and (ii) the Board of Directors may withhold from it certain information or material furnished or made available to the Loan Parties, is necessary to preserve an Board of Directors or exclude it from certain confidential “closed sessions” of the Board of Directors if the furnishing or availability of such information or material or its presence at such “closed sessions” would jeopardize such Company’s attorney-client privilege with respect to any matter, then to or if the extent a discussion Board of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the sameDirectors otherwise reasonably so requires. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, Board Observation Rights set forth in this Section 5.13 with respect to meetings shall automatically terminate and be of Borrower’s board no further force or effect upon the indefeasibly payment in full of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersall Obligations (as defined in the Master Security Agreement).
Appears in 1 contract
Board Observation Rights. Cause Comvest Unless York Street Mezzanine Partners, L.P. and its “Affiliates” (provided that, as defined in the event that none Stockholders Agreement), including York Street Mezzanine Partners II, L.P., shall have exercised their right to appoint an observer to the Board of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all Directors of the Term Loan Company pursuant to Section 2.5(e) of the Stockholders Agreement, the York Street Purchasers shall have the rights afforded right by written notice delivered to Comvest under this Section 5.13 and all references in this Section 5.13 the Company to Comvest appoint one (1) observer who shall be deemed to be a reference to such Lenderentitled (i) to have receive contemporaneously the right to designate one representative, who shall: (a) receive prior same notice (no later than such notice is given to the members of the board of directors (or and other comparable body), the equityholders, and the committee members, as applicable) materials in respect of all meetings (both regular and special) (or written consents) of the board Board of directors (or other comparable body) and Directors of the equityholders of each Loan Party Company and Bare Escentuals Beauty, Inc. and each committee thereof as are furnished to members of any said Boards of Directors or such board of directors committee, (or other comparable body); (bii) be entitled to attend all meetings (or, at the option of such representative, monitor by telephone) and review all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) written consents prior to the members execution thereof) of any such board the Board of directors (or other comparable body) and/or Directors of the Company and Bare Escentuals Beauty, Inc. and each committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; thereof and (diii) be entitled to participate in all discussions conducted at such meetingsmeetings (or with respect to actions to be taken by written consent) of the Board of Directors of the Company and Bare Escentuals Beauty, Inc. and each committee thereof; provided, however, that ifsuch observers shall not constitute members of the Board of Directors of the Company or Bare Escentuals Beauty, Inc. or any committee thereof and shall not be entitled to vote on any matters presented to said Board of Directors of the Company or Bare Escentuals Beauty, Inc. or any committee thereof. Notwithstanding anything to the contrary, the rights granted to the observer (including the right to receive all materials, notices, minutes, consents and forms of consents in lieu of meetings) shall be temporarily suspended if and to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment opinion of the Board of Directors of the Company or Bare Escentuals Beauty, Inc., as applicable, the observer’s attendance at any such board of directors meeting or portion thereof (i) violates any law or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict company policy regarding conflicts of interest with respect interested members of the Board of Directors of the Company or Bare Escentuals, Inc., as applicable, as applied generally to meetings of the Board of Directors of the Company or Bare Escentuals Beauty, Inc. or (ii) otherwise could violate the fiduciary duties of the Board of Directors of the Company or Bare Escentuals Beauty, Inc. or constitute a material matter on the part waiver of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an any attorney-client privilege that may exist in connection with respect to such meeting or any matterportion thereof, then as advised by outside counsel to the extent a discussion of such issue would cause such a conflict of interest Company or would result in the loss of such attorneyBare Escentuals Beauty, Inc. The reasonable travel and out-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken of-pocket expenses incurred by any such board observer in attending any such meetings shall be reimbursed by the Company or Bare Escentuals Beauty, Inc., as applicable. Following an underwritten public offering of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meetingthe Company’s common stock, the Parent York Street Purchasers shall no longer have the right to appoint an observer to the Board of Directors of the Company or Bare Escentuals Beauty, Inc. Notwithstanding the foregoing and the Borrower shall giveSection 10.16 of this Agreement, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and provided to the limitations thereon, set forth in York Street Purchasers under this Section 5.13 with respect 5.8 shall terminate upon any assignment by the York Street Purchasers of their rights under this Agreement or under the Senior Subordinated Note Documents, other than an assignment to meetings Affiliates permitted under Section 10.16(i) of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersthis Agreement.
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Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan a) Agent shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members have a single representative attend all meetings of the board of directors (or other comparable bodyequivalent) of Borrower and any Subsidiary, as an observer without the right to vote (the “Observer”). Borrower reserves the right to withhold any information and to exclude the Observer from any meeting of the Board or portion thereof if the Borrower reasonably determines that (a) the access to such information or attendance at such meeting would adversely affect the attorney-client privilege between Borrower and its counsel, (b) the access to such information or attendance at such meeting would result in disclosure of trade secrets or a conflict of interest to Observer, (c) or the Observer is a competitor of the Company or an Affiliate of a competitor of the Company. Initially, the equityholders, and the committee members, as applicableObserver shall be Solomon Park. Observer shall be provided written notice (which may be via email) of all regular meetings (both regular and special) of the such entities’ board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) provided to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that ifany other director, and to the extent, an issue is to at least two full business days’ prior written notice (which may be discussed or otherwise arises at any meeting via email) of the all special meetings of such entities’ board of directors (thereof unless due to the emergency nature of the matters to be addressed at the meeting 48 hours’ written notice is not reasonably practical. Borrower or comparably body) Subsidiary, as applicable, shall concurrently provide Observer with copies of all notices, minutes, consents and other materials it provides to any Loan Party whichmember of such Board or any committee, provided that any materials protected from discovery by the attorney-client privilege or the attorney work product privilege, any materials necessary or advisable in the reasonable good faith judgment determination of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter between Borrower, on the part of such non-voting observer orone hand, upon and consistent with Agent and Lenders, on the advice of legal counsel other hand, and any trade secrets may be excluded. All Confidential Information provided to Observer pursuant to this Section 6.14 shall be subject to the Loan Parties, is necessary to preserve an attorneyconfidentiality obligations under Section 13.12. Xxxxxxxx will reimburse Observer for all reasonable out-client privilege of-pocket expenses incurred by Observer in connection with respect attendance at any such meetings.
(b) In addition to any matter, then other rights or remedies to which the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue Agent may be discussed without such representative entitled, the Loan Parties agree to and will indemnify and hold harmless Agent, Lenders, Observer, their Affiliates and all of Comvest presenttheir respective successors, assigns, officers, directors, employees, attorneys, and such representative agents from and against any and all losses, claims, obligations, liabilities, deficiencies, diminutions in value, penalties, causes of Comvest may be excluded from distribution action, damages, costs, and expenses (including, without limitation, costs of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body)investigation and defense, equityholders and/or committee by written consent in lieu of a meeting, the Parent reasonable attorneys’ fees and the Borrower shall giveexpenses) that they, or shall cause to be givenany of them, written notice thereof to such representative of Comvestmay suffer, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnishincur, or shall cause be responsible for, arising or resulting from the exercise of rights pursuant to be furnished, to such representative a copy of each such written consent not later than five (5Section 6.14(a) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersand/or service or status as an “Observer”.
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Board Observation Rights. Cause Comvest (provided that, in i) For so long as the event that none Purchasers other than Medtronic and Tail Wind (the “Belmont Group”) (together with its affiliates) beneficially owns at least an aggregate of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all 2,000,000 shares of the Term Loan Company’s Common Stock (assuming exercise of the Warrants and conversion of Series A Preferred to Common Stock), (A) the Company shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given deliver to the members of the board of directors (or other comparable body)Belmont Group, the equityholders, and the committee members, as applicable) of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as such information is supplied to members of the same is furnished Company’s Board of Directors, (or made available1) written notice of all meetings of the Company’s Board of Directors, including without limitation, telephonic meetings, and all agendas and other information distributed in connection with such meetings, (2) all written actions and consents prepared for distribution to and consideration by the Company’s Board of Directors, together with all information distributed in connection with such members written actions and equityholders; consents, and (d3) minutes of all meetings of the Company’s Board of Directors, and (B) one representative designated by the Belmont Group shall be entitled permitted to attend, in a non-voting capacity, all meetings of the Company’s Board of Directors. The Company shall make reasonable efforts to permit such representative to participate in all discussions conducted at meetings by telephone if such meetings; providedrepresentative is unable to attend in person. Notwithstanding the provisions of this Section 4(g)(i), however, that if, and to the extent, an issue is to Belmont Group representative shall be discussed or otherwise arises at any meeting excluded from such portions of the board Board of directors (Directors meeting that he or comparably body) she is attending if the Board of any Loan Party which, Directors so requests after determining in the reasonable good faith judgment of that such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, exclusion is necessary to preserve an the attorney-client privilege with respect privilege, to any matter, then to the extent a discussion of such issue would cause such prevent a conflict of interest or would result to prevent such Belmont Group representative’s participation in discussions relating to disputes with the Belmont Group and/or its affiliates.
(ii) For so long as Medtronic (together with its affiliates) beneficially owns at least an aggregate of 2,000,000 shares of the Company’s Common Stock (assuming exercise of the Warrants and conversion of Series A Preferred to Common Stock), (A) the Company shall deliver to Medtronic, at the same time and in the loss same manner as such information is supplied to members of the Company’s Board of Directors, (1) written notice of all meetings of the Company’s Board of Directors, including without limitation, telephonic meetings, and all agendas and other information distributed in connection with such meetings, (2) all written actions and consents prepared for distribution to and consideration by the Company’s Board of Directors, together with all information distributed in connection with such written actions and consents, and (3) minutes of all meetings of the Company’s Board of Directors, and (B) one representative designated by Medtronic shall be permitted to attend, in a non-voting capacity, all meetings of the Company’s Board of Directors. The Company shall make reasonable efforts to permit such representative to participate in meetings by telephone if such representative is unable to attend in person. Notwithstanding the provisions of this Section 4(g)(ii), the Medtronic representative shall be excluded from such portions of the Board of Directors meeting that he or she is attending if the Board of Directors so requests after determining in good faith that such exclusion is necessary to preserve the attorney-client privilege, to prevent a conflict of interest or to prevent such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed Medtronic representative’s participation in discussions relating to be taken by any such board of directors (or other comparable body), equityholders disputes with Medtronic and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersits affiliates.
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Samples: Securities Purchase Agreement (Cambridge Heart Inc)
Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan a) Agent shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice (no later than such notice is given to the members have a single representative attend all meetings of the board of directors of Borrower and any Subsidiary, as an observer without the right to vote (the “Observer”). Borrower reserves the right to withhold any information and to exclude the Observer from any meeting of the Board or other comparable body)portion thereof if the Borrower reasonably determines that (a) the access to such information or attendance at such meeting would adversely affect the attorney-client privilege between Borrower and its counsel, (b) the access to such information or attendance at such meeting would result in disclosure of trade secrets or a conflict of interest to Observer, (c) or the Observer is a competitor of the Company or an Affiliate of a competitor of the Company. Initially, the equityholders, and the committee members, as applicableObserver shall be Xxxx Xxxxxx-Xxxxxxx. Observer shall be provided written notice (which may be via email) of all regular meetings (both regular and special) of the such entities’ board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) provided to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, however, that ifany other director, and to the extent, an issue is to at least two full business days’ prior written notice (which may be discussed or otherwise arises at any meeting via email) of the all special meetings of such entities’ board of directors (thereof unless due to the emergency nature of the matters to be addressed at the meeting 48 hours’ written notice is not reasonably practical. Borrower or comparably body) Subsidiary, as applicable, shall concurrently provide Observer with copies of all notices, minutes, consents and other materials it provides to any Loan Party which, in the reasonable good faith judgment member of such board of directors (or comparable body) is not appropriate to be discussed any committee, provided that any materials protected from discovery by the attorney-client privilege or the attorney work product privilege, any materials necessary or advisable in the presence good faith determination of such representative board of Comvest in order directors to avoid a conflict of interest with respect to a material matter between Xxxxxxxx, on the part of such non-voting observer orone hand, upon and consistent with Agent and Lenders, on the advice of legal counsel other hand, and any trade secrets may be excluded. All Confidential Information provided to Observer pursuant to this Section 6.14 shall be subject to the Loan Parties, is necessary to preserve an attorneyconfidentiality obligations under Section 13.12. Xxxxxxxx will reimburse Observer for all reasonable out-client privilege of-pocket expenses incurred by Observer in connection with respect attendance at any such meetings.
(b) In addition to any matter, then other rights or remedies to which the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue Agent may be discussed without such representative entitled, Xxxxxxxx agrees to and will indemnify and hold harmless Agent, Lenders, Observer, their Affiliates and all of Comvest presenttheir respective successors, assigns, officers, directors, employees, attorneys, and such representative agents from and against any and all losses, claims, obligations, liabilities, deficiencies, diminutions in value, penalties, causes of Comvest may be excluded from distribution action, damages, costs, and expenses (including, without limitation, costs of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body)investigation and defense, equityholders and/or committee by written consent in lieu of a meeting, the Parent reasonable attorneys’ fees and the Borrower shall giveexpenses) that they, or shall cause to be givenany of them, written notice thereof to such representative of Comvestmay suffer, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnishincur, or shall cause be responsible for, arising or resulting from the exercise of rights pursuant to be furnished, to such representative a copy of each such written consent not later than five (5Section 6.14(a) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersand/or service or status as an “Observer”.
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Board Observation Rights. Cause Comvest (provided thata) For the periods (each, in an “Observation Period”) beginning on the event that none of Comvest, its Affiliates date hereof and continuing for so long as the Investors Beneficially Own (i) any Preferred Units or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all (ii) at least 10% of the Term Loan shall have issued and outstanding Common Stock (collectively, the rights afforded “Equity Threshold Amount”), the Investor Representative, acting on behalf of the Investors, shall, subject to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to 2.2(e), have the right to designate one appoint, by written notice to the Company, two individual representatives to attend (but not record) all meetings of the Board in a non-voting observer capacity and, except as set forth herein, receive all deliverables provided to the Board relating thereto (each representative, who shall: a “Board Observer”). Notwithstanding anything herein to the contrary, an individual may not be a Board Observer if such individual is an employee or director of a Company Competitor.
(ab) receive The Company shall give each Board Observer copies of all notices, consents, minutes and other materials, financial or otherwise, which the Company provides to the Board in connection with meetings of the Board to be held during such time frame; provided, that, (i) at least three (3) days prior notice to furnishing such information to the Board Observer (no later than or if such notice is given to the members of the board of directors cannot be provided three (or other comparable body3) days in advance, as soon as practicable), the equityholders, Company shall notify the Board Observer if any material non-public information about the Company is contained therein and the committee membersBoard Observer may elect, as applicablesolely in his or her discretion, whether to receive such material non-public information; (ii) of all meetings (both regular and special) if a Board Observer does not, upon the request of the board of directors (or other comparable body) and Company, before attending any meetings of the equityholders of each Loan Party and each committee of Board or receiving any such board materials, execute and deliver to the Company a confidentiality agreement reasonably acceptable to the Company, such Board Observer may be excluded from access to any material or meeting or portion thereof if the Board determines in good faith that such exclusion is reasonably necessary to protect confidential proprietary information of directors (the Company or confidential proprietary information of third parties that the Company is required to hold in confidence, to comply with law, rule or regulation or for other comparable body)similar reasons; (biii) a Board Observer may be entitled excluded from access to attend any material or meeting or portion thereof if the Board determines in good faith that (orA) such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company or its subsidiaries and counsel, at or any privilege under any common interest or joint defense doctrine, or to comply with applicable law, rule or regulation or for other similar reasons, (B) such materials or discussion relates to items in which the option Investors, Investor Representative or their Affiliates have a conflict of interest or otherwise relate to any potential transactions between or among the Company or its Affiliates and such representativePersons, monitor or (C) such exclusion is necessary to avoid disclosure that is restricted by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, any agreement to which are furnished (the Company or made available) to the members of any such board of directors (its Affiliates is a party or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholdersotherwise bound; and (div) be entitled to participate in all discussions conducted at such meetingsnothing herein shall prevent the Board from taking any action by written consent; provided, however, that if, the Company shall provide written notice to Stonepeak and to the extent, an issue is to be discussed or otherwise arises at such Board Observer of (x) any meeting of the board of directors (or comparably body) of any Loan Party which, in Board from which such Board Observer is to be excluded at the reasonable good faith judgment same time as notice of such board meeting is given to members of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest presentBoard, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If (y) any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and Board at the Borrower shall give, or shall cause to be given, written notice thereof to such representative same time as the form of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent is given to members of the Board. For the avoidance of doubt, the Board Observer shall not later than five constitute a member of the Board, shall not be taken into account or required for purposes of establishing a quorum, and shall not be entitled to vote on, or consent to, any matters presented to the Board.
(5c) days after it has been signed Notwithstanding anything to the contrary herein, prior to disclosing any material non-public information to the Board Observer, whether in writing, in a meeting of the Board, or otherwise, to the extent reasonably practicable, the Company shall notify the Board Observer in advance that such information contains material non-public information and the Board Observer may elect, solely in his or her discretion, whether to receive such information.
(d) The Investor Representative, acting on behalf of the Investors, may remove or change either of the individuals serving as the Board Observers for any reason, with or without cause. If for any reason, either of the individuals serving as the Board Observers are removed or otherwise cease to serve as the Board Observer, the Investor Representative, acting on behalf of the Investors, may, by written notice to the Company and in accordance with Section 2.1(a), appoint a sufficient replacement Board Observer during any Observation Period. For the avoidance of doubt, the number of signatories to make it effective. At least two times per Fiscal Year, Borrower Board Observers under this Agreement at any given time shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersnever exceed two.
Appears in 1 contract
Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice So long as HealthCap IV, L.P. (no later than with its affiliates) holds at least 5,000,000 shares of Series A Preferred (as adjusted for any stock splits, dividends, combinations, splits, recapitalizations and the like with respect to such notice is given shares) and does not have a representative serving on the Board, the Company shall allow one representative designated by HealthCap IV, L.P. to the members attend all meetings of the board of directors (or other comparable body), the equityholdersBoard in a nonvoting capacity, and the committee members, as applicable) Company shall give such representative timely copies of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, informationminutes, reports consents and minutes of meetingsother materials, financial or otherwise, which are furnished (or made available) the Company provides to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetingsits Board; provided, however, that if, and the Company reserves the right to the extent, an issue is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of exclude such representative of Comvest in order from access to avoid a conflict of interest with respect to a any material matter on or meeting or portion thereof if the part of such non-voting observer or, Company believes upon and consistent with the advice of legal counsel to the Loan Parties, that such exclusion is necessary to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, or to protect highly confidential proprietary information.
(b) So long as Advanced Technology Ventures VII, L.P. (with its affiliates) holds at least 250,000 shares of Series A Preferred (as adjusted for any stock splits, dividends, combinations, splits, recapitalizations and the like with respect to such issue may be discussed without such shares) and does not have a representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meetingserving on the Board, the Parent and Company shall allow one representative designated by Advanced Technology Ventures VII, L.P. to attend all meetings of the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe Board in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operationsnonvoting capacity, and the rights Company shall give such representative timely copies of Comvest all notices, minutes, consents and each Lenderother materials, financial or otherwise, which the Company provides to its Board; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is necessary to preserve the attorney-client privilege, or to protect highly confidential proprietary information.
(c) So long as The Wellcome Trust Limited, Trustee of the Wellcome Trust holds at least 250,000 shares of Series A Preferred (as adjusted for any stock splits, dividends, combinations, splits, recapitalizations and the like with respect to such shares) and does not have a representative serving on the Board, the Company shall allow one representative designated by The Wellcome Trust Limited, Trustee of the Wellcome Trust to attend all meetings of the Board in a nonvoting capacity, and the limitations thereonCompany shall give such representative timely copies of all notices, set forth in this Section 5.13 minutes, consents and other materials, financial or otherwise, which the Company provides to the Board; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company believes upon advice of counsel that such exclusion is necessary to preserve the attorney-client privilege, or to protect highly confidential proprietary information.
(d) For so long as Xxxxxxx and Xxxxxxx Development Corporation (with its affiliates) (“JJDC”) holds at least 6,000,000 shares of Series A-1 Preferred (as adjusted for any stock splits, dividends, combinations, splits, recapitalizations and the like with respect to such shares) and does not have a representative serving on the Board, the Company shall allow one representative designated by JJDC to attend all meetings of Borrower’s board the Board in a nonvoting capacity, and the Company shall give such representative timely copies of directors shall apply mutatis mutandis all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to the Board; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof (i) which the Company reasonably believes may involve conflicts of interest on the part of the JJDC or its affiliates, including the discussion of partnering strategies or opportunities of the Company, or (ii) if the Company reasonably believes that such exclusion is necessary to preserve the attorney-client privilege, or to protect highly confidential proprietary information.
(e) For so long as GlaxoSmithKline LLC (with its affiliates) (“GSK”) holds at least 8,000,000 shares of Preferred Stock (as adjusted for any stock splits, dividends, combinations, splits, recapitalizations and the like with respect to each such shares) and does not have a representative serving on the Board, the Company shall allow one representative designated by GSK to attend all meetings of the Board in a nonvoting capacity, and the Company shall give such representative timely copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to the Board; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof (i) which the Company reasonably believes may involve conflicts of Borrower’s executive officersinterest on the part of the GSK or its affiliates, including the discussion of partnering strategies or opportunities of the Company, or (ii) if the Company reasonably believes that such exclusion is necessary to preserve the attorney-client privilege, or to protect highly confidential proprietary information.
Appears in 1 contract
Samples: Investor Rights Agreement (Five Prime Therapeutics Inc)
Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice Borrower shall permit one (no later than such notice is given 1) person representing the Lenders (the “Observer”) to attend and observe (but not vote) at meetings of Xxxxxxxx’s board of directors and committees thereof, whether in person or by telephone. Xxxxxxxx shall notify the Observer in the same manner and at the same time in advance of the date and time for each general or specific meeting of its board of directors. Borrower shall concurrently deliver to the members of Observer all notices, minutes, consents and other material that the Borrower provides to its directors (collectively, “Board Materials”). The Observer may be excluded from access to any material or meeting or portion thereof if the board of directors (or other comparable body)determines in good faith, the equityholders, and the committee members, as applicable) upon advice of all meetings (both regular and special) of the board of directors (or other comparable body) and of the equityholders of each Loan Party and each committee of any such board of directors (or other comparable body); (b) be entitled to attend (or, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as the same is furnished (or made available) to such members and equityholders; and (d) be entitled to participate in all discussions conducted at such meetings; provided, howevercounsel, that if, and to the extent, an issue such exclusion is to be discussed or otherwise arises at any meeting of the board of directors (or comparably body) of any Loan Party which, in the reasonable good faith judgment of such board of directors (or comparable body) is not appropriate to be discussed in the presence of such representative of Comvest in order to avoid a conflict of interest with respect to a material matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel to the Loan Parties, is reasonably necessary to preserve an attorney-client privilege or to protect highly confidential proprietary information.
(b) Borrower shall pay the Observer’s reasonable out-of-pocket expenses (including the cost of travel, meals and lodging) in connection with respect the attendance of such meetings.
(c) The Observer may be appointed (or removed from appointment) from time to time by written notice to Borrower from the Majority Lenders. For the avoidance of doubt, so long as no Observer is appointed, Xxxxxxxx shall not be required deliver any matterBoard Materials to the Lenders or the Administrative Agent (or any of their representatives) under this Section 8.16 and, then in any case, shall not deliver any such materials to the Lenders or the Administrative Agent (or any of their representatives) to the extent a discussion that any such materials contain material nonpublic information of such issue would cause such a conflict Borrower and/or its Subsidiaries.”
(b) Section 10.02 of interest or would result the Loan Agreement shall be amended and restated in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed entirety to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent and the Borrower shall give, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of any such board of directors (or other comparable body), equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officers.read as follows:
Appears in 1 contract
Samples: Term Loan Agreement (Avinger Inc)
Board Observation Rights. Cause Comvest (provided that, in the event that none of Comvest, its Affiliates and or Related Funds is a Lender, then the Lender with the then greatest Pro Rata Share of all of the Term Loan shall have the rights afforded to Comvest under this Section 5.13 and all references in this Section 5.13 to Comvest shall be deemed to be a reference to such Lender) to have the right to designate one representative, who shall: (a) receive prior notice For so long as Purchaser (no later than such notice is given to the members of the board of directors together with any affiliates) beneficially owns at least four percent (or other comparable body), the equityholders, and the committee members, as applicable) of all meetings (both regular and special4%) of the board total number of directors (or other comparable body) and outstanding shares of the equityholders Company's Common Stock, including in such calculation for purposes of each Loan Party determining Purchaser's beneficial ownership percentage, the Warrant Shares, or the Development Agreement is in place, and each committee in any event, for a minimum of any such board of directors three (or other comparable body); 3) years: (bA) be entitled the Company shall deliver to attend (orPurchaser, at the option of such representative, monitor by telephone) all such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of any such board of directors (or other comparable body) and/or committee and/or equityholders in their respective capacities as such at the same time and in the same manner as such information is supplied to members of the same is furnished Company's Board of Directors, (or made available1) written notice of all meetings of the Company's Board of Directors, including without limitation, telephonic meetings, and all agendas and other information distributed in connection with such meetings, (2) all written actions and consents prepared for distribution to and consideration by the Company's Board of Directors, together with all information distributed in connection with such members written actions and equityholdersconsents, and (3) minutes of all meetings of the Company's Board of Directors; and (dB) one representative designated by Purchaser (the "Representative") shall be entitled permitted to attend, in a non-voting capacity, all meetings of the Company's Board of Directors. The Company shall make reasonable efforts to permit the Representative to participate in all discussions conducted at such meetings; provided, however, that if, meetings by telephone if the Representative is unable to attend in person. The Company reserves the right not to provide information with respect to and to the extent, an issue is to be discussed or otherwise arises at exclude such Representative from any meeting of the board Company's Board of directors Directors or portion thereof if: (i) the Chairman of the Company's Board of Directors or comparably body) the Company's Chief Executive Officer reasonably determines in good faith that attendance at such meeting by such Representative or dissemination of any Loan Party whichinformation at such meeting would compromise or adversely affect the attorney-client privilege between the Company and its legal counsel; or, (ii) the Chairman of the Company's Board of Directors or the Company's Chief Executive Officer reasonably determines in the reasonable good faith judgment of such board of directors (or comparable bodythat the topic(s) is not appropriate to be discussed in at a meeting of the presence Board of such representative Directors of Comvest in order the Company will involve subject matter as to avoid which the Purchaser has or would have a conflict of interest with respect to a material that cannot otherwise be resolved or will involve subject matter on the part of such non-voting observer or, upon and consistent with the advice of legal counsel that is particularly sensitive to the Loan PartiesCompany; and, is necessary in any case (iii) the Company, if at all feasible, delivers written notice to preserve an attorney-client privilege with respect to any matter, then to the extent a discussion of such issue would cause such a conflict of interest or would result in the loss of such attorney-client privilege, such issue may be discussed without such representative of Comvest present, and such representative of Comvest may be excluded from distribution of applicable portions of related materials or related draft resolutions or consents. If any action is proposed to be taken by any such board of directors (or other comparable body), equityholders and/or committee by written consent in lieu of a meeting, the Parent Purchaser and the Borrower shall giveRepresentative immediately after such determination is made, or shall cause to be given, written notice thereof to such representative of Comvest, which notice shall describe explaining in reasonable detail the nature and substance reasons supporting such determination.
(b) The Representative's attendance at the meetings of such proposed action and the Company's Board of Directors shall be delivered not later than subject to the date upon which any member provisions of any such board of directors (or other comparable body)Section 7.5, equityholders and/or committee receives the same. The Parent and the Borrower shall furnish, or shall cause to be furnished, to such representative a copy of each such written consent not later than five (5) days after it has been signed by a sufficient number of signatories to make it effective. At least two times per Fiscal Year, Borrower shall hold a scheduled meeting of Borrower’s executive officers to review Borrower’s business and operations, and the rights of Comvest and each Lender, and the limitations thereon, set forth in this Section 5.13 with respect to meetings of Borrower’s board of directors shall apply mutatis mutandis with respect to each such meeting of Borrower’s executive officersbelow.
Appears in 1 contract
