Board Observer Right Clause Samples

Board Observer Right. The Non-Management Holders may, by a written instrument executed by the Non-Management Holders holding a majority of the Shares held by all Non-Management Holders on an As-Converted Basis (a “Non-Management Majority”), designate one individual to attend meetings of the Board and receive related materials as an observer (the “Board Observer”); provided, however, that the Board Observer shall only be allowed to observe meetings of the full Board and of the Board’s executive committee or other committee serving a similar function (and not any meetings of any other Board committee), and the Board Observer shall in no circumstances have any right to participate in any vote, consent or other action of the Board or any committee thereof; and provided, further, that the Board Observer may be excluded from any Board meeting or portion thereof and may be prohibited from receiving any related materials (i) if the Board determines in good faith that such exclusion is necessary to preserve attorney-client, work product or similar privilege, to comply with the terms and conditions of confidentiality agreements with third parties, or to comply with applicable law, or (ii) if the Board determines in good faith that there exists, with respect to the subject matter of a Board meeting or related materials, an actual or potential conflict of interest between the Board Observer or any Affiliate of the Board Observer and the Company.

Board Observer Right. Lender’s Agent shall have the right to appoint a representative on behalf of the Lenders to attend all meetings of the board of other governing body of the Company, and any committees thereof, in a nonvoting observer capacity (the “Board Observer”) and, in this respect, the Company shall give the Board Observer copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that the Board Observer shall agree to hold in confidence and trust all information so provided, and not to disclose any confidential information, except to the extent otherwise required by law and any other regulatory process to which the Board Observer is subject. Notwithstanding the foregoing, the Company reserves the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if the board or other governing body of Company determines in good faith, upon advice of counsel, (a) to preserve the attorney-client privilege between the Company and its counsel, or (b) that such exclusion is reasonably necessary to preserve trade secrets (but only to the extent necessary in order to preserve such trade secrets).

Board Observer Right. Commencing on the date of this Agreement and ending on the date on which Forbion Growth Opportunities Fund III Coöperatief U.A. (“Forbion”) together with its Affiliates (as such term is defined in Rule 13d-3 of the Exchange Act) ceases to beneficially own at any time 4.99% or more of the then issued and outstanding Common Stock, the Company shall invite a single representative of Forbion (the “Forbion Observer”), as designated by Forbion from time to time and reasonably acceptable to the Company to attend and participate in all meetings of the Board of Directors, in a nonvoting observer capacity, with such designation contingent upon such Forbion Observer (i) entering into a confidentiality agreement with the Company (to the extent not currently in place) and (ii) agreeing, solely in such individual’s capacity as the Forbion Observer, to be bound by the Company’s ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and window policies then in effect and applicable to members of the Board of Directors, and any other policy as the Board of Directors reasonably believes is necessary in order to allow for participation in meetings of the Board of Directors. In this respect, the Company shall give the Forbion Observer (i) written notice of, agendas and participation details for such meetings and (ii) copies of all notices, minutes, consents, and other materials, in each case, that it provides to the members of the Board of Directors, as applicable, at the same time and in the same manner as provided to such members; provided, however, that the Company reserves the right to withhold any information and to exclude the Forbion Observer from any meeting or portion thereof if the Company believes that such exclusion is reasonably necessary to preserve attorney-client privilege, to protect confidential proprietary information, to allow the Board of Directors to meet in executive session or for similar reasons. The Company shall notify the Forbion Observer in advance of any meeting (or portion thereof) from which the Forbion Observer is to be excluded and shall provide such materials that do not relate to attorney-client privilege or confidential proprietary information. The Company will reimburse the Forbion Observer for their reasonable and customary travel expenses for attendance at quarterly in-person meetings of the Board of Directors, consistent with its policy for reimbursement of such expenses for directors. For purposes of this section, the calculation of 4.99% beneficial ownership shall assume ...

Board Observer Right. In the event that the Company shall fail to discharge its obligation to redeem Shares pursuant to Subsection 3(a) of the Share Terms and a Conversion Trigger Event has not occurred, the holders of the Shares shall have the right to collectively designate one observer to the Board of Directors of the Company. Such observer shall be removed from the Board of Directors of the Company immediately following the discharge by the Company of its obligation to redeem Shares pursuant to Subsection 3(a) of the Share Terms or upon the occurrence of a Conversion Trigger Event. Such observer may be removed at any time by the vote of the majority of the holders of Shares.

Board Observer Right. For so long as D1 continues to hold at least twenty-five percent (25%) of the shares of Series E Preferred Stock and Series F Preferred Stock of the Company (as adjusted for stock splits, stock dividends, recapitalizations and the like) purchased by D1 pursuant to the Series E Purchase Agreement and the Series F Purchase Agreement, the Company shall invite a representative of D1 to attend all meetings of the Board and any committees thereof in a nonvoting observer capacity and, in this respect, shall give (at the same time and in the same manner that notice is given to other directors) such representative copies of all notices, minutes, consents, and other materials (financial or otherwise) that it provides to its directors. The initial observer shall be ▇▇▇▇▇ ▇▇▇▇▇▇ and such observer may be replaced by D1 from time to time. The Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting, in the reasonable opinion of counsel, could adversely affect the attorney-client privilege between the Company and its counsel. D1 agrees, and any representative of D1 will agree, to hold in confidence and trust with respect to all information provided to it or learned by it in connection with its rights under this Section 3.3, except that this shall in no way limit or restrict D1’s ability to disclose any such information to its partners, employees or affiliated funds or to any banking regulatory authority or body, or to the extent otherwise required by law and any other regulatory process to which D1 is subject.

Board Observer Right. For so long as the Obligations remain outstanding, Lender shall have the right at its option, to appoint one person to attend meetings of the board of directors of Borrower as an observer (the “Observer”). Other than the right to vote, the Observer shall have all rights of a member of the board of directors including the right to receive copies of all written materials (including copies of meeting minutes) given to members of the board of directors in connection with such meetings (and if the Borrower proposes to act by written consent, the Borrower shall provide Lender with copies of all written materials given to directors in connection with such action). The Borrower will give the Observer written notice of each meeting of the board of directors (whether annual or special) at the same time and in the same manner as written notice is given to directors in the ordinary course. The Borrower shall pay all reasonable expenses incurred by the Observer in connection therewith, including, without limitation, travel expenses.

Board Observer Right. Notwithstanding any other provision of this Agreement, the Company shall also permit one (1) additional representative of Purchaser (the “Purchaser Observer”), to attend all meetings of the Board of Directors (whether in person, telephonic or other) in a non-voting, observer capacity and shall provide to the Purchaser Observer, concurrently with the members of the Board of Directors, and in the same manner, notice of such meeting and a copy of all materials provided to such members. Notwithstanding any other provision of this Agreement, the Company may exclude the Purchaser Observer from access to any portion of any materials or meeting of the Board of Directors if the chairman of the Board of Directors determines in good faith that such exclusion is necessary to (a) preserve the attorney-client privilege with respect thereto, or (b) avoid a conflict of interest.

Board Observer Right. During the term of this Agreement, ▇▇▇▇▇▇▇▇▇▇ shall have the right to attend all meetings of the Board (in each case whether in person, by telephone or otherwise) in a non-voting observer capacity, subject to the provisions hereof. Regardless of the foregoing, the Company shall have the right to exclude ▇▇▇▇▇▇▇▇▇▇ from meetings of the Board or omit to provide ▇▇▇▇▇▇▇▇▇▇ with certain information and materials if (but only to the extent) the Company’s legal counsel or a majority of the Board determines in good faith that such exclusion or omission is necessary in order to (i) preserve attorney-client or other legal privilege, (ii) comply with its fiduciary obligations under applicable law, (iii) comply with applicable law or regulation, including to protect confidential supervisory information under any order, notice or regulation of a bank regulatory authority, (iv) comply with any obligation of confidentiality existing as of the date hereof or (v) address any conflict of interest. In the event that ▇▇▇▇▇▇▇▇▇▇ is excluded from a meeting of the Board, the Company shall inform ▇▇▇▇▇▇▇▇▇▇ of the general nature of the subject matter discussed and explain the Board’s rationale for the decision to exclude ▇▇▇▇▇▇▇▇▇▇.

Board Observer Right. If during any time after the Closing and prior to the expiration of the term or earlier termination of this Agreement there is no Kinderhook designee serving as a member of the Board in accordance with this agreement, then the Company shall invite a representative of Kinderhook to attend all meetings of its Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided however, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel; (ii) access to such information or attendance at such meeting could result in disclosure of trade secrets to Kinderhook or its representative; or (iii) Kinderhook or its representative is a direct competitor of the Company. Kinderhook agrees, and any representative of Kinderhook will agree, to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to it in connection with its observer rights under this agreement, except to the extent otherwise required by law and any other regulatory process to which Kinderhook is subject. Kinderhook Partners, L.P. March 7, 2012