Common use of Board Observer Right Clause in Contracts

Board Observer Right. a. For so long as X. Xxxxx and its Affiliates beneficially own at least five percent (5%) of the outstanding shares of Common Stock (based on the number of shares of Common Stock outstanding immediately following the Closing and without regard to any equity issuances (other than equity issuances under the Company’s equity plans) occurring after the Closing), but have no X. Xxxxx Nominee then serving on the Board, X. Xxxxx shall have the right, subject to the terms and conditions of this Agreement, to designate and appoint one representative (the “Observer”) to attend all meetings (including telephonic or videoconference meetings of the Board) of the Board, in a non-voting, observer capacity, which Observer shall be subject to the approval of the Board (such approval not to be unreasonably withheld); provided, however, that such Observer shall agree to hold in confidence all information so provided. Except as otherwise set forth herein, the Observer may participate fully in discussions of all matters brought to the Board for consideration and provide input and advice with respect thereto, but in no event shall the Observer (i) be deemed to be a member of the Board; (ii) without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or to vote upon any motions or resolutions duly brought before the Board. The presence of the Observer shall not be required or counted for purposes of establishing a quorum at any meeting of the Board. b. The Company shall provide to the Observer copies of all notices, minutes, consents and other materials that it provides to Board members as a whole (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the Board members, provided, however, that such Observer shall agree to hold in confidence all information or materials so provided. c. Notwithstanding anything herein to the contrary, the Company may exclude the Observer from access to any Board Materials or any Board meeting (or portion thereof) if the Board determines, acting in good faith, that (i) such exclusion is necessary to preserve the attorney-client or work product privilege between the Company (and/or its Affiliates and/or its subsidiaries) and its counsel (provided, however, that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege); (ii) such exclusion is necessary to comply with applicable laws, regulations, or any agreement to which the Company (and/or its Affiliates and/or its subsidiaries) is a party or is otherwise bound; or (iii) such Board Materials or discussion relates to the relationship, contractual or otherwise, between the Company (and/or its Affiliates and/or its subsidiaries), on one hand, and X. Xxxxx and/or the Observer, on the other hand, or their respective Affiliates (a “Conflict of Interest”). Any Observer shall be required to enter into a confidentiality agreement with the Company prior to the exercise of the rights contained in this Section 2. d. The Parties agree that neither the Company nor its Affiliates nor any member of the Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board meeting. The Parties further agree that all Confidential Information (as defined below) is provided to the Observer “AS IS” and the Company does not make, and expressly disclaims, any representation or warranty as to the accuracy or completeness thereof. Without limiting the foregoing, the Company shall have no liability to the Observer, X. Xxxxx Principal Investments or their respective Affiliates or Representatives (as defined below) resulting from any use or reliance on any Confidential Information.

Board Observer Right. a. For so long as X. Xxxxx and its Affiliates beneficially own at least five percent (5%a) of the outstanding shares of Common Stock (based on the number of shares of Common Stock outstanding immediately following the Closing and without regard to any equity issuances (other than equity issuances under the Company’s equity plans) occurring after the Closing), but have no X. Xxxxx Nominee then serving on the Board, X. Xxxxx Tontine shall have the right, subject right to the terms and conditions of this Agreement, to designate and appoint one a representative (the “Board Observer”) who is reasonably acceptable to those members of the Board who are not affiliates of Tontine (the “Unaffiliated Directors”) to attend all meetings of the Board and any committee thereof (including telephonic or videoconference meetings of meetings) as a nonvoting observer thereof (the Board) of the Board, in a non-voting, observer capacity, which “Board Observer shall be subject to the approval of the Board (such approval not to be unreasonably withheldRight”); provided, however, that if at any time Tontine shall cease to hold at least 20% of the Company’s outstanding common stock, then, contemporaneously therewith and without further action of the Board, the Board Observer Right shall terminate, this Letter Agreement will be null and void and of no effect and Tontine and the Board Observer shall cease to have any rights hereunder. (b) The Company will use commercially reasonable efforts to (i) give to the Board Observer notice of meetings of the Board and any committee thereof and all proposals to such body for action without a meeting, in each case at the same time that notice of such meetings or proposals is given to members of the Board, (ii) allow the Board Observer to attend such meetings, (iii) subject to ordinary and reasonable procedural rules, allow the Board Observer to participate in a meaningful manner in discussions of matters brought to the Board and any committee thereof, (iv) allow the Board Observer to pose questions to the Board and any committee thereof, and respond to such questions in the same manner as though they had been posed by a member of the Board, and (v) provide the Board Observer with copies of written materials distributed to the Board and any committees thereof in connection with such meetings or proposals for action without a meeting, including all minutes of previous actions and proceedings; provided, however, that such Board Observer shall agree to hold in strict confidence all information so provided. Except provided and all non-public information and proceedings of the Board as otherwise set forth hereinprovided in clause (c) below; and provided further, that (x) the Company reserves the right to withhold any information from the Board Observer may participate fully and to exclude the Board Observer from any meeting or portion thereof, as deemed reasonably necessary by the Board or the Unaffiliated Directors, including if access to such information or attendance at such meeting could present a conflict of interest or adversely affect the attorney-client privilege between the Company and its counsel or result in discussions disclosure of all matters brought trade secrets, and (y) the Board Observer shall not have any voting rights or any other decision-making authority. (c) The exercise by Tontine of the Board Observer Right is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Board Observer that is reasonably satisfactory to the Company providing for Tontine’s and the Board for consideration and provide input and advice with respect thereto, but in no event shall the Observer (i) be deemed to be a member Observer’s preservation of the Board; (ii) without limitation confidentiality of any materials provided or information received at any meeting of the obligations expressly set forth Board or any committee thereof. (d) The Board Observer shall be entitled to receive reimbursement by the Company for reasonable out-of-pocket expenses incurred in this Agreementhis or her capacity as a Board Observer. (e) Should the Unaffiliated Directors determine that any individual serving as the Board Observer is not reasonably acceptable, have they may remove such individual from serving as Board Observer, and Tontine may appoint another individual deemed reasonably acceptable by such Unaffiliated Directors to serve as Board Observer. (f) The Company hereby acknowledges that the Board Observer shall not have, or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or to vote upon any motions or resolutions duly brought before the Board. The presence of the Observer shall not be required or counted for purposes of establishing a quorum at any meeting of the Board. b. The Company shall provide to the Observer copies of all notices, minutes, consents and stockholders other materials that it provides to Board members as a whole (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes than pursuant to any such materials, at the same time and in the same manner as such information is delivered to the Board members, provided, however, that such Observer shall agree to hold in confidence all information or materials so provided. c. Notwithstanding anything herein to the contrary, the Company may exclude the Observer from access to any Board Materials or any Board meeting (or portion thereof) if the Board determines, acting in good faith, that (i) such exclusion is necessary to preserve the attorney-client or work product privilege confidentiality agreement entered into between the Company (and/or its Affiliates and/or its subsidiaries) and its counsel (provided, however, that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege); (ii) such exclusion is necessary to comply with applicable laws, regulations, or any agreement to which the Company (and/or its Affiliates and/or its subsidiaries) is a party or is otherwise bound; or (iii) such Board Materials or discussion relates to the relationship, contractual or otherwise, between the Company (and/or its Affiliates and/or its subsidiaries), on one hand, and X. Xxxxx and/or the Observer, on the other hand, or their respective Affiliates (a “Conflict of Interest”). Any Observer shall be required to enter into a confidentiality agreement with the Company prior to the exercise of the rights contained in this Section 2. d. (g) The Parties agree that neither the Company nor its Affiliates nor any member of the Board or Committee Observer shall be entitled to rely on any statements coverage under the Company’s directors’ and officers’ liability insurance policy to the same, or views expressed substantially the same, extent provided by the Observer in any Board meetingCompany to its directors. The Parties further agree Company acknowledges and agrees that all Confidential Information (as defined below) is provided the foregoing rights to insurance coverage constitute third-party rights extended to the Board Observer “AS IS” and by the Company does and do not makeconstitute rights to insurance coverage as a result of the Board Observer serving as a director, and expressly disclaimsofficer, any representation employee or warranty as to agent of the accuracy or completeness thereof. Without limiting the foregoing, the Company shall have no liability to the Observer, X. Xxxxx Principal Investments or their respective Affiliates or Representatives (as defined below) resulting from any use or reliance on any Confidential InformationCompany.

Board Observer Right. a. (a) For so long as X. Xxxxx and its Affiliates beneficially own at least five three percent (53%) of the outstanding shares of Common Stock (based on the number of shares of Common Stock outstanding immediately following the Closing and without regard to any equity issuances (other than equity issuances under the Company’s equity plans) occurring after the Closing), but have no X. Xxxxx Nominee then serving on the Board, X. Xxxxx shall have the right, but not the obligation, subject to the terms and conditions of this Agreement, to designate and appoint one representative (the “Observer”) to attend all meetings (including telephonic or videoconference meetings of the Board) of the BoardBoard (not inclusive of any committees thereof), in a non-voting, observer capacity, which Observer shall be subject to the approval of the Board (such approval not to be unreasonably withheld); provided, however, that such Observer shall agree to hold in confidence all information so provided. The Observer shall not be entitled to be present during executive sessions comprised solely of independent directors of the Board. The Observer shall be subject to the approval of the Board (with such approval not to be unreasonably withheld). Except as otherwise set forth herein, the Observer may participate fully in discussions of all matters brought to the Board for consideration and provide input and advice with respect thereto, but in no event shall the Observer (i) be deemed to be a member of the Board; (ii) without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or to vote upon any motions or resolutions duly brought before the Board. The Observer shall not be entitled to any cash retainer or equity awards from the Company during the course of his or her appointment to the Board. The presence of the Observer shall not be required or counted for purposes of establishing a quorum at any meeting of the Board. b. (b) The Company shall provide to the Observer copies of all notices, minutes, consents and other materials that it provides to all Board members as a whole (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the Board members, provided, however, that such Observer shall agree to hold in confidence all information or materials so provided. c. (c) Notwithstanding anything herein to the contrary, the Company may exclude the Observer from access to any Board Materials or any Board meeting (or portion thereof) if the Board determines, acting in good faith, that (i) such exclusion is necessary to preserve the attorney-client or work product privilege between the Company (and/or its Affiliates and/or its subsidiaries) and its counsel (provided, however, that any such exclusion shall only apply to such portion of such material or meeting which would be required to preserve such privilege); (ii) such exclusion is necessary to comply with applicable laws, regulations, or any agreement to which the Company (and/or its Affiliates and/or its subsidiaries) is a party or is otherwise bound; or (iii) such Board Materials or discussion relates to the relationship, contractual or otherwise, between the Company (and/or its Affiliates and/or its subsidiaries), on one hand, and X. Xxxxx and/or the Observer, on the other hand, or their respective Affiliates (a “Conflict of Interest”). Any Observer shall be required to enter into a confidentiality agreement with the Company prior to the exercise of the rights contained in this Section 2. d. (d) The Parties agree that neither the Company nor its Affiliates nor any member of the Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board meeting. The Parties further agree that all Confidential Information (as defined below) information is provided to the Observer “AS IS” and the Company does not make, and expressly disclaims, any representation or warranty as to the accuracy or completeness thereof. Without limiting the foregoing, the Company shall have no liability to the Observer, X. Xxxxx Principal Investments Securities or their respective Affiliates or Representatives (as defined below) representatives resulting from any use or reliance on any Confidential Informationinformation.

Board Observer Right. a. For so long as X. Xxxxx and its Affiliates beneficially own at least five percent (5%a) Concurrently with the issuance of the outstanding shares of Common Series B Preferred Stock (based on to the number of shares of Common Stock outstanding immediately following Purchasers and until such time as a Termination Event has occurred, the Closing and without regard to any equity issuances (other than equity issuances under the Company’s equity plans) occurring after the Closing), but have no X. Xxxxx Nominee then serving on the Board, X. Xxxxx BlackRock Parties shall have the right, subject to the terms and conditions of this Agreement, collective right to designate and appoint one in writing a representative (the “Observer”) to attend all meetings (including telephonic or videoconference meetings of the Board) of the Board, in a non-voting, observer capacity, which Observer shall be subject to the approval of the Board (such approval not to be unreasonably withheld); providedand any committee thereof in a nonvoting observer capacity and, however, that such Observer shall agree to hold in confidence all information so provided. Except as otherwise set forth hereinthis respect, the Observer may participate fully in discussions of all matters brought to the Board for consideration and provide input and advice with respect thereto, but in no event shall the Observer (i) be deemed to be a member of the Board; (ii) without limitation of the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or to vote upon any motions or resolutions duly brought before the Board. The presence of the Observer shall not be required or counted for purposes of establishing a quorum at any meeting of the Board. b. The Company shall provide to the Observer give such representative copies of all notices, minutes, consents consents, and other materials that it provides to Board members as a whole (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, its directors at the same time and in the same manner as provided to such information is delivered to the Board members, directors; provided, however, that such Observer representative shall agree to hold in confidence all information or materials material so provided. c. ; and provided further, that 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 or portion thereof (a) would adversely affect the attorney-client privilege between the Company and its counsel, or (b) result in disclosure to such representative of competitively sensitive information about the Company. The Company shall notify such representative in writing if the Company has withheld any such information or excluded such representative from any such meeting pursuant to the preceding sentence, provided that the Company shall not be required to identify the content or subject matter withheld or the purpose of such meeting. Notwithstanding anything herein to the contrary, such representative may disclose information or material provided to it pursuant to this Section 3(a) to the Company may exclude the Observer from access to any Board Materials or any Board meeting (or portion thereof) if the Board determines, acting in good faith, that extent reasonably necessary (i) such exclusion is necessary for Purchasers or their respective Affiliates, partners, members, direct and indirect investors, associates, employees and professional and financial advisors to preserve the attorney-client or work product privilege between evaluate its investment in the Company so long as such parties are under an obligation to maintain the confidentiality of such information no less restrictive than that set forth in Section 3(c) with respect to the Purchasers, or (and/or its Affiliates and/or its subsidiariesii) to comply with applicable Law. (b) The representative designated by the BlackRock Parties will serve in such capacity until such person is replaced by a subsequent representative designated in writing by the BlackRock Parties or until the BlackRock Parties, by notice to the Company, relinquish their collective right to designate a person to serve as an observer at meetings of the Board and its counsel committees. (c) Each Purchaser agrees (and any representative will be required to agree) that any information or materials received by the representative shall be kept confidential, used only for the purpose of evaluating such Purchaser’s investment in the Company, and shall not be disclosed to third parties (except as permitted in Section 3(a)) without the prior written consent of the Company, provided that this obligation shall not apply to information (i) which becomes generally available to the public other than as a breach of this obligation, (ii) is acquired from a third party who did not receive the information directly or indirectly from the Company and owes no obligation of confidence in respect of the information, or (iii) has been independently developed by the recipient or was known to it prior to receipt. (d) The Company shall not take any action that would lessen, restrict, prevent or otherwise have an adverse effect upon the foregoing right of the BlackRock Parties to designate a representative to serve as an observer at meetings of the Board and its committees; provided, however, that the Company shall not be prohibited from taking such action that the Board determines may be necessary to (A) comply with any such exclusion rule or regulation of the Commission or any Self-Regulatory Organization or (B) comply with applicable Law. (e) Except as any Purchaser may otherwise agree in writing, each Purchaser and its Affiliates shall only apply have the right to such portion (i) engage, directly or indirectly, in the same or similar business activities or lines of such material or meeting which would be required to preserve such privilege); business as the Company and (ii) such exclusion is necessary to comply do business with applicable lawsany client, regulationscompetitor or customer of the Company, or any agreement to which the Company (and/or its Affiliates and/or its subsidiaries) is a party or is otherwise bound; or (iii) such Board Materials or discussion relates to the relationship, contractual or otherwise, between the Company (and/or its Affiliates and/or its subsidiaries), on one hand, and X. Xxxxx and/or the Observer, on the other hand, or their respective Affiliates (a “Conflict of Interest”). Any Observer shall be required to enter into a confidentiality agreement with the Company prior to the exercise of the rights contained in this Section 2. d. The Parties agree result that neither the Company nor its Affiliates nor any member of the Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board meeting. The Parties further agree that all Confidential Information (as defined below) is provided to the Observer “AS IS” and the Company does not make, and expressly disclaims, any representation or warranty as to the accuracy or completeness thereof. Without limiting the foregoing, the Company shall have no liability right in or to the Observersuch activities or any proceeds or benefits therefrom, X. Xxxxx Principal Investments or and except as otherwise provided in this Agreement, neither any Purchaser nor any of their respective Affiliates shall be liable to the Company or Representatives its stockholders for breach of any fiduciary duty by reason of any such activities of any Purchaser or any of their respective Affiliates participation therein. If any Purchaser acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company and such Purchaser or its Affiliates, then such Purchaser and its Affiliates shall have no duty to communicate or present such corporate opportunity to the Company and the Company hereby renounces any interest or expectancy it may have in such corporate opportunity, with the result that neither such Purchaser nor any of its Affiliates shall be liable to the Company or its stockholders for breach of any fiduciary duty, including for breach of any fiduciary duty as a stockholder of the Company by reason of the fact that such Purchaser pursues or acquires such corporate opportunity for itself, directs such corporate opportunity to another Person, or does not present such corporate opportunity to the Company; provided, however, that if any Purchaser acquires knowledge of a potential transaction or matter that may be a corporate opportunity for both the Company, on the one hand, and such Purchaser or its Affiliates, on the other, as a result of information shared by the Company with members or observers of the Board, including the representative designated by the BlackRock Parties pursuant to Section 3(a), then such corporate opportunity belongs to the Company, and such Purchaser shall be liable to the Company and its stockholders for breach of any fiduciary duty, including for breach of any fiduciary duty as a stockholder of the Company by reason of the fact that such Purchaser or its Affiliates usurps such corporate opportunity for itself, or directs such corporate opportunity to another Person (as defined below) a “Corporate Opportunity Breach”). Except for losses arising out of a Corporate Opportunity Breach, the Company shall indemnify the Purchasers and their respective Affiliates against any losses resulting from any use breach of fiduciary duty or reliance on other claim brought by or through the Company or any Confidential Informationstockholder of the Company with respect to the matters contemplated by this Section 3(e).