Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below). (b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail). (c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded. (d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board. (e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 5 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Signature Office Reit Inc), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Board Observer Rights. (a) The As long as HBM Healthcare Investments (Cayman) Ltd. (“HBM”) qualifies as a Major Investor, then the Company agrees that it will shall invite Observer a representative of HBM to attend, in a non-voting observer capacity, attend all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meetingDirectors in a nonvoting observer capacity and, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreementrespect, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) shall give such representative copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are it provides to its directors at the same time and in the same manner as provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumdirectors; provided, however, that it such representative shall be a material breach of this Agreement by Observer agree to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoinghold in confidence all information so provided; and provided further, that the Company may reserves the right to withhold any information and to exclude Observer such representative from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such counselInvestor or its representative is a Competitor.
(b) As long as Samsara BioCapital, L.P. (“Samsara”) qualifies as a Major Investor, then the Company shall invite a representative of Samsara to attend all meetings of the Board of Directors 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 such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of the material trade secrets or such portion a conflict of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchangeinterest, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation Investor or its representative is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observera Competitor.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Mineralys Therapeutics, Inc.), Investors’ Rights Agreement (Mineralys Therapeutics, Inc.), Investors’ Rights Agreement (Mineralys Therapeutics, Inc.)
Board Observer Rights. (a) The Company agrees In addition to the rights set forth in Section 6.1(b), (i) each Member, collectively with its Affiliates and Approved Funds, that it will invite Observer owns at least 10% of the issued and outstanding Class A Units (but excluding the GUC Equity Trust) and (ii) each of the Other Members shall have the right, but not the obligation, to attenddesignate one representative (a “Board Observer”), to attend the meetings of the Board of Directors and any committees thereof in a non-voting voting, observer capacity, and such Board Observer will be provided, concurrently with the members thereof, and in the same manner, notice of such meeting and a copy of all meetings minutes, consents and other materials provided to such members; provided that if (1) the applicable Member(s) (collectively with its Affiliates and Approved Funds) in clause (i) above shall cease to own at least 10% of the issued and outstanding Class A Units or (2) any of the Other Members shall cease to own at least 50% of the Class A Units held by such Member as of the Effective Date, then (A) the applicable Member shall no longer have the right to designate a Board Observer and any and all Committees for (B) the purposes Board Observer designated by such Member will automatically be removed with no further action by such Member. The Board Observers as of permitting Observer to have current information with respect the Effective Date are as set forth in Schedule I.
(b) To the extent a Liquidity Event (as defined in the Exit Facilities Credit Agreement) has not occurred prior to the affairs first anniversary of the Company and closing under the actions taken by Exit Facilities Credit Agreement, the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Administrative Agent shall have the right to designate a Board Observer with customary Board observation rights as set forth in the Exit Facilities Credit Agreement. Such observation rights shall terminate upon the occurrence of a Liquidity Event.
(c) Each Board Observer shall be heard at required to execute an agreement reasonably acceptable to the Company (with no right to require the Company to make any such meetingdisclosure of non-public information) with respect to confidentiality and certain other requirements for Board Observers prior to attending any meetings or receiving any written materials. For the avoidance of doubt, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) Observer will have the any right to vote on any matter under consideration before the Board of Directors or any committee thereof. Any Board Observer designated by the Other Members shall be only allowed to attend meetings remotely (via a teleconference platform) and no consideration shall be given to account for such Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting scheduling meetings or any written consent in lieu other Board of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)Directors events.
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(cd) Notwithstanding the foregoing, the Company Board of Directors or any committee thereof, as applicable, may exclude Observer from access to any material or meeting or portion thereof if: (i) request that any Board Observer recuse himself or herself from portions of meetings, and (ii) withhold certain information from any Board Observer, if the Board concludes of Directors or such committee thereof believes in good faith, upon based on the advice of the Company’s counsel, that such exclusion recusal, omission or withholding of information is reasonably necessary in order to preserve the attorney-client privilege between the Company and such counsel; providedprivilege, however, that any such exclusion shall apply only or because an issue to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of discussed at a meeting is an executive session limited solely (or material to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer distributed in connection with attendance at such meeting) is not appropriate to be discussed in the presence of a Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant Observer (or to this Section 1(dbe distributed to such Board Observer) shall be paid due to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation an actual or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members potential conflict of the Boardinterest.
(e) The rights described in granted to the Other Members pursuant to this Section 1 shall terminate upon: (i) the end 6.9 will not be assignable, whether in whole or in part, in connection with a Transfer of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverUnits.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Sixth Street Partners Management Company, L.P.), Limited Liability Company Agreement (HG Vora Capital Management, LLC), Limited Liability Company Agreement (Hudson Bay Capital Management LP)
Board Observer Rights. (a) The Company agrees that it will invite Observer From the Effective Time, the Shareholder shall be entitled to attend, in a appoint one (1) non-voting observer capacity(the “Board Observer”) to the Board, exercisable by the delivery of written notice to the Company.
(b) The Board Observer shall be entitled to (i) attend (in person or telephonically) all meetings (both regular and special) of the Board and any of the committees of the Board (collectively, “Board Committees”) and to listen to all telephonic meetings of the Board and any Board Committees or meetings conducted by other methods of communication, and (ii) receive written notice of all Committees for the purposes meetings (both regular and special) of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (Board Committees at the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company same time and in the same manner delivery as such notice is made given to them) copies other members of the Board and Board Committees, and all documents, notices, minutes, consents, written materials and all other materials or information (financial or otherwise) that are provided given to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting members of the Board or any and Board Committees in connection with each Board and Board Committee meeting (collectively, “Materials”) at the same time such Materials are given to members of the Committees Board and Board Committees, whether or not the Board Observer is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend attending such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) meeting. Notwithstanding the foregoing, the Company may exclude the Board Observer from access to any material or meeting or portion thereof if: (i) if the Board concludes determines in good faith, upon written advice of the Company’s counseloutside counsel (which advice shall include legal analysis thereon in reasonable detail and shall be provided to all directors), that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(dc) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of reimburse the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by the Board Observer in connection with attendance at Board and Board Committee meetings. All compensation and reimbursements payable by .
(d) The Company acknowledges that the Board Observer may provide, on a confidential basis, any material non-public information of the Company that he or she obtains pursuant to the provisions of this Section 1(d1.2 to the Shareholder and its Affiliates and their respective representatives, advisors and consultants, provided that the Shareholder shall ensure that the Board Observer may not otherwise disclose or use any such information.
(e) The Company shall be paid indemnify and hold harmless the Board Observer from and against any losses, claims, damages, liabilities and expenses to which the Board Observer may become subject, insofar as such losses, claims, damages, liabilities or expenses (or actions in accordance respect thereof) arise out of, relate to, or are based upon Board Observer’s designation or attendance as a non-voting observer at meetings of the Board and Board Committees, the Board Observer’s receipt of materials or information under this Section 1.2, or the Board Observer’s exercise of his rights under this Agreement. The Company shall pay or reimburse the Board Observer for such losses, claims, damages, liabilities and expenses as they are incurred, including, without limitation, for amounts incurred in connection with the Company’s policies and practices with respect to director compensation and investigating or defending any such loss, claim, damage, liability, expense reimbursement then in effector action; provided, however, that with respect to any such compensation claim or reimbursement action brought against both the Board Observer and one or more directors of the Company, the Company shall not be paid to Observer no later than comparable compensation or reimbursement is paid liable to the members Board Observer on account of any settlement of such claim or action effected by the Board Observer without the written consent of the Board.
Company (ewhich consent shall not be unreasonably withheld, conditioned or delayed) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm prior to the Company in settlement of such claim or action by the Board’s sole and absolute discretion; or (iii) the death or disability of Observerrelevant directors.
Appears in 3 contracts
Samples: Director Nomination Agreement (Fosun Industrial Co., LTD), Director Nomination Agreement (New Frontier Health Corp), Director Nomination Agreement (New Frontier Health Corp)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Investor Directors shall have the right to be heard at any such meetinginvite one representative of the Investor or an Affiliate of the Investor, but in no event shall Observer: (i) be deemed to be who is a member of Xxxxx’x Executive Committee, to attend, but not vote, as an observer (the Board or such Committees; (iiInvestor Observer) have at the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors open portion of each meeting of the Company. As a non-voting observerBoard, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)including telephonic meetings.
(b) If a meeting Notwithstanding Section 2.5(a) of this Agreement, the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Investor Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer excluded from access to any material or meeting meetings of the Board or portion thereof if: (i) any Investor Director has excluded himself or herself due to a conflict of interest; or (ii) a majority of the Board concludes Non-Investor Directors determines, in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary so as not to preserve have a material adverse effect on the attorney-attorney client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only to such portion . The decision of the material Non-Investor Directors with respect to the privileged or confidential nature of such portion of the meeting which would information shall be required to preserve such privilege final and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedbinding.
(dc) The Company shall compensate Investor hereby agrees that it will not, and will instruct any Investor Observer in to not, use (other than for purposes of managing its investment in, or commercial relationship with, the same amount of all cash retainersCompany) or disclose any Confidential Information to any third party (other than the Investor’s Affiliates and the officers, meeting fees directors and any other cash fees as if Observer were an independent director member employees of the Board Investor and a member of such Affiliates, who shall each of the committees thereof, as such cash compensation may be modified from time subject to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid confidentiality obligations to the members of the Board.
(e) The rights described in this Section 1 shall terminate uponInvestor), other than Confidential Information that: (i) subsequent to its disclosure, becomes publicly available to the end Investor, the Investor’s Affiliates or any Investor Observer without any violation of this Agreement by the Observer PeriodInvestor, as described in the Merger AgreementInvestor’s Affiliates or any Investor Observer; (ii) becomes legally available to the Investor, the Investor’s Affiliates or any material violation Investor Observer on a non-confidential basis from any third party, the disclosure of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, does not violate any contractual or (B) if legal obligation such violation is not subject to cure, directly causes harm third party has to the Company with respect to such information; (iii) is independently acquired or developed by the Investor, the Investor’s Affiliates or any Investor Observer; (iv) is required to be disclosed by the Investor, the Investor’s Affiliates or any Investor Observer pursuant to law or by order of court of competent jurisdiction, pursuant to the requirements of a stock exchange, bank regulatory or other governmental or regulatory authority or to obtain tax or other clearances or consent of any relevant authority, provided that in the Board’s sole and absolute discretionevent of a court ordered disclosure or required disclosure by a stock exchange, the Investor will use its reasonable efforts to notify the Company within 15 days prior to such disclosure; or (iiiv) information that is explicitly approved for release by prior written authorization of the death Company. The Investor shall be responsible for any breach of this Section 2.5(c) by any of the Investor’s Affiliates or disability any of Observerthe officers, directors or employees of the Investor or such Affiliates.
Appears in 3 contracts
Samples: Affiliation Agreement (Tercica Inc), Affiliation Agreement (Tercica Inc), Affiliation Agreement (Ipsen, S.A.)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings From the Effective Date until the earlier of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice date of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company 2020 Annual Meeting of Shareholders and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which Xxxxxxx (Athe “Observation Period”), Xxxxxxx shall be permitted to act as a non-voting observer of the Company’s Board of Directors. The terms of such Board observation shall be as follows:
(a) remains uncured within ten business days after receipt Xxxxxxx may attend meetings of notice thereofthe Board as a non-voting observer. Xxxxxxx shall have no voting, policy or (B) if such violation is not subject decision-making authority. Xxxxxxx shall be entitled to curereceive, directly causes harm concurrently with its delivery to the Company members of the Board, notices of Board meetings during the 3
(b) Notwithstanding clause (a) above, (i) Xxxxxxx may be excused from any Board meeting or portion thereof (including any executive session limited to independent directors, the Company’s Chief Executive Officer, the Company’s independent auditors, and/or the Company’s legal counsel) in the Board’s or the Board Chairman’s discretion, and (ii) the Company shall not deliver materials or portions of materials with respect to any meeting of the Board to Xxxxxxx, and the Company may ask Xxxxxxx to recuse himself from any such meeting, if the Company determines, in its sole and absolute discretion; : (1) that Xxxxxxx’x access to such information presents a potential conflict of interest with Xxxxxxx or his Affiliates, including any conflict resulting from the Board’s consideration of issues relating to this Agreement, any other contractual arrangement with Xxxxxxx or his Affiliates or any transaction in which Xxxxxxx or his Affiliates may have any interest other than as a shareholder of the Company, (2) that Xxxxxxx’x access to such information could jeopardize an attorney-client privilege, which determination is made after the Company’s consultation with its outside counsel, (3) that withholding Xxxxxxx’x access to such information is necessary or appropriate in furtherance of discharging the Board’s fiduciary duties to the Company’s shareholders, or (iii4) that such information relates to an executive session limited to independent directors, the death Company’s Chief Executive Officer, the Company’s independent auditors, and/or the Company’s legal counsel. If the Board requests that Xxxxxxx recuse himself from any meeting of the Board, or disability portion thereof, in accordance with the foregoing, Xxxxxxx shall not be entitled to be present at or participate in such meeting or portion thereof or receive any materials or portions of Observermaterials with respect thereto. Xxxxxxx shall not be entitled to receive copies of any Board consent or other documentation if the Board Chairman determines, in his sole discretion, that (w) providing such information presents a potential conflict of interest with Xxxxxxx or his Affiliates, including any conflict resulting from the Board’s consideration of issues relating to this Agreement, any other contractual arrangement with Xxxxxxx or his Affiliates or any transaction in which Xxxxxxx or his Affiliates may have any interest other than as a shareholder of the Company, (x) providing such information could jeopardize an attorney-client privilege, which determination is made after the Company’s consultation with its outside counsel, (y) withholding such information is necessary or appropriate in furtherance of discharging the Board’s fiduciary duties to the Company’s shareholders, or (z) such information relates to a portion of a meeting which is an executive session limited to independent directors, the Company’s Chief Executive Officer, the Company’s independent auditors, and/or the Company’s legal counsel.
(c) During the Observation Period, Xxxxxxx may have access to material, non-public information about the Company. Xxxxxxx agrees he will not take any action relating to the securities of the Company which would constitute xxxxxxx xxxxxxx, market manipulation, or any other violation of applicable securities law. Xxxxxxx further agrees to instruct all of his Representatives to whom he discloses Confidential Information that they may not take any action relating to the securities of the Company which would constitute xxxxxxx xxxxxxx, market manipulation, or any other violation of applicable securities law. 4
(d) Xxxxxxx shall not receive any compensation for services rendered pursuant to this Section 4. 5.
Appears in 2 contracts
Samples: Board Composition Agreement (Bankwell Financial Group, Inc.), Board Composition Agreement (Bankwell Financial Group, Inc.)
Board Observer Rights. (a) The Effective immediately following the Closing and for so long as the Purchaser and its Affiliates collectively Beneficially Own 50% or more of the aggregate principal amount of the Note Beneficially Owned by the Purchaser immediately following the Closing (provided that, to the extent any portion of such Note has been converted into Company agrees that it will invite Observer Common Stock, Purchaser and its Affiliates shall be deemed to attendcontinue to own such portion of the Note for purposes of calculating the principal amount of the Note pursuant to this sentence for so long as they hold the shares of Company Common Stock issued upon such conversion) (such condition, in the “Ownership Condition”), the Purchaser shall have the right to designate a non-voting observer capacityto the Board of Directors (the “Purchaser Observer”), which such person must be an employee of the Purchaser or its Affiliates. The Purchaser Observer shall be entitled to receive notice of and have the right to attend any and all meetings of the Board of Directors and any committee thereof, and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and shall provide the actions taken by the Board and Purchaser Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, consents and all other material in connection therewith at the same time as such materials or information (financial or otherwise) that are provided distributed to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting members of the Board of Directors or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumapplicable committee thereof; provided, however, provided that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Purchaser shall cause the Purchaser Observer to comply with Section 4.08 and (ii) the Company and the Board concludes of Directors shall have the right to withhold any information and to exclude the Purchaser Observer from any meeting or portion thereof, in good faitheach case, upon advice solely to the extent that (A) such information or meeting relates to the Transactions, any agreement between any member of the Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) doing so is, in the opinion of outside counsel to the Company’s counsel, that such exclusion is reasonably advisable or necessary to preserve protect the attorney-client privilege between the Company and such counsel; provided, however, that its counsel or to prevent violation of applicable law. The Purchaser Observer shall have no right to vote on any such exclusion shall apply only matters presented to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designateof Directors or any committee thereof or be entitled to receive any compensation in his or her capacity as a Purchaser Observer, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, provided that the Company shall reimburse the Purchaser Observer for all its reasonable and documented out-of-pocket expenses incurred by Observer in connection with travel to or from and attendance at each meeting of the Board and Committee meetingsof Directors (or any committee thereof) consistent with reimbursement policies of the Company applicable to non-executive directors of the Board of Directors. All compensation and reimbursements payable by obligations of the Company pursuant to this Section 1(d4.06(a) shall terminate, and, upon request by the Board of Directors, the Purchaser shall cause the Purchaser Observer to resign promptly from the Board of Directors, in each case upon the Purchaser ceasing to have the right to designate the Purchaser Observer pursuant to this Section 4.06(a).
(b) The Purchaser Observer may be paid removed or replaced at any time by the Purchaser for any or no reason, provided that the Purchaser shall provide written notice promptly to the Company and any replacement observer must be an employee of the Purchaser or its Affiliates.
(c) Subject to the terms of Section 4.08, for so long as the Purchaser shall have the right to designate a Purchaser Observer in accordance pursuant to Section 4.06(a), the Company shall provide to the Purchaser access to (i) any materials or documents provided by the Company to the Board of Directors or any committee of the Board of Directors substantially concurrently with the time such materials or documents are provided to the Board of Directors or such committee and (ii) access to the officers of the Company to discuss the Company’s policies affairs, finances, and practices with respect accounts, during normal business hours, as may be reasonably requested by Purchaser; provided that the Company shall not be obligated to director compensation and expense reimbursement then in effect; providedprovide materials, however, that any such compensation documents or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid information solely to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which extent that (A) remains uncured within ten business days after receipt such materials, documentation or information relate to the Transactions, any agreement between any member of notice thereofthe Company Group and any member of the Purchaser Group, the Commercial Agreement and the related relationship, or any dispute between any member of the Company Group and any member of the Purchaser Group, or (B) if such violation is not subject to cure, directly causes harm in the opinion of outside counsel to the Company, would reasonably be likely to jeopardize the attorney-client privilege between the Company in the Board’s sole and absolute discretion; counsel or (iii) the death or disability of Observerviolate applicable law.
Appears in 2 contracts
Samples: Investment Agreement (Inspirato Inc), Investment Agreement (Inspirato Inc)
Board Observer Rights. (a) The Company agrees that it will invite Observer Subject to Section 4.1(d), GICRE shall have the right to designate one representative (the “Board Observer”) to attend, in as a non-voting observer capacityobserver, all meetings each meeting of the Board and any and all Committees for the purposes committees thereof (each, a “Committee”), whether such meeting is conducted in person or by teleconference or videoconference. The appointment of permitting a Board Observer pursuant to have current information with respect this Section 4.1(a) shall be effective upon written notice from GICRE to the affairs Company of the Company name and contact information of the actions taken by individual so appointed. If the individual appointed to act as Board Observer is no longer able or willing to act as Board Observer, or is not able or willing to attend one or more meetings of the Board and Observer or any Committee, GICRE may appoint another individual to provide input and advice with respect thereto act as Board Observer.
(the “Approved Purposes”). b) A Board Observer shall have the right to be heard present matters for consideration by the Board and to speak on matters presented by others at any such meeting, but in no event shall Observer: (i) be deemed to be a member meetings of the Board. A Board or such Committees; (ii) Observer shall not have the right to vote on any matter under consideration by presented to the Board or such Committees or otherwise have any power Committee. Subject to the confidentiality provisions of Section 4.1(e), the Company shall cause the Company Board Observer to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consentspresentations, reports, and all other materials that the Company provides to members of the Board or information (financial or otherwise) that any Committee when such documents and materials are provided to members of the directors with respect to a meeting Board or any written Committee, including every form of action by unanimous consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any Committee, together with the exhibits and annexes to any such consent. The Board Observer shall be entitled to the same notice as is provided for regular or special meetings of the Committees is conducted via telephone Board or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without Committee under the Company’s express prior written consent (which consent charter and bylaws. The Board Observer shall be entitled to meet and consult with the senior executive management team of the Company on a quarterly basis to discuss the quarterly and annual business plans of the Company and the Company’s subsidiaries and to review the progress of the Company and the Company’s subsidiaries in achieving their plans. In addition, upon request to the chief executive officer of the Company, the members of the senior executive management team of the Company shall make themselves available during normal business hours to meet with the Board Observer on an interim basis, as the Board Observer may be by e-mail)reasonably request from time to time, and as would not unreasonably interfere with the duties of the members of the senior executive management team of the Company.
(c) Notwithstanding the foregoing, the Company may exclude the Board Observer from access to accessing any material or meeting attending any meeting, or any portion thereof thereof, if: (i) the Board concludes in good faith, upon the advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; (ii) such portion of a meeting is established for the purpose of negotiating a transaction with GICRE; or (iiiii) such portion of a meeting is an executive session limited solely to independent director members of the Boarddirectors, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming if the Board Observer were was a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) GICRE’s right to designate a Board Observer, or to appoint a replacement thereto, shall only apply if GICRE and its Affiliates collectively Own at least the Minimum Ownership Amount. If GICRE and its Affiliates collectively cease to Own the Minimum Ownership Amount, then GICRE’s right to designate a Board Observer, and the rights of any such Board Observer, under this Agreement shall terminate.
(e) The Board Observer shall hold in confidence and trust and not use or disclose any confidential information provided to or learned by him or her in connection with the Board Observer’s rights hereunder for any purpose other than the observation and participation rights contemplated hereby, unless otherwise required by law; provided, however, that the Board Observer may share any such information with GICRE and its direct and indirect investors. GICRE shall cause the Board Observer to enter into such further agreements or undertakings with the Company to maintain the confidentiality of information so provided as the Company may reasonably request.
(f) The Board Observer shall be entitled to the same rights to indemnification and advancement of expenses as the directors of the Company.
(g) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of reimburse the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by the Board Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d4.1(g) shall be paid to the Board Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to the Board Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Post Ipo Stockholder’s Agreement (Istar Inc.), Post Ipo Stockholder’s Agreement (Safety, Income & Growth, Inc.)
Board Observer Rights. For so long as the Pfizer Post-Closing Shareholder holds at least twenty percent (a20%) The of the Equivalent Shares held by it as of the Closing, the Pfizer Post-Closing Shareholder shall have the right to designate one (1) natural person reasonably acceptable to the Company agrees that it will invite Observer to attendattend each regularly scheduled, in special and other meeting (including telephonic meetings) of the Board and any committees thereof as a non-voting observer (in such capacity, all meetings of a “Non-Voting Observer”); provided, that the Board and any and all Committees for Non-Voting Observer shall enter into a customary confidentiality agreement with the purposes of permitting Observer to have current information with respect Company on terms reasonably acceptable to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Company, which shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) less favorable to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise than the confidentiality provisions applicable to the directors Pfizer Post-Closing Shareholder under Section 4.7. Notice of the Company. As a non-voting observer, Observer will also time and place of each such meeting shall be provided (concurrently with delivery given to the directors of the Company and Non-Voting Observer in the same manner delivery and at the same time as notice is made given to them) the Directors. The Non-Voting Observer shall be given copies of all notices, reports, minutes, consents, consents and all other documents and materials or information (financial or otherwise) that at the time and in the manner as are provided to the directors with respect to a meeting Board or any written consent in lieu of meeting (except the applicable committee thereof. Notwithstanding the foregoing, the Non-Voting Observer may be excluded from access to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a portion of any meeting of the Board or any committee thereof or the portion of material relating thereto if the Board or such committee reasonably determines in good faith that such access would be reasonably likely to (a) prevent the members of the Committees is conducted via telephone Board or other electronic medium such committee from engaging in attorney-client privileged communication with counsel, or (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be b) result in a material breach conflict of this Agreement by Observer to provide any other person access to such meeting without interest with the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingCompany or one or more of its subsidiaries, so long as, in each case, the Company may exclude promptly notifies the Non-Voting Observer from access to any material or meeting or portion thereof if: (i) of such determination and provides the Board concludes in good faith, upon advice Non-Voting Observer a general description of the Company’s counsel, information or materials that have been withheld to the extent that providing such exclusion is reasonably necessary to preserve description does not jeopardize the attorney-client privilege between to be preserved or result in the material conflict to be avoided (it being understood and agreed that the Company will take, and such counsel; providedwill cause its subsidiaries to take, however, that reasonable steps to minimize any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedexclusions).
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Registration and Shareholder Rights Agreement (Cerevel Therapeutics Holdings, Inc.), Business Combination Agreement (ARYA Sciences Acquisition Corp II)
Board Observer Rights. (a) The Company agrees that it will invite In accordance with the resolutions of the Board, dated July 20, 2021, OMERS Asia may appoint its representative as Board Observer to attend, in a non-voting observer capacity, attend all meetings of the Board and any committee of the Board (including telephonic or videoconference meetings of the Board) in a non-voting, observer capacity; provided that any such representative shall have executed and all Committees for the purposes of permitting Observer to have current information with respect delivered to the affairs Company a copy of the Company Acknowledgement and Letter Agreement to be Bound in the actions taken by form attached hereto as Exhibit A (the "Acknowledgement").
(b) The Board Observer may participate in discussions of matters brought to the Board and Observer to provide input and advice with respect thereto (or any committees of the “Approved Purposes”Board). Observer shall have , as the right to be heard at any such meetingcase may be, for consideration, but in no event shall Observer: will the Board Observer (i) be deemed to be a member of the Board (or such Committeesany committees of the Board); (ii) have except for (and without limitation of) the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as obligations expressly set forth in this AgreementLetter Agreement and the Acknowledgement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders shareholders; or (iii) have the right to propose or offer any duties (fiduciary motions or otherwise) otherwise applicable resolutions to the directors Board or to vote on any motions or resolutions of the CompanyBoard. As a non-voting observer, The presence of the Board Observer will also not be provided considered for purposes of establishing a quorum in respect of any meeting of the Board. The Board Observer will not be entitled to any compensation from the Company for its role as observer.
(concurrently with delivery c) The Company will provide to the directors of the Company and in the same manner delivery is made to them) Board Observer copies of all materials that it provides to Board members or committee members ("Board Materials"), including all notices, minutes, consents, and all other materials or exhibits and annexes to any such materials, at the same time and in the same manner as such information (financial or otherwise) that are provided is delivered to the directors with respect to a meeting Board members or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)committee members.
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(cd) Notwithstanding anything herein to the foregoingcontrary, the Company may exclude the Board Observer from access to any material or Board Materials, meeting or portion thereof if: (i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s counsel, that (i) such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its affiliate and such counsel; its counsel (provided, however, that any such exclusion shall will only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or (ii) such portion of a meeting is an executive session limited solely Board Materials or discussion relates to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in 's or its affiliates' relationship, contractual or otherwise, with the same amount of all cash retainers, meeting fees and OMERS Asia or its affiliates or any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, actual or potential transactions between or involving the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board or its affiliates and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation OMERS Asia or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretionits affiliates; or (iii) such exclusion is necessary to avoid a conflict of interest or disclosure that is restricted by any agreement, law or rule to which the death Company or disability any of Observerits affiliates is a party or otherwise bound or subject.
Appears in 2 contracts
Samples: Non Disclosure Agreement (OMERS ADMINISTRATION Corp), Non Disclosure Agreement (OMERS ADMINISTRATION Corp)
Board Observer Rights. (a) Upon the Technology Access Fee Closing, Intrexon will be entitled to maintain one person who is an employee, officer, or director of Intrexon who is appointed by Company as an observer to the board of directors of the Company (the “Observer”). If Intrexon does not already have an Observer on the board of directors of Company at or prior to the Technology Access Fee Closing, the Company shall cause the President of Intrexon’s Human Therapeutics Division to be appointed as Observer. Intrexon may, upon written notice to Company, change the identity of the Observer, and the right of Intrexon to maintain one Observer on the board of directors of the Company shall continue until the Channel Agreement is terminated. The Company agrees that it will invite Observer shall be entitled to attend, in a non-voting observer capacity, attend all meetings of the Board Company’s board of directors and any and all Committees for the purposes of permitting Observer to have current information committees thereof as an observer (with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right power to vote on any matter under consideration by before the Board or such Committees or otherwise have any power board of directors) and shall be entitled to cause the Company receive copies of all materials and receive all briefings provided to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors members of the Company. As ’s board of directors; provided that the Observer enters into a non-voting observer, Observer will also be provided (concurrently confidentiality agreement with delivery the Company in a form reasonably satisfactory to the directors of Company; and provided, further, that the Company and in reserves the same manner delivery is made right to them(i) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to exclude the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material board of directors’ materials or meeting meetings or portion thereof if: (i) if the Board concludes in good faith, upon advice of the Company’s counsel, Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect highly confidential information or for other similar reasons, or if the Company and such counsel; providedbelieves in good faith that the Observer has a conflict of interest, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members at the discretion of the Boardapplicable committee, independent auditors and/or legal counsel, as exclude the Board may designate, and Observer from access to any meeting materials or meetings (assuming Observer were a member or portion thereof) of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which nominating committee of the Company’s securities are then traded.
(d) The Company shall compensate Observer in board of directors, compensation committee of the same amount Company’s board of all cash retainersdirectors, meeting fees audit committee of the Company’s board of directors and any other cash fees as if Observer were an independent director member committee of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation board of directors performing similar functions or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to which the members listing rules of the BoardNYSE Amex require to have such discretion.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Stock Issuance Agreement, Stock Issuance Agreement (Synthetic Biologics, Inc.)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock ExchangeNASDAQ, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: upon (a) the earlier of (i) two years or (ii) the end effective Date of the Observer Period, as described in Director Nomination Agreement between the Merger Agreement; Noteholders and the Company or (iia) any material violation of the terms of this Agreement by Observer which (Ax) remains uncured within ten business days after receipt of notice thereof, or (By) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Director Nomination Agreement (Applied Minerals, Inc.), Director Nomination Agreement (Applied Minerals, Inc.)
Board Observer Rights. (a) The Company agrees that it will invite Observer For so long as CPPIB is a Major Investor, CPPIB has the right to attend, in a designate one non-voting board observer capacity, who will be entitled to attend all meetings of the Board of Directors of the Company (and, in connection therewith, receive notices of such meetings according to the same terms on which notices of such meetings are required to be provided to the members of the Board of Directors pursuant to the Company’s Bylaws), participate in all deliberations of the Board of Directors and any and receive copies of all Committees for materials provided to the purposes Board of permitting Observer to Directors, provided, however, that such observer shall have current information no voting rights with respect to the affairs of the Company and the actions taken or elected not to be taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer of Directors; provided, further, that CPPIB shall have the right to be heard designate an alternate to take the place of such non-voting board observer at any meeting of the Board of Directors depending on availability of the CPPIB appointee. Such non-voting board observer and any alternate shall execute a confidentiality agreement substantially in the form requested by the Company containing terms of confidentiality no more restrictive than those contained in Section 3.4 hereof prior to receiving any information, and such meetingboard observer and any alternate shall not be entitled to receive any notices, but documents, materials or other information, or be in no event shall Observerattendance for any meeting (or any portion thereof) of the Board of Directors if access to such notices, documents, materials or other information or attendance at such meeting (or portion thereof) could: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-adversely affect attorney client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion present an actual conflict of a meeting is an executive session limited solely to independent director members interest between CPPIB or any of the Board, independent auditors and/or legal counsel, as the Board may designate, its affiliates and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that or any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; its affiliates or (iii) otherwise, upon advice of outside counsel, violate the death fiduciary or disability other duties of Observerthe Board of Directors.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Lulu's Fashion Lounge Holdings, Inc.), Investors’ Rights Agreement (Lulu's Fashion Lounge Holdings, Inc.)
Board Observer Rights. So long as the principal balance of the Note is unpaid, or Investor or any of its Affiliates are the beneficial owners (aas defined under Rule 13d-3 promulgated under the 0000 Xxx) The of at least 5% of the Common Stock (as determined pursuant to such Rule 13d-3), the Company agrees that it will invite Observer shall give Investor written notice of each meeting of the Company’s Board of Directors and each committee thereof at least at the same time and in the same manner as notice is given to attendthe directors, in and the Company shall permit a non-voting representative of Investor to attend as an observer capacity, all meetings of the Company’s Board and any of Directors and all Committees for committees thereof; provided that in the purposes case of permitting Observer telephonic meetings conducted in accordance with the Company’s bylaws and applicable law, the Investor representative shall be given the opportunity to have current information with respect listen to the affairs of such telephonic meetings; and provided, further, that the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at exclude the Investor representative from any such meetingportion of a meeting if, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors good faith judgment of the Company’s counsel, the inclusion of the Investor representative therein would result in the waiver of any applicable privilege. As a non-voting observer, Observer will also The Investor representative shall be provided entitled to receive all written materials and other information (concurrently including without limitation copies of meeting minutes) given to directors in connection with delivery such meetings at the same time such materials and information are given to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumdirectors; provided, however, that it the Company shall be a material breach of this Agreement by Observer have the right to provide any other person access information to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding Investor representative if, in the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice faith judgment of the Company’s counsel, that the provision of such exclusion is reasonably necessary information to preserve the attorney-client privilege between Investor representative would result in the waiver of any applicable privilege. If the Company and such counsel; provided, however, that proposes to take any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion action by written consent in lieu of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the its Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, Directors or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees committee thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all give written notice thereof to the Investor representative and each of the Company’s directors prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company shall pay the reasonable out-of-pocket expenses of the Investor representative incurred by Observer in connection with attendance at Board attending such board and Committee committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) This covenant shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, a reconfirmation of that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described similar right granted in the Merger Agreement; (ii) any material violation of Prior Agreement and shall not be construed to grant the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole Investor and absolute discretion; or (iii) the death or disability of Observerits Affiliates an additional observer right.
Appears in 2 contracts
Samples: Securities Purchase Agreement (National Holdings Corp), Securities Purchase Agreement (National Holdings Corp)
Board Observer Rights. Upon the occurrence of an Event of Default and at all times thereafter until the Obligations (aother than the Warrant Obligations and contingent indemnification obligations for which no claim has been made) The Company agrees that it will invite Observer have been paid in full in cash, Borrower and its Subsidiaries shall permit one individual selected by the Lenders to attend, in a non-voting observer capacity, represent all of the Lenders (the “Observer”) to attend and observe (but not vote) at all meetings of Borrower’s (or any Subsidiary’s, as applicable) board of directors or similar governing body (the “Board”) or any committee thereof (each a “Committee”), whether in person, by telephone or otherwise as requested by the Observer. Borrower and such Subsidiaries shall notify the Observer in writing at the same time as furnished to members of the applicable Board or Committee of (i) the date and time for each general or special meeting of any such Board or Committee and (ii) the adoption of any resolutions or actions by any such Board or any such Committee by written consent (describing, in reasonable detail, the nature and substance of such action). Borrower and each of its Subsidiaries shall concurrently deliver to the Observer all notices and any materials delivered to the official members of such Board or Committee in connection with a meeting or action to be taken by written consent, including a draft of any material resolutions or actions proposed to be adopted by written consent. The Observer shall be free prior to such meeting or adoption by written consent to contact members of any applicable Board or Committee and all Committees discuss the pending actions to be taken. Notwithstanding the foregoing, the Observer shall not be entitled to receive materials relating to, or be in attendance for any discussions relating to topics which (x) are subject to attorney client privilege, or (y) present a conflict of interest for the purposes of permitting Observer to have current information with Observer. With respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard Observer’s attendance at any such board meeting, but or obtaining any materials of such meetings, the Observer shall execute a confidentiality agreement, in no event shall Observer: (i) be deemed form and substance reasonably satisfactory to Borrower, and agree to be bound by the same duties of confidentiality as if the Observer were a member of the Board or such Committees; (ii) have Committee of Borrower or the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)Guarantor.
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Credit Agreement (Zymeworks Inc.), Credit Agreement (Zymeworks Inc.)
Board Observer Rights. Subject to the specific terms and conditions set forth in this Section 3.1, VCO shall be entitled to designate one observer (the “VCO Representative”) to the Board of Directors of the Company, which VCO Representative shall be reasonably acceptable to the Board of Directors and the Chief Executive Officer of the Company.
(a) The Company agrees that it will invite Observer Subject to attendSections 3.1(c)-(d), below, the VCO Representative shall be entitled to attend and participate, and shall be invited to attend and participate, at VCO’s sole expense, in all meetings of the Board of Directors (whether such meetings are in person, by telephone, or otherwise) in a non-voting observer capacity.
(b) Subject to Sections 3.1(c)-(d), all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of below, the Company and shall provide the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) VCO Representative copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that it provides to the Board of Directors at the same time and in the same manner as such materials are provided to the directors with respect to a meeting or any written consent in lieu Board of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail)Directors.
(c) Notwithstanding VCO and the foregoingVCO Representative shall maintain as confidential all financial, confidential and proprietary information of the Company obtained by them as a result of the rights set forth in Sections 3.1(a)-(b), above (“Confidential Information”), and shall not disclose the same to any third party without the prior express written consent of the Company. Further, VCO and the VCO Representative represent and agree that Confidential Information shall not be made available to any Affiliate of VCO or any Person who is a competitor or customer of, or vendor to, the Company, or any Affiliate or associate of such Person, without the prior express written consent of the Company.
(d) VCO acknowledges that the VCO Representative is a non-voting observer and as such, the Company may reserves the right to withhold all or part of any information or exclude Observer from access to any material or meeting or portion thereof if: (i) if the Board concludes in good faith, upon advice of the Company’s counsel, Company reasonably believes that such withholding or exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; providedprivilege, however, that any such exclusion shall apply only to such portion avoid conflicts of the material interest or such portion of the meeting which would be required to preserve such privilege and not to any for other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardsimilar reasons.
(e) The rights described in granted pursuant to this Section 1 3.1 shall terminate uponbe effective until the earlier to occur of: (i) the end such time as VCO holds less than one and one-half percent (1½%) of the Observer Period, as described in the Merger AgreementCommon Stock then outstanding; (ii) any material violation a VCO Designee (as defined below) is appointed to the Board of Directors of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereofCompany pursuant to Section 3.2, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretionbelow; or (iii) the death consummation of an Initial Public Offering; (iv) the sale, transfer, or disability other disposal of Observerall or substantially all of the Company’s assets; or (v) the Company’s merger with or into or consolidation with any other entity (other than a wholly-owned subsidiary of the Company) or the consummation of any other transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Company is disposed of and the Company is not the survivor.
(f) VCO may not assign the rights set forth in this Section 3.1 without the prior written consent of the Company.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Arcadia Biosciences, Inc.), Investors’ Rights Agreement (Arcadia Biosciences, Inc.)
Board Observer Rights. (a) The After the Closing, for so long as Investor, together with its Affiliates, continues to beneficially own (i) Common Stock (assuming full exercise of all of the Warrants) representing at least twenty-five percent (25%) of the Common Stock issued to Investor at the Closing (assuming full exercise of all of the Warrants and subject to equitable adjustment to reflect stock splits, stock combinations, stock dividends, recapitalizations and similar transactions) or (ii) at least $50,000,000 in principal amount of Loans, the Company agrees that it will invite Observer shall permit Investor to attenddesignate one (1) representative as determined by Investor in its sole discretion, who has executed and delivered to the Company a confidentiality agreement in form and substance reasonably satisfactory to the Company (the “Confidentiality Agreement”), to attend as a non-voting observer capacity, all meetings of the Company Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto committees thereof (the “Approved PurposesBoard Observer”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting Subject to the Board Observer executing and delivering to the Company the Confidentiality Agreement (and subject to the last sentence of this Section 4.11(b)), after the Closing, the Company agrees that the Board Observer shall be entitled to receive all notices, documents, materials and other information given to members of the Company Board or any committee thereof, as and when given to any such members, and shall be reimbursed by the Company for all of his or her reasonable costs and expenses (including reasonable travel expenses) incurred in connection with attending meetings of the Committees is conducted via telephone Company Board and any committee thereof, in each case to the same extent and in the same time and manner and subject to policies no more restrictive than those applicable to, any such members. Notwithstanding the foregoing or anything contained herein to the contrary, the Company shall not be required to provide or otherwise disclose any notices, documents, materials or other electronic medium (e.g.information to the Board Observer, videoconference), Observer may attend such meeting via or permit the same medium; provided, however, that it shall be a material breach of this Agreement by Board Observer to provide attend any other person access to meetings of the Company Board and/or any committees thereof, where the Company reasonably determines that such meeting without disclosure or attendance would jeopardize the Company’s express prior written consent (which consent may be by eattorney-mail)client privilege of the Company or any of its Subsidiaries or conflict with or violate any Law or order.
(c) Notwithstanding the foregoingInvestor may, by written notice to the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, suspend and un-suspend the right of the Board Observer to attend any or all meetings of the Company Board and/or any committees thereof and to receive any such notices, documents, materials or other information as provided herein, and during the pendency of any such suspensions, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with not permit the attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Board Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that at any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid meetings nor make available to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Board Observer Periodany such notices, as described in the Merger Agreement; (ii) documents, materials or other information nor otherwise provide Investor or its Affiliates with any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to nonpublic information regarding the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observerits Subsidiaries.
Appears in 2 contracts
Samples: Investment Agreement (Oaktree Capital Management Lp), Investment Agreement (General Maritime Corp / MI)
Board Observer Rights. (a) The Company agrees that it will invite Observer From and after the Initial Closing until such time as the Note is repaid in full or the Investor no longer owns any Securities and subject to attendSection 7.5, in a non-voting observer capacitythe Investor shall have the right, all meetings of but not the Board and any and all Committees for the purposes of permitting Observer obligation, to have current information with respect designate one (1) member to the affairs Company’s Board of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto Directors (the “Approved PurposesInvestor Director”). Observer The Company shall use its reasonable best efforts to cause the Investor Director to be elected to the Company’s Board of Directors, subject to compliance with applicable laws and the rules of the Company’s Trading Market. The Investor shall have the right to be heard at remove or replace the Investor Director by giving notice to such Investor Director and the Company, and the Company shall use its reasonable best efforts to effect the removal or replacement of any such meetingInvestor Director. Subject to any limitations imposed by applicable law, but the Investor Director shall be entitled to the same perquisites, including stock options, reimbursement of expenses and other similar rights in no event shall Observer: (i) be deemed to be a connection with such person’s membership on the Board of Directors of the Company, as every other non-employee member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of Directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting Subject to Section 7.5, at any time that there is not an Investor Director on the Board of Directors of the Company, the Investor shall have the right to designate one (1) observer (the “Investor Observer”) to attend all meetings of the Company’s Board of Directors and committees thereof (other than the portion of meetings from which the Investor or the Investor Observer is excluded by virtue of being “interested” or otherwise involved in matters subject to the Board of Directors’ or the committee’s deliberations, as determined in good faith by the Board of Directors), and to receive all information made available to all members of the Board or any committees thereof (other than such information relating to the portion of meetings from which the Committees Investor or the Investor Observer is conducted via telephone excluded by virtue of being “interested” or other electronic medium (e.g.otherwise involved in matters subject to the Board of Directors’ or the committee’s deliberations, videoconferenceas determined in good faith by the Board of Directors or such committee, as applicable), . The Investor Observer may shall have the same rights as those who customarily attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail)position.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 2 contracts
Samples: Note Purchase Agreement (Abiomed Inc), Note Purchase Agreement (World Heart Corp)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting nonvoting observer capacity, all meetings of the Company’s Board of Directors and any and all Committees thereof for the purposes sole purpose of permitting Observer and its affiliates, Investor and Parent (collectively, with their respective or collective affiliates, the “Starwood Companies”) to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto of Directors (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) the Observer be deemed to be a member of the Board or such Committees; (ii) Committees or have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting nonvoting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are is provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement for anyone other than (i) Observer, (ii) a successor observer, if one has been appointed by Observer the Investor pursuant to provide Section 2.1(a) of the Investor Rights Agreement, or (iii) an observer designee, if one has been designated by the Investor pursuant to Section 2.1(b) of the Investor Rights Agreement, to attend or participate in any other person access to way in such meeting meeting, directly or indirectly, without the Company’s express prior written consent (which consent may be by e-mail)consent.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: if (i) the Board concludes in good faith, Company believes upon advice of the Company’s counsel, counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the BoardBoard of Directors, independent auditors and/or legal counsel, as the Board of Directors may designate, designate and the Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by of an independent director member of the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedBoard of Directors.
(d) The Company shall compensate reimburse the Observer in on a quarterly basis for the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: upon (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which any of the Starwood Companies and/or Observer, (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iiiii) the death or disability of Observer, (iii) termination of the Investor’s right to appoint and maintain an Observer to the Company’s Board as provided in the Investor Rights Agreement, or (iv) any separation by Observer from the Starwood Companies.
Appears in 1 contract
Samples: Board Observer and Indemnification Agreement (Griffin Capital Essential Asset REIT, Inc.)
Board Observer Rights. For so long as the Investor and its respective Affiliates collectively hold at least 75% (asubject to the proviso below) The Company agrees that it will invite Observer of the number of shares of Common Stock, warrants to attendpurchase Common Stock, in a non-voting observer capacityother equity securities or securities exercisable for Common Stock or other equity securities held as of the date hereof (the “Qualifying Equity”), all the Investor shall have the right to send one (1) representative reasonably acceptable to the Corporation to observe meetings of the Board and any and all Committees for committees thereof (an “Observer”). The Observer shall, along with the purposes of permitting Observer to have current information with respect to the affairs members of the Company Board, as applicable, receive notices of Board and the actions taken by committee meetings and copies of the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meetingcommittee presentations, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, consents and all other materials or delivered to members of the Board; provided, however, that the Observer may decline the receipt of certain types of materials and other information (financial or otherwise) that are provided in its sole discretion. An Observer will not have any right to the directors with respect to a meeting or vote at any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any committee thereof. By sending a representative to a meeting, each Person appointing an Observer shall agree, and each such Observer shall agree, to be bound by all confidentiality duties that apply to members of the Committees is conducted via telephone or other electronic medium (e.g.Board at such meetings, videoconference)including with respect to any materials to which such Observer had access. In addition, Observer may attend such meeting via if upon the same medium; provided, however, that it shall be a material breach reasonable advice of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding counsel of the foregoingCorporation, the Company may exclude Board determines in good faith that the presence of any Observer from at any Board or committee meeting or any Observer’s access to any material materials related to such Board or committee meeting would constitute a conflict of interest, waive legal or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company or violate applicable law or regulation, upon notice to such Observer regarding such meeting and such counsel; providedconflict, howeverwaiver or violation, that any such exclusion Observer shall apply only not be entitled to participate in and shall leave such meeting until such time as his or her presence would no longer result in such conflict, waiver or violation and/or shall not be permitted access to such portion of the material materials, as applicable. The Investor may, in its sole discretion, decline to appoint an Observer or such portion of the meeting which would be required to preserve such privilege and elect not to continue to exercise its right to maintain an Observer at any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, time and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, time following the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boarddate hereof.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Board Observer Rights Agreement (Madison Square Garden Co)
Board Observer Rights. From and after three (a3) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings Business Days following Agent notifying the Loan Parties of the Board and any and all Committees for the purposes name of permitting Observer to have current information with respect an independent director/manager candidate acceptable to the affairs of Agent (including any replacement candidate acceptable to the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (Agent, if applicable, the “Approved PurposesAcceptable Independent Manager,” and such deadline, the “Board Observer Deadline”). Observer shall have , the right to be heard at any such meeting, but in no event shall ObserverAcceptable Independent Manager shall: (i) be deemed permitted to be a member attend each meeting of the Board of Managers or similar governing body of Holdings and each other Loan Party that is governed by a Governing Body from time to time (collectively, the “Board-Governed Entities”) and each committee and subcommittee thereof (including, without limitation, any special committee and any informal “Executive Committee” of officers and Managers) (such CommitteesBoards of Managers or other governing bodies, and all such committees and subcommittees, collectively, the “Governing Bodies”), in each case as a non-voting board observer; (ii) have receive notice from the right to vote on any matter under consideration by Governing Bodies of the Board or such Committees or otherwise have any power to cause time and place of each meeting of the Company to take, or not to take, any action; or (iii) except Governing Bodies in the same manner and at the same time as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) notice is given to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable other members of such Governing Bodies, which notice shall to the directors extent practicable be given at least two (2) Business Days prior to any such meeting, (c) receive copies of all reports, documents, materials and information (collectively, the “Meeting Materials”) provided to the members of the Company. As a nonGoverning Bodies of each Board-voting observer, Observer will also be provided (concurrently with delivery to Governed Entity at the directors of the Company same time and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that as are provided to the directors with respect to a meeting other members of such Governing Bodies (whether disseminated in writing, orally, by email or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconferenceotherwise), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer promptly reimbursed for all reasonable and documented out-of-pocket costs and expenses incurred by Observer the Acceptable Independent Manager in connection with attendance at Board and Committee meetingshis or her board observer work. All compensation and reimbursements payable by The Acceptable Independent Manager shall have a duty of confidentiality to each Loan Party comparable to such duty of a director or manager, as applicable, of each Loan Party; provided that the Company pursuant to this Section 1(d) Acceptable Independent Manager shall be paid permitted to Observer disclose all Meeting Materials and other information discussed in accordance meetings of the Governing Bodies to the Agent, Lenders and their advisors subject to the confidentiality provisions of the Credit Agreement. Notwithstanding the foregoing, each Loan Party shall be permitted to withhold or redact any Meeting Materials, and to exclude the Acceptable Independent Manager from any part of any meeting of any Governing Body, in each case solely to the extent that the Loan Parties reasonably believe, upon advise of counsel (including internal counsel), that withholding such information is necessary to preserve attorney-client privilege, avoid an actual conflict of interest arising in connection with any discussion of matters being negotiated with the Company’s policies Agent and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereofLenders, or (B) if such violation is otherwise not subject permitted to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observerbe so shared by any applicable Governmental Authority.
Appears in 1 contract
Samples: Forbearance Agreement and Ninth Amendment to Credit Agreement (Unifund Financial Technologies, Inc.)
Board Observer Rights. (a) The Beginning on the date hereof until the date of exercise of the option in accordance with the terms of the Option and Collaboration Agreement or the expiration of the option period as set forth therein (the “Observer Period”), the Company agrees that it will invite Observer one representative designated by the Purchaser (the “Observer”) to attend, in a non-voting observer capacity, all formal meetings of the Board and any and all Committees of Directors in which a quorum is present for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto of Directors (the “Approved Purposes”); provided that such Observer designated by the Purchaser is subject to the Company’s approval (which approval shall not be unreasonably withheld). Observer shall have the right to be heard at any such meeting, but in In no event shall Observer: (i) be deemed to be a member of the Board or such Committeesof Directors; (ii) have the right to vote on any matter under consideration by the Board or such Committees of Directors or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this AgreementSection 5.1, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (cd) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Sucampo Pharmaceuticals, Inc.)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings Each of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; SoftBank and (ii) have each Initial Stockholder that, together with its Affiliates, beneficially owns at least ten percent (10%) of the right to vote on any matter under consideration by Outstanding Shares as of the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or Effective Date and (iii) except each Stockholder for so long as expressly set forth such Stockholder, together with its Affiliates, beneficially owns at least ten percent (10%) of Outstanding Shares from time to time will, in this Agreementeach case and without duplication, have or be deemed entitled to have, or otherwise be subject to, any duties designate one (fiduciary or otherwise1) individual as an observer to the Company or its stockholders or any duties Board (fiduciary or otherwiseeach, a “Board Observer”) otherwise applicable by at least two Business Days’ advance written notice to the directors of the Company. As a non-voting observer, Corporation (and such Board Observer will also be provided (concurrently with delivery subject to removal or replacement for no reason or any reason whatsoever by the Stockholder who appointed such Board Observer by notice to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) belowCorporation).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it the Board has not reasonably determined in good faith that such Board Observer is a Competitor; and provided, further, that no Initial Stockholder shall be entitled to designate a material breach Board Observer pursuant to this Section 2.9, if such Initial Stockholder, together with its Affiliates, fails to beneficially own at least fifty percent (50%) of the shares of Common Stock (subject to appropriate equitable adjustment for any stock splits, stock dividends, combinations, recapitalizations and the like) held by such Initial Stockholder and its Affiliates as of the Effective Date. For the avoidance of doubt, any Designating Stockholder’s right to designate a Board Observer pursuant to this Agreement by Observer to provide Section 2.9 or any termination of such right shall not affect any designation rights of such Designating Stockholder or the designation rights of any other person access Designating Stockholder.
(b) Each Board Observer will be entitled to (i) be given notice of any meeting of the Board at the same time and in the same manner as the members of the Board, (ii) be present at any such meetings of the Board in a nonvoting observer capacity, (iii) receive copies of all minutes of meetings of the Board and written consents in lieu of such meetings at the same time as such materials are delivered to the members of the Board and (iv) receive copies of all written materials and other information distributed to the Board at the time such materials are given to the members of the Board. Notwithstanding the foregoing, no Board Observer will be entitled to attend any meeting of the Board or portion thereof, and any materials and other information provided to the Board Observer in connection with such meeting shall be redacted, to the extent that the Corporation has reasonably determined that such exclusion or redaction is necessary to avoid the disclosure of trade secrets or other competitively sensitive information and (C) the Corporation and the Board may take all reasonable actions in good faith, based on the advice of counsel, to maintain the integrity of attorney-client privileged communications; provided that, in the case of clauses (B) and (C), (1) the Corporation and its Subsidiaries will use good faith efforts to minimize such withholding or exclusion (as applicable) and (2) such materials will be provided to such meeting without Board Observer with redactions or other customary limitations; provided, further that the Company’s express Corporation shall provide prior written consent notice of any such exclusion or preclusion stating the general basis therefor to the relevant Board Observer (which consent may description shall be by egeneral enough as to not affect attorney-mailclient privileged communications (as applicable)).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access The Corporation will not pay any compensation to any material or Board Observer for their services as an observer to the Board. For the avoidance of doubt, Board Observers will not be counted for purposes of determining whether a quorum exists for a meeting or portion thereof if: (i) of the Board concludes in good faith, upon advice of under the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedBylaws.
(d) The Company Each Board Observer shall compensate Observer be required to enter into a customary confidentiality agreement in a form reasonably required by the same amount of all cash retainers, Board (acting in good faith) prior to attending any meeting fees and any other cash fees as if Observer were an independent director member of the Board or receiving any written materials and a member of each of other information distributed to the committees thereof, as Board; provided that such cash compensation may confidentiality agreement shall be modified from time on reasonable and customary terms (and in any event on terms not more restrictive on the Board Observer than those set forth in Section 4.1) and shall permit such Board Observer to timecommunicate the Confidential Information in accordance with the following sentence. Further, Each Board Observer will be permitted to communicate the Company shall reimburse Confidential Information received by such Board Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid 2.9 to the members of the BoardStockholder that appointed such Board Observer and such Stockholder’s Affiliates and Representatives so long as each such Person enters into such a customary confidentiality agreement.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Stockholders Agreement (WeWork Inc.)
Board Observer Rights. So long as any Obligations are outstanding and the Commitment remains in effect, Borrower shall hold meetings of its board of directors (aeither in person or by telephone) The Company agrees that it will invite Observer at least once every calendar quarter. Lender shall be notified in writing of the date and time for each such board meeting by notice sent (which may be oral notice) at the same time as notice thereof is sent to attend, in a the members of Borrower’s board of directors (which notice shall also state whether Borrower expects any material non-voting observer capacitypublic information will be disclosed in the meeting), and if Lender requests, Lender shall receive all meetings of the Board reports and any and all Committees for the purposes of permitting Observer to have current information with respect other board materials that are provided in writing or electronically (or otherwise made available) to the affairs board members (and Borrower will advise Lender whether any material non-public information is included in the reports and board materials if requested by Lender), except any that are subject to attorney/client or other legal privilege of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”)Borrower, any Subsidiary or any of their officers or directors. Observer Lender shall have the right to be heard have one (1) designated representative, at any such meetingBorrower’s expense and subject to reasonable and customary confidentiality obligations, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumboard meetings as an observer; provided, however, that it such observer shall not constitute a member of such board and shall not be a material breach of this Agreement by Observer entitled to provide vote on any other person access matters presented to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingboard; provided, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counselfurther, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would observer may be required to preserve leave such meetings (or may receive certain materials with redacted portions) to the extent a legal privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer arises in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer issues being discussed (or described in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then such materials), in effect; provided, howevereach case, that any reasonably would be expected to be lost if the observer were not to leave or were to receive such compensation or reimbursement redacted information, as applicable. Lender and its designated board observer shall be paid execute a confidentiality and non-disclosure agreement, in form reasonably satisfactory to Observer no later than comparable compensation or reimbursement is paid Borrower, prior to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, any documents or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observerinformation that Borrower deems material non-public information.
Appears in 1 contract
Samples: Loan Agreement (Dgse Companies Inc)
Board Observer Rights. You and the Company acknowledge and agree as follows:
(a) The Company agrees that it For so long as five percent (5%) or more of the outstanding Shares are owned by investors who purchased their Shares in the Offering due to your solicitation efforts (rather than due to referrals to you from the Company’s officers, directors or affiliates), you will invite Observer have the right to attenddesignate, in subject to the Company’s approval, which shall not be unreasonably withheld, one (1) individual to serve as a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs Company’s Board of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto Directors (the “Approved PurposesObserver”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting The Observer will be (i) entitled to proper notice of all meetings of the Company’s Board of Directors, (ii) permitted to attend such meetings via telephone, (iii) entitled to receive the same compensation (including stock options, if any) as that paid or awarded to the Company’s independent directors, and (iv) entitled to reimbursement of travel expenses incurred in connection with in-person attendance at any meetings of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumCompany’s Board of Directors; provided, however, that it such reimbursement shall be a material breach of this Agreement by limited to an aggregate amount equal to One Thousand Five Hundred Dollars ($1,500) per meeting and that the Observer shall be required to provide any other person access fly economy class to all such meeting without the Company’s express prior written consent (which consent may be by e-mail)meetings.
(c) Notwithstanding the foregoingFor clarity sake, the Company may exclude Observer from access Observer, and any person possessing any such rights to any material or meeting or portion thereof if: observe the Company’s Board of Directors (i) will not be deemed to be a director of the Company under the Florida Business Corporation Act, as amended, the rules and regulations of The Nasdaq Stock Market, LLC or the Commission, (ii) will take any and all actions necessary to ensure that such a person will not be deemed to be a director of the Company under the Florida Business Corporation Act, as amended, the rules and regulations of The Nasdaq Stock Market, LLC or the Commission, and (iii) with notice, all such persons possessing any such rights to observe the Company’s Board concludes in good faithof Directors (including the Observer) may be excluded, upon advice excused or dismissed as a group from meetings of the committees and subcommittees of the Company’s counsel, that such exclusion is reasonably necessary to preserve Board of Directors upon the attorney-client privilege between request (and at the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion discretion) of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardsuch committees or subcommittees and all such persons will comply with all such requests.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. 1. The Observer has the right to attend all meetings (aincluding telephonic or videoconference meetings) The Company agrees that it will invite Observer to attend, of the Company’s in a non-voting voting, observer capacity, all meetings of the Board capacity on and any and all Committees for the purposes of permitting Observer to have current information with respect subject to the affairs terms herein. The Observer may participate in discussions of all matters brought to the Company and the actions taken by the Company’s Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meetingfor consideration, but in no event shall Observer: the Observer (ia) take an active role in any Company’s Board meeting such as by moving any motion, voting on any matter or seeking to influence the actions of the Company’s Board; (b) sign any Company’s Board resolutions; (c) be deemed to be a member of the Company’s Board or such Committeeshold himself or herself out as a member of the Company’s Board; and (iid) have without limitation of the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as obligations expressly set forth in this Agreementherein, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable shareholders. Upon request, the Company shall allow the Observer to the directors attend meetings of the Company’s by telephone or electronic communication. As The presence of the Observer shall not be required for purposes of establishing a non-voting observer, Observer will also quorum and shall not be provided (concurrently with delivery considered in determining such quorum.
2. The Company shall provide to the directors of the Company and in the same manner delivery is made to them) Observer copies of all notices, minutes, consents and other materials that it provides to Company’s Board members (collectively, “Board Materials”), including any draft versions, proposed written consents, and all other materials or exhibits and annexes to any such materials, at the same time and in the same manner as such information (financial or otherwise) that are provided is delivered to the directors with respect to a meeting or any written consent in lieu members of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail)Board. The Observer shall have the right to share all such Board Materials with the Purchaser.
(c) 3. Notwithstanding anything herein to the foregoingcontrary, the Company may exclude the Observer from access to any material or Board Materials, meeting or portion thereof if: (i) if the Company’s Board concludes concludes, acting in good faith, upon advice of the Company’s counsel, that (a) such exclusion is reasonably necessary to preserve the attorneysolicitor-client or work product privilege between the Company or any of its Affiliates and such counsel; its or their counsel (provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege privilege); (b) such Board Materials or discussions relate to the Company’s relationship, contractual or otherwise, with the Purchaser or any actual or potential transactions between or involving the Company and not to any other portion thereofthe Purchaser; or (iic) such portion exclusion is necessary to avoid a conflict of a meeting interest or disclosure that is an executive session limited solely restricted by any agreement to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedCompany or any of its Affiliates is a party or otherwise bound.
(d) 4. The Company shall compensate Observer in agrees to reimburse the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with the Observer’s attendance at Board and Committee meetings. All compensation and meetings of the Company’s Board; provided that all reimbursements payable by the Company pursuant to this Section 1(d) contemplated herein shall be paid to Observer payable in accordance with and subject to the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Purchase Option Agreement (Fire & Flower Holdings Corp.)
Board Observer Rights. For so long as the Industrial Investor --------------------- owns at least 1,000,000 Shares of Common Stock, on an as if converted basis (aadjusted for stock splits, combinations and the like), the Industrial Investor shall be entitled to designate, upon written notice to the Company, one (1) The individual reasonably acceptable to the Company agrees that it will invite Observer (such designee, the "Observer") who shall be entitled to notice of, to attend, in a non-voting observer capacityand to any documentation distributed to the directors before, during or after, all meetings (including any action to be taken by written consent) of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumcommittees thereof; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may reserves the right to withhold any information and to exclude such Observer from access to any material or meeting or portion thereof if: if access to such information or attendance at such meeting could
(i) in the Board concludes in good faith, upon advice judgment of the Company’s 's outside counsel, that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and such counsel; providedits counsel or cause the Board to breach its fiduciary duties, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or or
(ii) such portion in the good faith determination of a meeting is an executive session limited solely to independent director members majority of the Board, independent auditors and/or legal counsel, as result in a conflict between the Board may designate, and Observer (assuming Observer were a member interests of the Board) would Company and those of such Observer, the Industrial Investor or any of their affiliates. The Observer shall not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, be permitted to vote at any meeting fees and any other cash fees as if Observer were an independent director member of the Board or be counted for purposes of determining whether there is sufficient quorum for the Board to conduct its business. The Industrial Investor and a member Observer shall maintain the confidentiality of each all financial, confidential and proprietary information of the committees thereof, Company obtained by them as such cash compensation may be modified from time to time. Further, a result of the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company rights granted pursuant to this Section 1(d) shall be paid 18.6. By designating an Observer, the Industrial Investor agrees to cause such Observer in accordance with upon the Company’s policies and practices with respect 's request to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members execute an agreement providing for nondisclosure of the Board.
(e) Company's proprietary information consistent with such agreements signed by the Company's employees. The rights described parties hereto hereby acknowledge and agree that, except as set forth in this Section 1 18.6, an Observer shall terminate upon: (i) not owe any fiduciary or other duties to the end shareholders of the Observer Period, Company or otherwise have any directorial or other duties or liabilities to the Company or its shareholders as described in the Merger Agreement; (ii) any material violation a result of the terms Observer's exercise of his rights hereunder. The Industrial Investor shall designate, and may replace, its Observer with or without cause in its sole discretion by providing written notice to the Company at least five (5) business days prior to any such action taking effect. In addition to the events of termination set forth in Section 18.7, any rights granted to an Observer under this Section 18.6 shall immediately terminate if the Industrial Investor no longer owns at least 1,000,000 shares of Common Stock, on an as if converted basis (adjusted for stock splits, combinations and the like). Exercise of the observer rights granted in this Section 18.6 shall not be transferable to a transferee or assignee of shares of the Company's capital stock. Notwithstanding anything contained herein to the contrary, the Company's failure to comply with any provision of this Agreement Section 18.6 shall not affect the validity of any action taken (whether at a meeting or by Observer which (Awritten consent) remains uncured within ten business days after receipt of notice by the Board, or any committee thereof, or (B) if such violation is not subject to cure, directly causes harm to by any or all of the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverCompany's stockholders.
Appears in 1 contract
Samples: Rights and Restrictions Agreement (Emachines Inc /De/)
Board Observer Rights. (a) The If the Investor Adviser’s Controlled Affiliates Beneficially Own Subject Shares representing at least 5% of the issued and outstanding Common Stock of the Company agrees immediately after the Closing on a fully-diluted basis (including treating warrants on an as-exercised basis), the Investors may jointly select (by a majority in interest of the Equity Securities held by such Investors in the Company on an as-converted basis, and the Company will be entitled to rely on any instruction from or on behalf the Investors that it will invite Observer the Company believes to attend, in be genuine) a non-voting observer capacity(a “Board Observer”) reasonably satisfactory to the Company, who will be entitled to notice of, to attend, and participate in, as a non-voting observer, all meetings of the Board (including any executive sessions thereof), whether in person, telephonically or otherwise. For the avoidance of doubt, the Board Observer may be an employee of an Investor or its Affiliates. If Investor Adviser’s Controlled Affiliates at any time Transfer any Equity Securities of the Company and, following such Transfer, collectively cease to hold at least [●]%2 of the Subject Shares, the Investors will lose the right to select a Board Observer and any and all Committees for the purposes participation rights of permitting any such Board Observer to have current information with respect to the affairs of the then selected shall immediately cease.
(b) The Company and the actions taken by shall give the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, consents and all other materials that it provides to its members of the Board or committees thereof, concurrently with the members of the Board or committee, as applicable. Notwithstanding the foregoing, the Board Observer may, in the sole discretion of the Board or committee, acting reasonably and in good faith, be excluded from all or part of any meetings, 2 To be set at the percentage that would result in the Investor Adviser’s Controlled Affiliates holding less than 5% as of the closing. That is, if the Investor Adviser’s Controlled Affiliates hold 10% immediately after the closing, this number would be 50%. or from access to any information, if the Board or committee has determined in good faith (and such determination is based on the advice of legal counsel to the Company (which may include internal legal counsel)) that such Board Observer’s attendance or access would be reasonably likely to result in the waiver of attorney-client privilege or attorney work product protection (provided that the Board or committee shall take reasonable steps to minimize any such exclusions to the extent practicable) or would reasonably be expected to present a conflict of interest for such Board Observer. If the Board Observer is so excluded or information (financial or otherwise) is withheld, then the Company will inform the Board Observer of the general nature of the subject matter discussed and explain the Board’s rationale for the decision to exclude the Board Observer. Each Investor acknowledges that the Board Observer shall be obligated to abide, in all respects, with all policies and procedures of the Company that are provided applicable to the directors all Directors, including with respect to a meeting or any written consent confidentiality. The Board Observer shall be permitted to share information with the Investors for purposes of monitoring and evaluating the Investors’ investment in lieu the Company, subject to Section 4.3. For purposes of meeting (except to clarification and the extent avoidance of doubt, the Board Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting shall be an observer only, shall not be an actual member of the Board or any board of a Subsidiary or committee thereof, and shall not have any right to vote on any matter that may come before the Committees is conducted via telephone Board, committee or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be board of a material breach of this Agreement by Observer Subsidiary or any fiduciary obligations to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice Subsidiary of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between any equityholder or other security holder of the Company and such counsel; provided, however, that or any such exclusion shall apply only to such portion Subsidiary of the material Company, or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is Person arising from being an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) observer. The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of reimburse the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket travel expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance (consistent with the Company’s policies and practices travel policy) in connection with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members attending meetings of the Board, subject to any maximum reimbursement obligations of general applicability to non-executive Directors as may be established by the Board from time to time.
(ec) The rights described in this Section 1 Investors’ right to select a Board Observer shall terminate upon: (i) not create any obligation on behalf of any Investor, the end Investor Adviser or any of the Observer Period, as described in the Merger Agreement; (ii) its Affiliates to communicate or present any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm opportunity to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability any of Observerits Subsidiaries.
Appears in 1 contract
Board Observer Rights. So long as St. Cloud Capital Partners, L.P. (a"SCC") The or any of its Affiliates are the beneficial owners (as defined under Rule 13d-3 promulgated under the 1934 Act) of at least 10% of the Common Stock (as determined pursuaxx xx xxch Rule 13d-3), the Company agrees that it will invite Observer shall give SCC written notice of each meeting of the Company's Board of Directors and each committee thereof at least at the same time and in the same manner as notice is given to attendthe directors, in and the Company shall permit a non-voting representative of SCC to attend as an observer capacity, all meetings of the Company's Board and any of Directors and all Committees for committees thereof; provided that in the purposes case of permitting Observer telephonic meetings conducted in accordance with the Company's bylaws and applicable law, the SCC representative shall be given the opportunity to have current information with respect listen to the affairs of such telephonic meetings; and provided, further, that the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at exclude the SCC representative from any such meetingportion of a meeting if, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors good faith judgment of the Company's counsel, the inclusion of the SCC representative therein would result in the waiver of any applicable privilege. As a non-voting observer, Observer will also The SCC representative shall be provided entitled to receive all written materials and other information (concurrently including without limitation copies of meeting minutes) given to directors in connection with delivery such meetings at the same time such materials and information are given to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumdirectors; provided, however, that it the Company shall be a material breach of this Agreement by Observer have the right to provide any other person access information to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding SCC representative if, in the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice faith judgment of the Company’s 's counsel, that the provision of such exclusion is reasonably necessary information to preserve the attorney-client privilege between SCC representative would result in the waiver of any applicable privilege. If the Company and such counsel; provided, however, that proposes to take any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion action by written consent in lieu of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the its Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, Directors or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees committee thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all give written notice thereof to the SCC representative and each of the Company's directors prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company shall pay the reasonable out-of-pocket expenses of the SCC representative incurred by Observer in connection with attendance at Board attending such board and Committee committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Securities Purchase Agreement (Olympic Cascade Financial Corp)
Board Observer Rights. At all times while this Agreement is in effect that (a) The Company agrees that it will invite Observer to attendthe Purchaser Beneficially Owns at least six percent (6%) of the outstanding Capital Stock of the Company, but less than ten percent (10%) of the outstanding Capital Stock of the Company, in each case calculated on a fully diluted basis using the treasury method of accounting, and (b) other than any Transfer made pursuant to Section 7(b)(iv) of the Purchase Agreement, has not transferred any shares of Capital Stock issued to Purchaser upon exercise of the Option to any Person that is not a Permitted Transferee or to any Prohibited Assignee, Purchaser shall have the right to designate one observer to the Board of Directors, so long as such observer is not an employee or non-voting independent director of Purchaser or any of its subsidiaries. Such observer’s attendance shall be limited, in their nonvoting observer capacity, to all meetings of the Board of Directors, excluding all executive sessions and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member committee meetings of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the CompanyDirectors. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) Such observer shall receive copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except meetings that such observer is entitled to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumattend; provided, however, that it (i) the observer shall not be a material breach entitled to vote on any matter submitted to the Board of this Agreement by Observer Directors or any of its committees nor to provide offer any other person access motions or resolutions to the Board of Directors or such meeting without the Company’s express prior written consent committees; (which consent ii) such observer shall agree to hold in confidence all information so provided; provided that such observer may be by e-mail).
share such information with Cronos and its Representatives; and (ciii) Notwithstanding the foregoing, that the Company may reserves the right to withhold any information and to exclude Observer such observer from access to any material or meeting or portion thereof if: if access to such information or attendance at such meeting would reasonably be expected (i) the Board concludes in good faith, upon advice of the Company’s counselreasonable judgment) to result in (A) a violation of applicable Law, (B) the disclosure of any trade secrets in a manner that would result in any such exclusion is reasonably necessary to preserve trade secrets no longer being protected under applicable Law following such disclosure, (C) a waiver of the protection of any attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; protection or (iiD) such portion a conflict of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedinterest.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer During the period from the date hereof until the Investor holds Preferred Shares, based upon the then applicable conversion price, equal to attendat least five percent (5%) of the then issued and outstanding shares of the Company's Common Stock, in based on the then applicable conversion price of such securities, Investor shall be entitled to appoint a non-voting observer capacity, (the "OBSERVER") to the Company's Board of Directors who is acceptable to the Company; and such Observer shall be entitled to attend all meetings of the Company's Board of Directors and any committees thereof (other than the audit, nomination, governance, and compensation committees) and shall receive notice of all meetings and all Committees for the purposes of permitting Observer materials furnished to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors members of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to 's Board of Directors in their capacities as such at the directors of the Company same time and in the same manner delivery is made to them) copies of all notices, minutes, consents, as such notice and all other materials or information (financial or otherwise) that are provided to the directors Board of Directors, unless the Board of Directors of the Company shall in good faith determine, after having consulted with respect and considered the advice of outside counsel, that delivery of such notice and/or materials to Investor would constitute a meeting breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. Upon the request of the Board of Directors of the Company, the Observer will excuse himself or herself from any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting portion of the Board or any committee meetings if the Board of Directors shall reasonably determine that the Observer's presence may violate the attorney-client privilege, create a conflict of interest or otherwise constitute a breach of fiduciary duties of the Committees is conducted via telephone members of such Board of Directors to its stockholders under applicable law. The materials furnished to Investor and the discussions and presentations in connection with or other electronic medium (e.g., videoconference), Observer may attend at such meeting via the same mediummeetings shall be considered confidential information and Investor shall not disclose such materials and discussions to any third party; provided, however, that it the foregoing shall be a not limit in any manner the rights of Investor under the Technology Agreements.
(b) The Investor acknowledges that the use or disclosure of any information which is material breach and non-public ("INSIDE INFORMATION"), or trading in the securities of this Agreement the Company on the basis of such Inside Information, may result in civil and criminal penalties and enforcement proceedings commenced by Observer to provide the SEC and others in the event the Investor, its affiliates or any other person access to such meeting without of its employees engages in transactions involving the capital stock of the Company’s express prior written consent (which consent . Because of receipt of the confidential information provided to the Investor and its Nominee, the Investor and its Nominee may be by e-mail)deemed to have Inside Information regarding the Company.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate acknowledges that the Observer in the same amount of all cash retainerswill likely have, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, information that may be of interest to the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred ("INFORMATION") regarding a wide variety of matters including, by Observer in connection way of example only, (a) Investor's technologies, plans and services, and plans and strategies relating thereto, (b) current and future investments Investor has made, may make, may consider or may become aware of with attendance at Board respect to other companies and Committee meetings. All compensation other technologies, products and reimbursements payable by the Company pursuant to this Section 1(d) shall services, including, without limitation, 22 - 22 - technologies, products and services that may be paid to Observer in accordance competitive with the Company’s policies 's, and practices (c) developments with respect to director compensation the technologies, products and expense reimbursement then in effect; providedservices, howeverand plans and strategies relating thereto, of other companies, including, without limitation, companies that any may be competitive with the Company. The Company recognizes that a portion of such compensation or reimbursement shall Information may be paid to Observer no later than comparable compensation or reimbursement is paid of interest to the members Company. Such Information may or may not be known by the Observer. The Company, as a material part of the Board.
(e) The rights described in consideration for this Section 1 Agreement, agrees that Investor and its Observer shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) have no duty to disclose any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm Information to the Company or permit the Company to participate in any projects or investments based on any Information, or to otherwise take advantage of any opportunity that may be of interest to the Board’s sole Company if it were aware of such Information, and absolute discretion; hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or (iii) otherwise that could limit Investor's ability to pursue opportunities based on such Information or that would require Investor or Observer to disclose any such Information to the death Company or disability of Observeroffer any opportunity relating thereto to the Company.
Appears in 1 contract
Samples: Securities Purchase Agreement (Silicon Graphics Inc /Ca/)
Board Observer Rights. For so long as PE Investor holds a number of shares of Common Stock representing at least five percent (a5%) The of the outstanding shares of Common Stock, the Company agrees that it will invite Observer permit an individual designated in writing by PE Investor from time to attendtime (each, in a non-voting observer capacity, all an “Observer”) to attend meetings of the Board and of any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except advisory board as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer and will also be provided (concurrently with delivery to give such individual notice of such meetings at the directors of the Company same time and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided as notice to the directors with respect or advisory board members. Each Observer shall be entitled to a meeting or concurrent receipt of any written consent in lieu of meeting (except materials provided to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any advisory board, subject to the confidentiality obligations set forth in a customary confidentiality agreement to be entered into by and between PE Investor and the Company. The foregoing notwithstanding, (a) the Board shall retain the right to exclude an Observer from meetings, discussions and materials (i) to the extent the Board in the exercise of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall its reasonable business judgment reasonably believes there to be a material breach conflict of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent interest, (which consent may be by e-mail).
(cii) Notwithstanding the foregoing, the Company may exclude Observer from access with respect to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice discussions of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege disputes between the Company and PE Investor or its Affiliates, and (iii) as necessary, upon advice from counsel to the Company, to protect attorney-client privilege, (b) the Board shall retain the right to require PE Investor to replace its designated Observer if the Board in the exercise of its reasonable business judgment reasonably determines that such counsel; provided, however, that any such exclusion Observer is not performing his or her duties in a reasonable manner and (c) the right of PE Investor to have an Observer at the Board’s meetings shall apply only to such portion of the material or such portion of the meeting which would not be required to preserve such privilege and not transferable to any other portion thereof; unrelated third party. No Observer, its Affiliates or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Boardits or their employees, independent auditors and/or legal counselofficers, as the Board may designatedirectors, agents, successors and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchangeassigns shall have any fiduciary or similar duty to, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and liability for any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Furtherdebt or obligation of, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant or to or of any other entity or person whatsoever as a result of this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that 2.8 or any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereofexercise of, or (B) if such violation is not subject failure to cureexercise, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability rights of Observeran Observer under this Agreement.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer From the date of the Closing and until such time as the Investor ceases to attendmaintain ownership of an aggregate amount of not less than 31,200,000 Ordinary Shares comprising the Note Shares, Warrant Shares and such Ordinary Shares into which the Note then held by the Investor are convertible and for which the Warrant held by the Investor is exercisable (in each case, as adjusted for share splits, share dividends, combinations and recapitalizations), the Investor shall be entitled to appoint one representative to attend meetings of the Board as a non-voting observer capacity, all meetings (the “Observer”). The Company will give the Observer written notice of each meeting of the Board and any and all Committees for at the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company same time and in the same manner delivery as notice is made given to them) the members of the Board and shall provide the Observer with copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that are provided it provides to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting members of the Board or any at the same time and in the same manner as such materials are given to the members of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide Board. Notwithstanding any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingright granted under Section 4.4, the Company may reserves the right to exclude the Observer from access to any material or meeting or portion thereof if: (i) if the Board concludes in good faith, upon Company believes on the advice of the Company’s counsel, counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege.
(a) The Observer shall agree to comply with the xxxxxxx xxxxxxx policies of the Company and all applicable xxxxxxx xxxxxxx laws and to maintain the confidentiality of all confidential information furnished to the Observer by the Company or otherwise obtained by the Observer in respect of any business transacted by the Board, whether oral, written or electronic, together with any reports, analyses, compilations, memoranda, notes and any other written or electronic materials prepared by the Observer or by the Observer’s Representatives (as defined below) that contain, reflect or are based upon such information (collectively, “Confidential Information”). Confidential Information may be disclosed to any general partners, counsel; provided, howeverfinancial advisors, that any such exclusion shall apply only to such portion consultants and other representatives of the material Observer (“Observer Representatives”), provided that the Observer shall be liable for any disclosure by any Observer Representative that is not permitted by this Section 4.4. The term “Confidential Information” does not include information that (i) is or such portion becomes publicly available other than as a result of a disclosure by the Observer or by any of the meeting which would be required to preserve such privilege and not to any other portion thereof; or Observer Representatives in violation of this Section 4.4, (ii) is already in the Observer’s or any Observer Representative’s possession, provided that such portion of a meeting information is an executive session limited solely to independent director members of not known by the Board, independent auditors and/or legal counselObserver or any such Observer Representative, as the Board case may designatebe, and to be subject to any legal or contractual obligation of confidentiality owed to the Company, (iii) is or becomes available to the Observer (assuming or any Observer were Representatives on a member of non-confidential basis from a source other than the Board) would Company, provided that such source is not meet the then-applicable standards for independence adopted known by the New York Stock Exchange, Observer or any such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereofRepresentatives, as such cash compensation the case may be, to be modified from time subject to time. Further, any legal or contractual obligation to the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any keep such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereofinformation confidential, or (Biv) if such violation is not subject to cure, directly causes harm to independently developed by the Company in Observer or on the BoardObserver’s sole and absolute discretion; or (iii) behalf without violating any of the death or disability of Observer’s obligations under this Section 4.4.
Appears in 1 contract
Samples: Note and Warrant Purchase Agreement (Kongzhong Corp)
Board Observer Rights. 10.1 The Company will provide the Initial Investors with prior notice of (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings the time and place of any proposed meeting of the Board and any and all Committees for the purposes board of permitting Observer to have current information with respect to the affairs directors of the Company Company, the board of directors or other governing body of any of the Company’s direct or indirect subsidiaries (any such board or other governing body meeting is referred to herein as a “Board Meeting”) and (b) any proposed action by written consent of the actions taken by board of directors of the Company, the board of directors or other governing body of any of the Company’s direct or indirect subsidiaries (any such board or other governing body consent is referred to herein as a “Board and Observer to provide input and advice with respect thereto (the “Approved PurposesConsent”). Observer In addition, the Company will provide the Initial Investors with copies of any documents that are provided by the Company or any of the Company’s direct or indirect subsidiaries to members of their respective boards of directors or other governing body in connection with any Board Meeting or Board Consent. All notices of meetings and written materials shall be delivered to the Initial Investors at the same time and in the same format as the notice of meeting and written materials delivered to the applicable board or body members. The Initial Investors shall be entitled to send two persons to attend any Board Meeting, or if a meeting is to be held by telephone conference, to have two persons participate therein, but the foregoing right of attendance or participation shall not include (i) the right to be heard at attend any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board committee meetings or such Committees; (ii) have the right to vote on any matter under consideration matters presented to the board of directors of the Company, the board of directors or other governing body of any of the Company’s direct or indirect subsidiaries. The representatives of the Initial Investors who attend Board Meetings shall be selected by the Board vote of the holders of a majority of the Registrable Securities held by the Initial Investors. Any information provided to the Initial Investors as a result of its rights under this Section 10 shall be treated by the Initial Investors in the same manner, including confidentiality, as if it had obtained such information as a board or such Committees body member, as applicable. The Initial Investors’ rights under this Section 10 shall terminate if (i) the Initial Investors no longer hold at least 5% of the outstanding shares of common stock of the Company, assuming exercise or otherwise have any power to cause conversion of all exercisable or convertible securities of the Company to take, or not to take, any action; held by the Initial Investors and their affiliates or (iiiii) except as expressly set forth the loans and all other monetary obligations under the Loan Agreement have been repaid in this Agreementfull.
10.2 The information that may be provided to the Board Observers by the Company may contain material statements, have information, projections and other data not publicly available (“Confidential Information”). The Initial Investor acknowledges that it is aware that the United States securities laws prohibit any person who has material nonpublic information about an issuer or be deemed an affiliate or controlling person of an issuer from purchasing or selling securities of such company or from communicating such information to haveany other person. The Initial Investor represents that it will maintain effective internal procedures with respect to maintaining the confidentiality and use of any Confidential Information, that it will not use the Confidential Information for any purpose in violation of U.S. federal securities laws or otherwise any other applicable law and that it will be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to same restrictions on trading as the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice board of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Investor Rights Agreement (Accredited Home Lenders Holding Co)
Board Observer Rights. 4.1 Beginning on the Effective Date and ending on the date that this Agreement terminates, Bridger hereby grants to each of MAM-MAB Member, LLC, a Delaware limited liability company (athe “Marathon Member”) The Company agrees that it will invite Observer and Avenue Sustainable Solutions Fund, L.P., a Delaware limited partnership, (the “Avenue Member”), the option and right to attendappoint a single representative (each, in a non-voting observer capacity“Board Observer” and together, the “Board Observers”), to attend all meetings (including, without limitation, telephonic meetings) of the full board of directors of Bridger (the “Board”) and any committee thereof (each, a “Committee”). The Board Observers shall not constitute members of the Board and shall not be entitled to vote on, or consent to, any and all Committees for the purposes of permitting Observer to have current information with respect matters presented to the affairs Board. The Board Observers shall be provided access to all materials and information provided on the same terms and in the same manner as provided to the other members of the Company and Board or the actions taken by the applicable Committee. The Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Observers shall have the right to be heard request to attend the executive sessions of the Board in connection with meetings the Board Observers otherwise have a right to attend, subject to approval by the Board.
4.2 Bridger shall (a) give the Board Observers notice of the applicable meeting or any proposed action taken by written consent at the same time and in the same manner as notice is given to the members of the Board or the applicable Committee, (b) provide the Board Observers with access to all materials and other information (including, without limitation, access to minutes of meetings or written consents of the full Board and any Committee) given to the members of the Board and the applicable Committee in connection with such meetingmeetings or actions taken by written consent at the same time and in the same manner such materials and information are furnished to such members of the Board or such Committee, but and (c) provide the Board Observers with all rights to attend (whether in no event shall person or by telephone or other means of electronic communication as solely determined by the applicable Board Observer: (i) be deemed to be such meetings as a member of the Board and each Committee. As promptly as practicable following the Effective Date, Bridger, on the one hand, and each Board Observer, on the other hand, shall negotiate in good faith a board observer agreement containing indemnification provisions in favor of such Board Observer and confidentiality provisions in form and substance customary for transactions of this type.
4.3 Notwithstanding any rights to be granted or such Committees; (ii) have provided to the Board Observers hereunder, Xxxxxxx reserves the right to vote on any matter under consideration by exclude the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer Observers from access to any material or meeting or portion thereof if: (i) if the Board concludes reasonably determines, in good faith, upon advice that such access would prevent the members of the Company’s counsel, that such exclusion is reasonably necessary to preserve the Board from engaging in attorney-client privilege between the Company and such counselprivileged communication; provided, however, that any such exclusion shall apply only be limited to such the portion of the material or and/or meeting that is the basis for such exclusion and shall not extend to any portion of the material and/or meeting which would be required that does not involve or pertain to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedexclusion.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Services Agreement (Bridger Aerospace Group Holdings, Inc.)
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in In no event shall Observer: (i) be deemed to be a member of the Board or such Committeesany committee thereof; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail)consent.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board[Reserved].
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iiiii) the death or disability of Observer; (iii) voluntary termination by Observer, or (iv) termination by mutual agreement between Observer and the Company.
Appears in 1 contract
Samples: Board Observer Agreement (EVO Transportation & Energy Services, Inc.)
Board Observer Rights. So long as both (ai) The Company agrees that it will invite Observer the Investor continues to attend, in a non-voting observer capacity, all meetings own at least ninety percent (90%) of the Board and any and all Committees for shares of Series A Preferred Stock owned by the purposes Investor as of permitting Observer the date of this Agreement (calculated to have current information with respect include shares of Common Stock issued to the affairs Investor upon conversion of such shares of Common Stock, so long as the Investor continues to own such shares of Common Stock, and appropriately adjusted to reflect any stock splits, stock dividends, combinations and other recapitalizations) and (ii) the supply agreement between the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto Investor has not expired or been terminated (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: other than (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration termination thereof by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As that constitutes a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; agreement or (ii) such portion a termination thereof by the Investor due to a material breach thereunder by the Company), the Investor shall be entitled to designate one individual (the "OBSERVER") who will be entitled to receive notice of a meeting is an executive session limited solely and to independent director members attend meetings of the Board, independent auditors and/or legal counselas an observer without any right to vote or provide consent as a director with respect to any matter; PROVIDED, that the foregoing Board observer rights will terminate upon the mutual agreement of the Investor and the Company. The identity of the Observer will be subject to the reasonable approval of the Company, PROVIDED, HOWEVER, that the initial Observer shall be that person named on SCHEDULE 4.4 attached hereto. The Observer will hold in confidence and trust any confidential information received in connection with his role as a Board Observer. In addition, information provided to the Board may designateObserver, and Observer (assuming Observer were a member the Observer's right to attend particular meetings of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, will be subject to reduction or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer elimination, in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members sole good faith judgment of the Board.
(e) , in the event that such information or such meetings will or might contain or reflect competitively sensitive information or matters that give rise to an actual or potential conflict of interest. The Board observation rights described provided in this Section 1 4.4 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observersurvive a Qualified IPO.
Appears in 1 contract
Samples: Investor's Rights Agreement (Wj Communications Inc)
Board Observer Rights. (a) The Company agrees that it will invite Observer Subject to attend, in the execution of a non-voting observer capacitydisclosure agreement, customary in form and substance, as requested in good faith by the Company, the Company shall allow one representative of Xxxx, for so long as Xxxx and its Affiliates beneficially own in the aggregate at least 1,100,000 shares of Common Stock (including any Notes Shares that would be issuable upon conversion of any Notes), subject to proportional adjustments to reflect stock-splits, combinations, subdivisions, or the like, to attend all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs Audit Committee of the Company Board, in each case in a nonvoting capacity, and the actions taken by the Board and Observer to provide input and advice in connection with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meetingobserver’s attendance, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) shall give such representative copies of all notices, minutes, consentsconsents and other materials, and all other materials or information (financial or otherwise) that are provided , which the Company provides to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or Audit Committee, as the case may be, prior to any such meeting. Xxxx shall provide the Company with written notice identifying the individual who shall exercise board observation rights on behalf of the Committees is conducted via telephone or other electronic medium (e.g.Xxxx from time to time, videoconference), Observer may attend such meeting via the same medium; provided, however, that it which individual shall be a material breach of this Agreement by Observer reasonably acceptable to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) . Notwithstanding the foregoing, the Company may Board reserves the right, in the good faith exercise of its reasonable business judgment, to exclude Observer any board observer from access to (1) attending any material portion(s) of any Board or Audit Committee meeting or portion thereof if: (i2) receiving materials delivered to the rest of the Board or Audit Committee in connection with such portion(s) of such Board meeting if (x) the Board concludes in good faith, Company believes upon advice of the Company’s counsel, counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only (y) access to such portion information or attendance at such meeting could create a conflict of interest between Xxxx or its observer representative, on the material or such portion of one hand, and the meeting which would be required to preserve such privilege and not to any Company, on the other portion thereof; hand, or (iiz) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or Board of Directors and legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that notwithstanding the foregoing, the Board may, in the exercise of its reasonable business judgment, permit such observer to attend such portions of a Board or Audit Committee meeting and receive such materials on the condition that such observer does not trade in the Company’s common stock based on such information or share the contents of the meeting or the materials with any person or entity. The decision of the Board with respect to any such compensation or reimbursement exclusion shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardfinal and binding.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. For so long as an Investor or subsequent holder of Convertible Securities holds or is deemed to hold at least One Million Five Hundred Thousand (a1,500,000) The shares of Registrable Securities (subject to adjustment for stock splits, reverse stock splits, stock dividends and other similar transactions with respect to such shares), the Company agrees that it will invite Observer shall allow one representative designated by such Investor (the “Observer”) to attend, attend meetings of the Board in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it no Investor or subsequent holder of Convertible Securities shall be entitled to designate an Observer if such holder or an Affiliate of such holder is entitled to nominate a material breach of this Agreement by Observer director to provide any other person access the Board pursuant to such meeting without the Company’s express prior written consent (which consent may be Amended and Restated Voting Agreement, dated as of the date hereof. The Company shall provide the Observer with copies of all materials that are provided by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counselits directors; provided, however, that any such exclusion shall apply only to such portion a majority of the material or such portion members of the Board shall be entitled to recuse the Observer from portions of any Board meeting which would be required and to redact portions of any Board or Board committee materials delivered to the Observer where and to the extent that such majority determines, in good faith that (i) such recusal is reasonably necessary, in the opinion of counsel to the Company, to preserve such attorney-client privilege and not with respect to any other portion thereof; or a material matter, (ii) there exists, with respect to any deliberation or Board materials, an actual or potential conflict of interest between the Investor who has appointed such portion of a meeting is an executive session limited solely to independent director members Observer and the Company or (iii) the presence of the BoardObserver would otherwise be materially injurious to the Company in such circumstances; provided, independent auditors and/or legal counselfurther, as that such Investor’s right to appoint an Observer to the Board may designate, and Observer (assuming Observer were a member shall automatically expire upon the effectiveness of the Board) would not meet the then-applicable standards registration statement for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) Qualified Public Offering. Any Observer will be subject to the confidentiality provisions set forth in Section 2.6. The Company Observer shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash receive no compensation may be modified from time to time. Further, the Company for service as an Observer and shall reimburse Observer not be reimbursed for all reasonable out-of-pocket any expenses incurred by the Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that of any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members meeting of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Investor Rights Agreement (Cadence Pharmaceuticals Inc)
Board Observer Rights. (a) The Company agrees that it will invite Observer Subject to attendthe terms and conditions set forth herein, the Lateral Entities (collectively) shall have the right to send one non-voting representative on their behalf (an “Observer”) to attend all meetings of the Board of Directors of Holdings, including all committees thereof and any meeting, whether formal or informal, where a quorum of the Board of Directors or of any committee is present, solely in a non-voting observer capacity, all meetings .
(b) Each of Holdings and the Board and any and all Committees for the purposes of permitting Observer to have current information with respect Borrower will furnish to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, board package materials and all other materials or information (financial or otherwise) that it generally makes available to its Board of Directors as and when such materials are provided to its Board of Directors. The Observer may participate in discussions of matters under consideration by the directors with respect Board of Directors and any matters brought before any committee thereof, but will not be entitled to a meeting or vote on any written consent in lieu of meeting (except matter presented to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting Board of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumDirectors; provided, however, that it a majority of the Board shall be have the right, after deliberation in a material breach closed session in which they can exclude the Observer, to exclude the Observer from portions of this Agreement by Observer meetings of the Board of Directors or any committee thereof or omit to provide the Observer with certain information to the extent that a majority of the members of the Board of Directors believe in good faith after consultation with counsel that such exclusion or omission is necessary in order to preserve any attorney-client privilege, attorney-work product privilege or other person access to similar legal privileges or such meeting without attendance or distribution of materials is otherwise prohibited by applicable law or would be restricted by section 2(c) of the Company’s express prior written consent (which consent may be by e-mail)Investor Rights Agreement.
(c) Notwithstanding The Lateral Entities shall have the foregoing, the Company may exclude right to remove and replace their Observer from access in their sole discretion and to designate a substitute representative at any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedtime.
(d) The Company Holdings shall compensate reimburse the Observer for any reasonable expenses or charges incurred by such Observer in the same amount performance of all cash retainers, meeting fees and any other cash fees its duties as if an Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described hereunder solely in the Merger Agreement; (ii) any material violation of event the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation Independent Director is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability an employee of Observera Lateral Entity.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such CommitteesBoard; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock ExchangeNASDAQ Capital Market, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end occurrence of the Observer Period, a Termination Event as described defined in the Merger Nomination Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Board Observer and Director Nomination Agreement (Marker Therapeutics, Inc.)
Board Observer Rights. (a) The Company agrees that So long as Commodore, together with its Affiliates, own no less than five percent (5%) of the number of then outstanding shares of the Company’s Common Stock, for the avoidance of doubt, assuming full conversion of Commodore’s Preferred Shares and full exercise of Commodore’s Warrants (without regard to any limitations on conversion or exercise hereof), it will invite Observer shall have the right, but not the obligation, to attend, in a designate one (1) non-voting observer capacity, (the “Commodore Observer”) to attend all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except committee thereof as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer; provided, Observer that the Board will also be provided (concurrently with delivery to give such individual notice of such meetings at the directors of the Company same time and in the same manner delivery is made as notice to them) copies the members of all noticesthe Board, minutes, consents, and all other that the Commodore Observer shall be entitled to concurrent receipt of any materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g.committee thereof, videoconference), Observer may attend such meeting via the same medium; provided, however, that it the Commodore Observer shall be a material breach of this Agreement by Observer agree to provide hold in confidence and trust all information so provided; provided further, however, that the Board reserves the right to withhold any other person access materials and to such meeting without exclude the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Commodore Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faithif access to such materials or attendance at such meeting could constitute a conflict of interest, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and such counsel; providedits counsel or result in disclosure of trade secrets.
(b) So long as TCGX, howevertogether with its Affiliates, that any such exclusion shall apply only to such portion own no less than five percent (5%) of the material or such portion number of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion then outstanding shares of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
Common Stock, for the avoidance of doubt, assuming full conversion of the TCGX’s Preferred Shares and full exercise of the TCGX’s Warrants (dwithout regard to any limitations on conversion or exercise hereof), it shall have the right, but not the obligation, to designate one (1) The Company shall compensate Observer in non-voting observer (the same amount of “TCGX Observer”) to attend all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member meetings of the Board and any committee thereof as a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable outnon-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effectvoting observer; provided, however, that any the Board will give such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid individual notice of such meetings at the same time and in the same manner as notice to the members of the Board.
(e) The rights described in this Section 1 , that the TCGX Observer shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after be entitled to concurrent receipt of notice any materials provided to the Board or any committee thereof, provided, however, that the TCGX Observer shall agree to hold in confidence and trust all information so provided; provided further, however, that the Board reserves the right to withhold any materials and to exclude the TCGX Observer from any meeting or (B) portion thereof if access to such violation is not subject to curematerials or attendance at such meeting could constitute a conflict of interest, directly causes harm to adversely affect the attorney-client privilege between the Company and its counsel or result in the Board’s sole and absolute discretion; or (iii) the death or disability disclosure of Observertrade secrets.
Appears in 1 contract
Samples: Securities Purchase Agreement (Avalo Therapeutics, Inc.)
Board Observer Rights. 4.1 Beginning on the Effective Date and ending on the date that this Agreement terminates, Bridger hereby grants to each of MAM-MAB Member, LLC, a Delaware limited liability company (athe “Marathon Member”) The Company agrees that it will invite Observer and Avenue Sustainable Solutions Fund, L.P., a Delaware limited partnership, (the “Avenue Member”), the option and right to attendappoint a single representative (each, in a non-voting observer capacity“Board Observer” and together, the “Board Observers”), to attend all meetings (including, without limitation, telephonic meetings) of the full board of directors of Bridger (the “Board”) and any committee thereof (each, a “Committee”). The Board Observers shall not constitute members of the Board and shall not be entitled to vote on, or consent to, any and all Committees for the purposes of permitting Observer to have current information with respect matters presented to the affairs Board. The Board Observers shall be provided access to all materials and information provided on the same terms and in the same manner as provided to the other members of the Company and Board or the actions taken by the applicable Committee. The Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Observers shall have the right to be heard request to attend the executive sessions of the Board in connection with meetings the Board Observers otherwise have a right to attend, subject to approval by the Board.
4.2 Bridger shall (a) give the Board Observers notice of the applicable meeting or any proposed action taken by written consent at the same time and in the same manner as notice is given to the members of the Board or the applicable Committee, (b) provide the Board Observers with access to all materials and other information (including, without limitation, access to minutes of meetings or written consents of the full Board and any Committee) given to the members of the Board and the applicable Committee in connection with such meetingmeetings or actions taken by written consent at the same time and in the same manner such materials and information are furnished to such members of the Board or such Committee, but and (c) provide the Board Observers with all rights to attend (whether in no event shall person or by telephone or other means of electronic communication as solely determined by the applicable Board Observer: (i) be deemed to be such meetings as a member of the Board and each Committee. As promptly as practicable following the date hereof, Bridger, on the one hand, and each Board Observer, on the other hand, shall negotiate in good faith a board observer agreement containing indemnification provisions in favor of such Board Observer and confidentiality provisions in form and substance customary for transactions of this type.
4.3 Notwithstanding any rights to be granted or such Committees; (ii) have provided to the Board Observers hereunder, Xxxxxxx reserves the right to vote on any matter under consideration by exclude the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer Observers from access to any material or meeting or portion thereof if: (i) if the Board concludes reasonably determines, in good faith, upon advice that such access would prevent the members of the Company’s counsel, that such exclusion is reasonably necessary to preserve the Board from engaging in attorney-client privilege between the Company and such counselprivileged communication; provided, however, that any such exclusion shall apply only be limited to such the portion of the material or and/or meeting that is the basis for such exclusion and shall not extend to any portion of the material and/or meeting which would be required that does not involve or pertain to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedexclusion.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Services Agreement (Bridger Aerospace Group Holdings, Inc.)
Board Observer Rights. So long as the Purchaser or its Affiliates holds at least 50% of the Shares issued at the Closing (aappropriately adjusted for stock splits, stock dividends, stock combinations, and similar events occurring after the date hereof), the Company will permit a representative of the Purchaser (the “Observer”) The Company agrees that it will invite Observer to attendattend all meetings of the Company’s Board of Directors, whether in person, via telephone, or otherwise, in a non-voting voting, observer capacitycapacity and shall provide to the Observer, all meetings concurrently with the members of the Board and in the same manner, notice of such meeting and a copy of all materials provided to such members. A majority of the members of the Board of Directors of the Company shall be entitled to recuse the Observer from portions of any meeting of the Board of Directors and all Committees for the purposes Chairman of permitting the Board shall be entitled to redact portions of any materials delivered to the Observer where and to have current information the extent that such majority or the Chairman determines, in good faith that (a) such recusal is reasonably necessary, in the opinion of counsel to the Company, to preserve attorney-client privilege with respect to any matter, or (b) there exists, with respect to any deliberation or Board materials, a conflict of interest between the Purchaser and the Company; provided that any redactions approved the Chairman must be ratified and confirmed by a majority of the members of the Board of Directors of the Company not later than the date of the meeting at which such materials are presented. In the event the majority of the members of the Board of Directors of the Company do not so ratify and confirm the redactions, the redacted material shall be immediately provided to the Observer. The Observer shall be bound by confidentiality obligations with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) its business to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to same extent as are the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it Purchaser shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of enter into a meeting is an executive session limited solely to independent director members of confidentiality agreement in substantially the Board, independent auditors and/or legal counsel, form attached hereto as the Board Annex 5.3 covering all persons who may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse time serve as an Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to under this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board5.3.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. 1.4.1 On or before the initial filing date of the IPO Registration Statement, the CCS Group Director shall resign from his position on the Board of Directors. The Campuslink Stockholders shall have the right, effective upon such resignation, to appoint one representative (athe “Representative”) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings attend each meeting of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except Directors as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also whether such meeting is conducted in person or by videoconference or teleconference. Subject to the confidentiality provisions of this Section 1.4.1, the Company shall cause the Representative to be provided (concurrently with delivery all communications and materials that are provided by the Company to the directors Board of Directors generally, including all notices, board packages, reports, presentations, minutes and consents, at substantially the Company same time and in substantially the same manner delivery is made that such communications and materials are provided by the Company to them) such members. Notwithstanding any other provision of this Section 1.4.1 to the contrary, the Board of Directors shall have the right to keep confidential from the Representative for such period of time as the Board of Directors deems reasonable any information and copies of all noticeswritten materials the Company is required by law to keep confidential. As a condition of the exercise of the Representative’s rights under this Section 1.4.1, minutes, consents, and all other materials the Representative shall enter into such agreements or undertakings with the Company as the Company may reasonably request to maintain the confidentiality of information (financial or otherwise) that are provided to the directors Representative in connection with respect the exercise of such rights. The Campuslink Stockholders hereby appoint Xxxxx Xxxxxxxx to a meeting or any written consent in lieu of meeting (except to serve as the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of initial Representative. Concurrently, with the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach execution and delivery of this Agreement by Observer the Company and the Campuslink Stockholders, Xx. Xxxxxxxx has delivered to provide any the Company a duly executed counterpart of this Agreement and, in so doing, has become a party to this Agreement solely for the purpose of (i) agreeing to be bound by this Section 1.4.1, Section 1.4.2 and Section 1.4.3 and (ii) providing all consents and approvals required to be given by the CCS Group Directors pursuant to Section 5.1 of the Campuslink Stockholders’ Agreement with respect to (x) the Transactions and (y) the other person access instruments, documents or actions reasonably required to evidence or effectuate the consummation of the Transactions or otherwise to carry out the intent of the parties under this Agreement.
1.4.2 Unless this Agreement is earlier terminated pursuant to Section 8.1, the right of the Campuslink Stockholders to appoint a Representative pursuant to Section 1.4.1 shall automatically terminate immediately prior to the time that the Company shall have entered into the IPO Purchase Agreement. At no time prior to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: termination shall (i) the Campuslink Stockholders exercise their right under the Campuslink Stockholders’ Agreement to designate a CCS Group Director for appointment to the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; Directors or (ii) such portion of a meeting is an executive session limited solely any Person have the right to independent director members approve any transaction pursuant to Section 5.1 of the Board, independent auditors and/or legal counsel, as Campuslink Stockholders’ Agreement.
1.4.3 The Representative appointed and serving pursuant to Section 1.4.1 shall have the Board may designate, and Observer right to approve any transaction which the CCS Group Directors would (assuming Observer were a member but for the provisions of this Agreement) have the right to approve after the date hereof pursuant to Section 5.1 of the Board) would Campuslink Stockholders’ Agreement, provided that the Representative shall not meet have any right to approve any of the then-applicable standards for independence adopted matters approved or consented to pursuant to Section 1.3 of this Agreement. Approval by the New York Stock Exchange, or such other exchange on Representative of any transaction which the Representative shall have the right to approve pursuant to the first sentence of this Section 1.4.3 shall be evidenced by a writing delivered to the Company’s securities are then traded.
(d) The Company shall compensate Observer in . Unless this Agreement is earlier terminated pursuant to Section 8.1, the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member approval right of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company Representative pursuant to this Section 1(d) 1.4.3 shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid automatically terminate immediately prior to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to time that the Company in shall have entered into the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverIPO Purchase Agreement.
Appears in 1 contract
Board Observer Rights. (a) The Pursuant to Section 2.1(a) of the Investor Rights Agreement by and between the Company agrees that it will and the Investor dated as of June 24, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Investor Rights Agreement”), the Company shall cause one person designated by the Investor to be appointed as a non-voting observer to the Board and the Committees. On the date hereof, the Investor designates Xxxxxx Xxxxx-Xxxxxx as the Observer. Except as set forth herein, the Company shall invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting (as determined by Observer from time to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”time). Except as set forth herein, Observer shall have the right to be heard at participate in any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committeesany Committee; (ii) have the right to vote on any matter under consideration by the Board or such Committees any Committee or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (duties, fiduciary or otherwise) , to the Company or its stockholders or any duties (duties, fiduciary or otherwise) , otherwise applicable to the directors of the Company; or (iv) have any right or possess any authority to bind the Company or any of its subsidiaries in any way whatsoever. As a non-voting observer, and except as set forth herein, Observer will also be provided (provided, concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) , copies of all notices, agenda, minutes, consents, and all other materials or information (information, financial or otherwise) , that are provided to the directors directors, including with respect to a any Board or Committee meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) a Board or Committee meeting. If a meeting of the Board or any of the Committees a Committee is conducted via telephone or other electronic medium (e.g.medium, videoconference)except as set forth herein, Observer may attend such meeting via the same medium; provided, however, that it . The presence of Observer shall not be taken into account or required for purposes of establishing a material breach of quorum. Notwithstanding anything in this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingcontrary, the Company Board or any Committee may exclude the Observer from access to all or any material or portion of any meeting or portion thereof if: discussions, and can withhold or redact materials otherwise distributed to the members of the Board or such Committee, solely to the extent that (i) the Board concludes in good faith, upon reasonably determines based on the advice of the Company’s counsel, counsel that such exclusion action is reasonably necessary to preserve prevent the loss of attorney-client privilege between the Company and privilege, work product or similar privilege; provided that, in such counsel; providedcase, however, that (x) any such exclusion shall only apply only to such portion of the such meeting or material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; and (y) Observer shall be informed of the general subject matter of the materials or meetings (or portion thereof) from which Observer is excluded to the extent it would not result in the loss of such privilege, or (ii) the Board reasonably determines in good faith that the information being discussed at all or a portion of such meetings or included in such materials, (A) would give rise to a conflict of interest or otherwise relates to any actual or potential transactions between or involving the Company or its affiliates, on the one hand, and the Investor Parties, the Observer or an Affiliate of the Investor Parties or the Observer, on the other hand, (B) would result in a breach of the Company’s confidentiality obligations to any third party or (C) would result in a violation of applicable laws; provided that, in any such case, (x) any such exclusion shall only apply to such portion of a such meeting is an executive session limited solely or material which would be required to independent director members avoid such conflict, breach of confidentiality or violation of applicable laws, and not to any other portion thereof; and (y) Observer shall be informed of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member general subject matter of the Boardmaterials or meetings (or portion thereof) from which Observer is excluded to the extent it would not meet the then-result in a potential breach of such confidentiality obligations to any third party or result in a violation of applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedlaws.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(eb) The rights described in this Section 1 shall terminate with respect to such Observer upon: (i) such time as the end Investor no longer has the right to appoint an Observer pursuant to Section 2.1(a) of the Observer Period, as described in the Merger Investor Rights Agreement; (ii) written notice of termination to the Company from the Investor; (iii) any material violation of the terms of this Agreement by Observer Investor which (A) remains uncured within ten business days after receipt of notice thereofthereof (which notice must be delivered to the Investor by the Company in accordance with Section 11), or (B) if such violation is not subject to cure, directly causes may reasonably lead to material harm to the Company in the Board’s sole and absolute discretionCompany; or (iiiiv) the death or disability of Observer, provided that upon the occurrence of any event described in the foregoing clause (iv), the Investor shall have the right to appoint a replacement Observer and such replacement Observer shall have the rights described in this Section 1. For the avoidance of doubt, the provisions of this Section 1(b) (including any potential termination of rights thereunder) shall not affect, or be construed as affecting, the rights or obligations of the Investor or the Company under the Investor Rights Agreement or the Note Purchase Agreement by and among the Company, the Investor and DriveTrain dated as of June 24, 2022 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Purchase Agreement”).
Appears in 1 contract
Board Observer Rights. For so long as any EM Party (aor any Affiliate thereof) The Company agrees that it will invite Observer has the right to attendappoint a member to the Board pursuant to the Certificate of Designations of the Series C Preferred Stock, EM Renewables shall be entitled, in a non-voting addition to its rights under the Certificate of Designations, to designate one board observer capacity, all (the “Board Observer”) to the Company’s Board that is reasonably acceptable to the Company. EM Renewables shall be entitled to change the Board Observer with another designee of its choice at any time upon prior written notice to the Company. The Board Observer shall be entitled to attend and participate in meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meetingBoard, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to takeand, or not to take, any action; or (iii) except as expressly set forth in this Agreementrespect, have or shall be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) given copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are the Company provides to its directors at the same time and in the same manner as provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of such directors, but the Board or Observer shall not be entitled to vote on any matter and shall not be considered for purposes of establishing the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumpresence of a quorum; provided, however, provided that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude the Board Observer from access to any material material, notices, minutes or consents or meeting or portion thereof if: (i) if the Board concludes determines in good faith, upon advice of the Company’s counsel, faith that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; providedprivilege, however, that to prevent disclosure of any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchangetrade secret, or such other exchange on in circumstances in which the Company’s securities are then traded.
(d) The Company shall compensate a director designated by an EM Party has been recused from a Board meeting. Any Board Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company designated pursuant to this Section 1(d) 5.1 shall be paid enter into a confidentiality agreement on terms reasonably acceptable to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided. For the avoidance of doubt, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described nothing in this Section 1 5.1 shall terminate upon: (i) prohibit the end Board or any committee of the Observer Period, as described in the Merger Agreement; (ii) Board from taking any material violation action proposed to be taken at any meeting of the terms Board or committee or by written consent in lieu of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observera formal meeting.
Appears in 1 contract
Samples: Transaction Agreement (Global Clean Energy Holdings, Inc.)
Board Observer Rights. During the period beginning on the date of this Agreement and ending on the later of such time as (ai) The Company agrees that it will invite Observer to attendthe Loans have been repaid in full, and (ii) the Investors Beneficially Own, in the aggregate, a non-voting observer capacitynumber of Warrants, Common Shares and Common Partnership Units, in each case solely to the extent issued in connection with the payment of the Exit Fee, representing (or convertible, exchangeable, redeemable or exerciseable into) less than fifteen percent (15%) of the total number of Common Shares of the Company on a fully diluted basis, the Investors shall have the right to appoint two (2) observers (the “Observers”) designated by Oaktree to the Board of Directors of the Company (the “Board”) who shall be entitled to attend all meetings of the Board and any to receive all notices, communications, documents and all Committees for the purposes of permitting Observer to have current other information with respect given to the affairs Board. Each Observer shall be subject to the policies and requirements of the Company and the actions taken by Board, including the Board Company’s Corporate Governance Guidelines and Observer the Company’s Code of Business Conduct and Ethics. Notwithstanding anything to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have contrary, the Board, acting in good faith, reserves the right to be heard withhold any information and to exclude the Observers from any meeting or portion thereof if access to such information or attendance at any such meeting, but meeting (x) in no event shall Observer: (i) be deemed to be a member the good faith discretion of the Board Board, would create a conflict of interest with Oaktree or such Committees; (ii) have would result in a breach of any agreement to which the right to vote on any matter under consideration by the Board or such Committees Company is a party or otherwise have any power to cause the Company to take, or not to take, any action; or bound (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it in no event shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access or any of its Affiliates enter into, or amend, supplement or otherwise modify, any agreement or arrangement with any Person providing management or advisory services to the Company or any material of its Affiliates that would prohibit, limit or meeting or portion thereof if: (i) restrict the Board concludes in good faith, upon advice ability of the Company’s counselObservers to access such information or attend such meetings), that such exclusion is reasonably necessary to preserve or (y) would result in a waiver of the attorney-client privilege between the Company and its counsel. The Observers shall not have any voting or consent rights with respect to any action brought before the Board. The Observers may resign in the same manner as directors as set forth in the Company’s Charter and Bylaws or may be removed by Oaktree, acting in its sole discretion, at any time. Upon the resignation, removal, death or disability of any Observer, to the extent the Investors have the right to appoint Observers to the Board in accordance with the first sentence of this Section 2.1 the Investors shall have the right to replace such counsel; providedObserver with a new Observer designated by Oaktree, however, that any such exclusion which replacement will also be subject to the requirements of this Section 2.1. No appointment of a particular Observer shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of if the BoardBoard reasonably determines in good faith, independent auditors and/or after consultation with outside legal counsel, that such Observer has been involved in any of the events enumerated in Items 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Exchange Act or is subject to any order, decree or judgment of any governmental authority prohibiting service as a director of any public company, in which case Oaktree shall withdraw the designation of such Observer and shall designate another individual as an Observer, which replacement will also be subject to the requirements of this Section 2.1. In the event that any Observer is not an employee of OCM, any of its Affilaites or any entities or funds managed by OCM, the appointment of such Observer shall be subject to the consent of the Board (such consent not to be unreasonably withheld, conditioned or delayed). Oaktree will take all necessary action to cause any Observer to consent to such reference and background checks and to provide such information as the Board may designatereasonably request. As of the date of this Agreement, Oaktree has designated Bxxxx Xxxxxx and Txxxx Xxx as the initial Observers, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by has determined that such Observers satisfy the Company pursuant to requirements of this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board2.1.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. If the Investor is not represented on the Board or the Bank Board (aas applicable) The (including during such time as regulatory approval of the person nominated by the Investor as its Board or Bank Board representative is pending), for as long as the Investor and its Affiliates beneficially own more than 50.0% of the Company’s common stock it acquired pursuant to the Subscription Agreement, the Company agrees that it will invite Observer and the Bank shall allow the Investor to attendonly designate either Xxxxx Xxxxxxxxx, Xxx Xxxxx or Xxxxxxx Xxxxxxx to be a representative of the Investor to attend all meetings of the Board and Bank Board (and their respective committees) in a non-voting observer capacitycapacity and, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreementrespect, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) shall give such representative copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that are it provides to its directors at the same time and in the same manner as provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumdirectors; provided, however, that it (i) such representative shall be enter into a material breach of this Agreement by Observer customary confidentiality agreement with the Company and the Bank (in form and substance reasonably satisfactory to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingInvestor, the Company and the Bank) requiring the representative to hold in confidence and trust all information so provided; (ii) the representative may exclude Observer be excluded from access to any material or meeting or portion thereof if: (i) if the Board concludes or Bank Board (as applicable) determines in good faith, upon advice of the Company’s counsel, that access to such exclusion is reasonably necessary to preserve material or attendance at such meeting would adversely affect the attorney-client privilege between the Company or the Bank and its counsel or would conflict with applicable banking laws or regulations or if such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion meeting relates to relations or negotiations with the Investor or require the consent or non-objection of the meeting which would be required to preserve such privilege and not to any other portion thereofRegulator; or (iiiii) such portion of a meeting is an observer shall be excluded from all “executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member sessions” of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Bank Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that if any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the other persons who are not members of the Board.
Board or Bank Board (eas applicable), other than counsel to the Company, are also excluded; and (iv) The rights described in this Section 1 such observer shall terminate upon: (i) the end not be entitled to attend any meetings of any committees of the Observer Period, as described in the Merger Agreement; (ii) any material violation Board or Bank Board on which a representative of the terms Investor serving on such board would not be entitled to serve. For the avoidance of this Agreement by Observer which doubt, such representative shall not have access to any “confidential supervisory information” (A) remains uncured within ten business days after receipt as such term or relevant similar term is defined under the regulations of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observerany Regulator).
Appears in 1 contract
Board Observer Rights. (a) The Beginning on the date hereof until the date of exercise of the option in accordance with the terms of the Option and Collaboration Agreement or the expiration of the option period as set forth therein (the “Observer Period”), the Company agrees that it will invite Observer one representative designated by the Purchaser (the “Observer”) to attend, in a non-voting observer capacity, all formal meetings of the Board and any and all Committees of Directors in which a quorum is present for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto of Directors (the “Approved Purposes”); provided that such Observer designated by the Purchaser is subject to the Company’s approval (which approval shall not be unreasonably withheld). Observer shall have the right to be heard at any such meeting, but in In no event shall Observer: (i) be deemed to be a member of the Board or such Committeesof Directors; (ii) have the right to vote on any matter under consideration by the Board or such Committees of Directors or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this AgreementSection 5.1, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (cd) below).
(bc) If a meeting of the Board or any of the Committees Directors is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it Observer shall be a material breach of this Agreement by Observer to not provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(cd) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board of Directors concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counselcounselor or if the Company in good faith believes that the Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the BoardBoard of Directors, independent auditors and/or legal counsel, as the Board of Directors may designate, and Observer (assuming Observer were a member of the BoardBoard of Directors) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(de) The Observer shall not receive compensation from the Company shall compensate Observer in for the same amount performance of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. FurtherObserver; however, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee of Directors meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d5.1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(ef) The rights described in this Section 1 5.1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement Section 5.1 by Observer which that (A) remains uncured within ten (10) business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes material harm to the Company in the Board’s Board of Directors’ sole and absolute discretion.
(g) In consideration of the Company’s disclosure to Observer of information that is not publicly available concerning the Company for the Approved Purposes, Purchaser agrees that this Section 5.1 will apply to all information, in any form whatsoever, disclosed or made available to Observer concerning the Company, its affiliates and/or the Approved Purposes (“Confidential Information”).
(h) Except as otherwise provided herein, Purchaser agrees: (i) to hold Confidential Information in strict confidence; (ii) not to disclose Confidential Information to any third parties; and (iii) not to use any Confidential Information for any purpose except for the Approved Purposes. Observer may disclose the Confidential Information to its responsible agents, advisors, affiliates and representatives with a bona fide need to know (“Representatives”), but only to the extent necessary for the Approved Purposes. Purchaser agrees that Observer shall instruct all such Representatives not to disclose such Confidential Information to third parties without the prior written permission of the Company. Purchaser will, at all times, remain liable under the terms of this Agreement for any unauthorized disclosure or use by Observer or any Representatives of Confidential Information provided to such Representatives by Observer.
(i) The foregoing restriction on the use and nondisclosure of Confidential Information will not include information which, as evidenced by written documentation: (i) is, or hereafter becomes, through no act or failure to act on the part of Observer, generally known or available to the public; (ii) was acquired by Observer before receiving such information from the Company, without restriction as to use or disclosure; (iii) is hereafter furnished to Observer by a third party, without, to Observer’s knowledge, restriction as to use or disclosure; (iv) such information was independently developed by Observer; or (iiiv) is required or requested to be disclosed pursuant to judicial, regulatory or administrative process or court order, provided, that to the death extent permitted by law, rule or disability regulation and reasonably practicable under the circumstances, Observer gives the Company prompt notice of such required disclosure so that the Company may challenge the same
(j) Following the termination of the rights of Observer described in this Section 5.1 and upon request of the Company, Observer will promptly: (i) return to the Company all physical materials containing or consisting of Confidential Information and all hard copies thereof; and (ii) destroy all electronically stored Confidential Information in Observer’s possession or control. Observer may retain in his confidential files one copy of any item of Confidential Information in order to comply with any legal, compliance or regulatory requirements. Any Confidential Information that is not returned or destroyed, including, without limitation, any oral Confidential Information, and all notes, analyses, compilations, studies or other documents prepared by or for the benefit of Observer from such information, will remain subject to the confidentiality obligations set forth in this Agreement indefinitely.
(k) All Confidential Information is provided to Observer “as is” and the Company does not make any representation or warranty as to the accuracy or completeness of the Confidential Information or any component thereof. The Company will have no liability to Observer resulting from the reliance on the Confidential Information by Observer or any third party to whom such Confidential Information is disclosed.
(l) Purchaser acknowledges that all of the Confidential Information is owned solely by the Company (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain. Therefore, in the event of any breach of this Agreement, the Company is entitled to seek all forms of equitable relief (including an injunction and order for specific performance), in addition to all other remedies available at law or in equity.
(m) Purchaser agrees that the Confidential Information is given in confidence in accordance with the terms of this Agreement, and Purchaser and Observer will not take any action relating to the securities of the Company which would constitute xxxxxxx xxxxxxx, market manipulation, or any other violation of applicable securities law. Observer agrees to instruct all of its Representatives to whom it discloses Confidential Information that they may not take any action relating to the securities of the Company which would constitute xxxxxxx xxxxxxx, market manipulation, or any other violation of applicable securities law.
(n) Prior to the designation of any Observer, Purchaser agrees to cause Observer to execute and deliver to the Company a written acknowledgement of such Observer’s obligations under this Section 5.1.
Appears in 1 contract
Samples: Securities Purchase Agreement (Cancer Prevention Pharmaceuticals, Inc.)
Board Observer Rights. (a) The Provided Observer and his Affiliates have complied with all of their obligations under this Agreement, the Company agrees that for a period of eight months from the date of this Agreement (“Observation Period”) it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees meetings of each Committee for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board or a Committee and for the Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committeeseither Committee; (ii) have the right to vote on any matter under consideration by the Board or such Committees either Committee or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner as delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees a Committee is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, or upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such any counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members directors of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate uponupon : (i) the end of the Observer Period, Observation Period as described in the Merger AgreementSection 1(a) above; (ii) notice by the Company to Observer of such termination following any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten three business days after receipt by Observer of notice thereof, thereof or (B) if such violation is not subject to cure, or directly causes harm to the Company in the Board’s sole and absolute discretiondiscretion as reasonably determined by the Board; or (iii) the death or disability of Observer; (iv) the occurrence of any event which would cause the Observer to be removed if he was a director of the Company for Cause, as defined in Section 9(a)(v), or (v) the appointment of Observer as a director pursuant to Section 9; or (vi) the termination of this Agreement by Observer pursuant to Section 8.
Appears in 1 contract
Samples: Board Observer Agreement (Innovative Food Holdings Inc)
Board Observer Rights. (a) The Company agrees that it will invite Observer hereby invites any Purchaser, excluding Xxxxxx, who has purchased Securities in an amount equal to attend, or greater than $1,800,000 under the terms of this Agreement to select one representative reasonably acceptable to the Company (each a “Representative”) to attend in a non-voting nonvoting observer capacity, all capacity meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumDirectors; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may reserves the right to exclude Observer the Representative from access to any material or meeting or portion thereof if: if (i) the Board concludes in good faith, Company believes upon advice of the Company’s counsel, counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only (ii) access to such portion information or attendance at such meeting could create a conflict of interest between any of the material Purchasers or such portion of the meeting which would be required to preserve such privilege Representative, on the one hand, and not to any the Company, on the other portion thereof; hand, or (iiiii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or Board of Directors and legal counsel, as the Board may designate, . In addition and Observer (assuming Observer were a member of the Board) would not meet the thenupon 30-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Furtherday notice, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company may terminate rights granted to any Purchaser pursuant to this Section 1(d4.19. Any Purchaser eligible to select a Representative agrees that (a) such Representative shall be paid agree in writing to Observer hold in accordance with the Company’s policies confidence and practices trust and to act in a fiduciary manner with respect to director compensation all information provided to the Representative, except to the extent such information in the public domain at the time it is first provided to the Representative, or is subsequently released into the public domain (through no fault of the Representative), or otherwise required by law and expense reimbursement then any other regulatory process to which the Representative is subject, (b) such Representative shall acknowledge and agree that during the period in effect; providedwhich the Representative has board observation rights under this Section 4.19, however, that any such compensation or reimbursement the Representative shall be paid to Observer no later than comparable compensation subject to, and shall be deemed a “covered person” under, any xxxxxxx xxxxxxx policy now or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement hereafter adopted by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in and any code of ethics and business conduct now or hereafter adopted by the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverCompany.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attendUpon the occurrence of an Event of Default and for so long as such Event of Default continues, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Required Noteholders collectively shall have the right to appoint one observer to the board of directors (or similar governing body) of each Credit Party and all committees of any of the foregoing boards (the “Observer”), which Observer shall be heard appointed by the Required Noteholders. Such Observer shall be entitled, subject to applicable law and regulation (a) to receive the same notice and other materials in respect of all meetings (both regular and special) (or written consents) of the applicable board of directors as are furnished to members of such board, at the same time as the same are furnished to such members, together with an agenda for any such meetingmeetings, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwiseb) to the Company attend all meetings (and review all written consents) of any such board and (c) to participate in all discussions conducted at meetings (or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or actions to be taken by written consent) of any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumboard; provided, however, that it such Observer shall not constitute a member of such board and shall not be a material breach of this Agreement by Observer entitled to provide vote on any other person access matters presented to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingboard; provided, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counselfurther, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would Observer may be required to preserve such privilege and leave, or not be allowed to attend, any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal (or may not receive certain materials) if such board reasonably believes after consultation with counsel, as the Board that a conflict of interest or an attorney client privilege arises or may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer arise in connection with the issues being discussed (or described in such materials).If requested by a Credit Party, the Observer shall execute a reasonable and customary confidentiality agreement prior to attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any meetings of such board or receipt of any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardmaterials.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Novation Companies, Inc.)
Board Observer Rights. For so long as the GSK Investor or its Affiliates own at least 50% of the Shares set forth opposite the GSK Investor’s name on Exhibit A hereto, the GSK Investor may from time to time by written notice to the Company designate one (a1) The Company agrees that it will invite Observer to attend, in person as a non-voting observer capacity, to attend all meetings of the Board of Directors of the Company (the “Observer”), which Observer may be removed and replaced at any time by the GSK Investor. During any period in which the GSK Investor has so designated an Observer, the Company shall: (a) provide the Observer notice of all regular meetings and all Committees for special meetings of the purposes Board of permitting Observer Directors in the same manner and at the same time notice is provided to have current information members of the Board of Directors provided that the GSK Investor acknowledges that special meetings of the Board of Directors may be held with respect short notice from time to time depending on the affairs needs of the Company and the actions taken unavailability of the Observer to attend any such meetings shall not affect the scheduling and/or proceeding of any such special meeting of the Board of Directors; (b) permit the Observer to attend such meetings as an observer (either in person or by telephone, as applicable, and with respect to in person meetings, upon request by the Observer, by telephone) provided that the Observer may be required by the Board and Observer of Directors to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If temporarily leave a meeting of the Board of Directors (i) if the presence of the Observer at such time would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege with respect to matters discussed before the Board of Directors at such time or (ii) if matters will be discussed or decided relating to transactions in which the GSK Investor or any of Affiliate thereof or the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be has a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
direct or indirect interest; and (c) Notwithstanding provide to the foregoingObserver a copy of all materials made available by the Company to the Board of Directors prior to or at such meetings or otherwise (provided that to the extent that the Company determines that the GSK Investor, its Affiliates or the Observer have a conflict of interest with respect to the subject matter of any such materials or such provision would reasonably be expected to prevent the Company from asserting the attorney-client or attorney work product privilege, the Company may exclude Observer redact such information from access to any material or meeting or portion thereof if: (ithe materials) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection contemporaneously with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid delivery to the members of the Board.
(e) Board of Directors, as applicable. The GSK Investor acknowledges and agrees that upon exercise of its rights described in under this Section 1 shall terminate upon: (i) 6.7, the end GSK Investor may receive material non-public “inside information” of the Company or its Subsidiaries provided to the Observer Period, either at any meeting of the Board of Directors that the Observer attends or furnished to the Observer pursuant to this Section 6.7 as described in material distributed to the Merger Agreement; (ii) members of the Board of Directors. The GSK Investor hereby agrees to comply with all applicable securities Laws with respect to any material violation non-public information obtained by the Observer pursuant to the rights granted to the GSK Investor under this Section 6.7. The right of the terms of GSK Investor to designate an Observer under this Agreement Section 6.7 shall not in any way be limited, restricted or prohibited by the fact that an Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to appointed as of the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observerdate hereof.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock ExchangeNasdaq, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash and non-cash retainers, meeting fees and any other cash and non-cash fees (including, without limitation, equity and equity incentive awards) as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetingsmeetings or any other matter which the Company requests Observer to undertake on behalf of the Company (it being understood that Observer shall be under no obligation to undertake any matter other than as set forth in Section 1(a) hereof unless Observer expressly agrees thereto in his sole discretion). All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end termination of the Observer Period, as described in the Merger Agreementprovided below; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer. The Observer Period shall be for a period of one year from the date hereof, and shall automatically renew for successive periods of one year unless the Company shall provide written notice to the Observer, not less than 30 days prior to any such renewal period, of its determination not to renew the Observer Period. The Observer may terminate the Observer Period at any time by written notice to the Company.
Appears in 1 contract
Samples: Board Observer and Indemnification Agreement (Purple Innovation, Inc.)
Board Observer Rights. Subject to, for the avoidance of doubt, Section 7(a)(ii)(7), following the Closing and at all times prior to the exercise of the Option, for so long as, subject to Section 7(b)(iv), (ai) The Company agrees the Securities held by a Purchaser (assuming exercise of all of Purchaser’s Option) represent at least six percent of the outstanding Common Stock of the Company, calculated on a fully diluted basis using the treasury method of accounting, or (ii) the Initial Purchaser or any Permitted Transferee of Initial Purchaser’s whole Option has not Transferred all or any portion of the Securities to any Person that it will invite Observer is not a Permitted Transferee, Initial Purchaser, or such Permitted Transferee of Initial Purchaser’s whole Option, as applicable, shall have the right to attenddesignate one observer to the Board of Directors, in so long as such observer is not an employee or a non-voting independent director of Initial Purchaser or any of its subsidiaries. Such observer’s attendance shall be limited, in their nonvoting observer capacity, to all meetings of the Board of Directors, excluding all executive sessions and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member committee meetings of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the CompanyDirectors. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) Such observer shall receive copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that are provided to the directors Board of Directors with respect to a meeting or any written consent in lieu of meeting (except the meetings that such observer is entitled to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumattend; provided, however, that it (A) the observer shall not be a material breach entitled to vote on any matter submitted to the Board of this Agreement by Observer Directors or any of its committees nor to provide offer any other person access motions or resolutions to the Board of Directors or such meeting without the Company’s express prior written consent committees; (which consent B) such observer shall agree to hold in confidence all information so provided; provided that such observer may be by e-mail).
share such information with Cronos and its Representatives; and (cC) Notwithstanding the foregoing, the Company may reserves the right to withhold any information and to exclude Observer such observer from access to any material or meeting or portion thereof if: if access to such information or attendance at such meeting would reasonably be expected (i) the Board concludes in good faith, upon advice of the Company’s counselreasonable judgment) to result in (w) a violation of applicable Law, (x) the disclosure of any trade secrets in a manner that would result in any such exclusion is reasonably necessary to preserve trade secrets no longer being protected under applicable Law following such disclosure, (y) a waiver of the protection of any attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; protection or (iiz) such portion a conflict of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedinterest.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer Required Investors shall have the right to be heard at any such meeting, but in no event shall Observer: appoint one observer to the board of directors (ior similar governing body) be deemed to be a member of each of the Board or Borrower and the Parent (an “Observer”) and the audit committees of such Committees; (ii) boards. Upon the occurrence of an Event of Default and for so long as such Event of Default continues, the Required Investors shall have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) appoint one Observer to the Company board of directors (or its stockholders similar governing body) of each Credit Party, the Issuer, each Subsidiary of any Credit Party or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consentsIssuer, and all other materials or information committees of any of the foregoing boards. Such Observer shall be entitled, subject to applicable law and regulation (financial or otherwise) that are provided to the directors including regulations with respect to a meeting security clearance) (a) to receive the same notice and other materials in respect of all meetings (both regular and special) (or written consents) of the applicable board of directors as are furnished to members of such board, at the same time as the same are furnished to such members, together with an agenda for any such meetings, (b) to attend all meetings (and review all written consent in lieu consents) of meeting (except to the extent Observer has been excluded therefrom pursuant to clause any such board and (c) below).
to participate in all discussions conducted at meetings (bor with respect to actions to be taken by written consent) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumboard; provided, however, that it such Observer shall not constitute a member of such board and shall not be a material breach of this Agreement by Observer entitled to provide vote on any other person access matters presented to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoingboard; provided, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counselfurther, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would Observer may be required to preserve such privilege and leave, or not be allowed to attend, any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal (or may not receive certain materials) if such board reasonably believes after consultation with counsel, as that a conflict of interest or an attorney client privilege arises or may arise in connection with the Board may designateissues being discussed (or described in such materials). The provisions of this Section 5.17 are not intended to be duplicative of, and Observer (assuming Observer were a member of shall be interpreted consistently with, any similar rights that the Board) would not meet Investors may have under the then-applicable standards for independence adopted by the New York Stock Exchange, Equity Documents or such other exchange on which the CompanyIssuer’s securities are then traded.
(d) The Company shall compensate Observer operating agreement as in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified effect from time to time. FurtherIf requested by a Credit Party, the Company Observer shall reimburse Observer for all execute a reasonable out-of-pocket expenses incurred by Observer in connection with and customary confidentiality agreement prior to attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any meetings of such board or receipt of any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardmaterials.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer Subject to Section 4.1(d), Investor shall have the right to designate one representative (the “Board Observer”) to attend, in as a non-voting observer capacityobserver, all each meeting of the Board, whether such meeting is conducted in person or by teleconference or videoconference. The appointment of a Board Observer pursuant to this Section 4.1(a) shall be effective upon written notice from Investor to the Company of the name and contact information of the individual so appointed. If the individual appointed to act as Board Observer is no longer able or willing to act as Board Observer, or is not able or willing to attend one or more meetings of the Board, Investor may appoint another individual to act as Board Observer. If Investor determines that it does not wish to retain the right to designate a Board Observer, Investor may deliver a notice informing the Company of the same, and any the rights and all Committees for the purposes obligations of permitting Observer to have current information with respect to the affairs of Investor, the Company and the actions taken by the any Board Observer pursuant to this Section 4.1 shall terminate immediately upon delivery of such notice and Observer to provide input this Section 4.1 shall be of no further force and advice with respect thereto effect.
(the “Approved Purposes”). b) A Board Observer shall have the right to be heard present matters for consideration by the Board and to speak on matters presented by others at any such meeting, but in no event shall Observer: (i) be deemed to be a member meetings of the Board. A Board or such Committees; (ii) Observer shall not have the right to vote on any matter under consideration by presented to the Board. Subject to the confidentiality provisions of Section 4.1(e), the Company shall cause the Board or such Committees or otherwise have any power Observer to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consentspresentations, reports, and all other materials or information (financial or otherwise) that the Company provides to members of the Board when such documents and materials are provided to members of the directors with respect to a meeting or any written Board, including every form of action by unanimous consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board, together with the exhibits and annexes to any such consent. The Board Observer shall be entitled to the same notice as is provided for regular or any special meetings of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without Board under the Company’s express prior written consent (which consent may be by e-mail)charter and bylaws.
(c) Notwithstanding the foregoing, the Company may exclude the Board Observer from access to accessing any material or meeting attending any meeting, or any portion thereof thereof, if: (i) the Board concludes in good faith, upon the advice of the Company’s outside legal counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; (ii) such portion of a meeting is established for the purpose of negotiating a transaction with Investor; or (iiiii) such portion of a meeting is an executive session limited solely to independent director members of the Boarddirectors, independent auditors and/or legal counsel, as the Board may designate, and the Board Observer (assuming if the Board Observer were was a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) Investor’s right to designate a Board Observer, or to appoint a replacement thereto, shall only apply if the Stockholder Group collectively Owns at least the Minimum Ownership Amount. If the Stockholder Group collectively cease to Own the Minimum Ownership Amount, then Investor’s right to designate a Board Observer, and the rights of any such Board Observer, under this Agreement shall terminate.
(e) The Board Observer shall hold in confidence and trust and not use or disclose any confidential information provided to or learned by him or her in connection with the Board Observer’s rights hereunder for any purpose that is adverse to the Company unless otherwise required by law, regulation or court order (except (i) in connection with Investor’s enforcement of its rights under any agreement with the Company or its affiliates or under the Company’s organizational documents or other documents granting rights to its stockholders and (ii) in connection with Investor’s the ownership and disposition of Company Securities and other investments with the Company and its affiliates); provided, however, that the Board Observer may share any such information with Investor and its Affiliates. Investor shall cause the Board Observer to enter into such further agreements or undertakings with the Company to maintain the confidentiality of information so provided as the Company may reasonably request, provided that such agreements or undertakings are consistent with the terms of this agreement and are no more restrictive than agreements or arrangements entered into by other members of the Board. The Board Observer shall not be required to enter inter or undertake any agreements or policies other than those described in the immediately preceding sentence.
(f) The Board Observer shall be entitled to the same rights to indemnification and advancement of expenses as the directors of the Company.
(g) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of reimburse the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-of- pocket expenses incurred by the Board Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d4.1(g) shall be paid to the Board Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to the Board Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Stockholder's Agreement (Istar Inc.)
Board Observer Rights. (a) At or prior to the First Tranche Closing, the Company shall cause Xxxxx X. Xxxxxx to be appointed an observer to the Board of Directors of the Company (the “Observer”). Intrexon may, upon written notice to Adeona, change the identity of the Observer. The Company agrees that it will invite Observer shall be entitled to attend, in a non-voting observer capacity, attend all meetings of the Company’s Board of Directors and any and all Committees for the purposes of permitting Observer to have current information committees thereof as an observer (with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right power to vote on any matter under consideration by before the Board or such Committees or otherwise have any power board of directors) and shall be entitled to cause the Company receive copies of all materials provided to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors members of the Company. As ’s Board of Directors; provided that the Observer enters into a non-voting observer, Observer will also be provided (concurrently confidentiality agreement with delivery the Company in a form reasonably satisfactory to the directors of Company; and provided, further, that the Company and in reserves the same manner delivery is made right to them(i) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to exclude the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any Board of Directors’ material or meeting or portion thereof if: (i) if the Board concludes in good faith, upon advice of the Company’s counsel, Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect highly confidential information or for other similar reasons, or if the Company and such counsel; providedbelieves in good faith that the Observer has a conflict of interest, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members at the discretion of the Boardapplicable committee, independent auditors and/or legal counsel, as exclude the Board may designate, and Observer from access to any meeting materials or meeting (assuming Observer were a member or portion thereof) of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which nominating committee of the Company’s securities are then tradedBoard of Directors, compensation committee of the Company’s Board of Directors, audit committee of the Company’s Board of Directors and any other committee of the Company’s Board of Directors performing similar functions or which the listing rules of the NYSE Amex require to have such discretion.
(db) The Company shall compensate Observer in the same amount of all cash retainersSubject to Section 10.14, meeting fees Intrexon’s rights and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement obligations under this Section 6.6 shall be paid to Observer no later than comparable compensation or reimbursement is paid to terminate upon the members termination of the BoardChannel Agreement.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Adeona Pharmaceuticals, Inc.)
Board Observer Rights. (a) The Company agrees that it will invite Observer hereby invites any Purchaser, excluding Xxxxxx, who has purchased Securities in an amount equal to attend, or greater than [$1,800,000] under the terms of this Agreement to select one representative reasonably acceptable to the Company (each a “Representative”) to attend in a non-voting nonvoting observer capacity, all capacity meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same mediumDirectors; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may reserves the right to exclude Observer the Representative from access to any material or meeting or portion thereof if: if (i) the Board concludes in good faith, Company believes upon advice of the Company’s counsel, counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such its counsel; provided, however, that any such exclusion shall apply only (ii) access to such portion information or attendance at such meeting could create a conflict of interest between any of the material Purchasers or such portion of the meeting which would be required to preserve such privilege Representative, on the one hand, and not to any the Company, on the other portion thereof; hand, or (iiiii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or Board of Directors and legal counsel, as the Board may designate, . In addition and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Furtherupon [30]-day notice, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company may terminate rights granted to any Purchaser pursuant to this Section 1(d4.19. Any Purchaser eligible to select a Representative agrees that (a) such Representative shall be paid agree in writing to Observer hold in accordance with the Company’s policies confidence and practices trust and to act in a fiduciary manner with respect to director compensation all information provided to the Representative, except to the extent such information in the public domain at the time it is first provided to the Representative, or is subsequently released into the public domain (through no fault of the Representative), or otherwise required by law and expense reimbursement then any other regulatory process to which the Representative is subject, (b) such Representative shall acknowledge and agree that during the period in effect; providedwhich the Representative has board observation rights under this Section 4.19, however, that any such compensation or reimbursement the Representative shall be paid to Observer no later than comparable compensation subject to, and shall be deemed a “covered person” under, any xxxxxxx xxxxxxx policy now or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement hereafter adopted by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in and any code of ethics and business conduct now or hereafter adopted by the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverCompany.
Appears in 1 contract
Samples: Securities Purchase Agreement (Lehman Brothers Holdings Inc)
Board Observer Rights. (a) The Company agrees that it will invite After the execution of this Agreement and until the occurrence of an Altor Observer Termination Event, the Altor Group shall be entitled to attend, in a non-voting designate one observer capacity, all meetings of to the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved PurposesAltor Board Observer”). The initial Altor Board Observer shall have be Xxxxx Xxxxxxxxx. In the right event Xxxxx Xxxxxxxxx or any successor observer appointed in accordance with this Section 2.2(a) is unable to continue to serve in such role or in the event Xxxxx Xxxxxxxxx or any successor observer appointed in accordance with this Section 2.2(a) ceases to be heard at employed by, or a partner of, Altor or any of its Affiliates, the Altor Group will be entitled to designate a new individual to fill the resulting observer vacancy and, subject to the provisions of Sections 2.2(c) and (d), such meeting, but in no event individual shall Observer: (i) then be deemed to be a member of the Altor Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of for all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)purposes hereunder.
(b) If Except as otherwise expressly provided herein, the Altor Board Observer shall have the same rights as a meeting director of the Company with respect to receipt of information, the right to notice of, and the right to participate in all meetings of the Board. It is understood and agreed that the Altor Board Observer shall not have voting rights, nor shall the Altor Board Observer be counted towards a quorum. The Altor Board Observer shall not be entitled to receive any compensation from the Company for services as an observer (but shall be entitled to reimbursement of reasonable out of pocket expenses consistent with the Company’s travel and expense policies). Subject to Section 2.2(c), the Altor Board Observer shall be entitled to participate in any executive sessions (or similar sessions or meetings) of the Board or any and all meetings of committees of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail)Board.
(c) Notwithstanding the foregoingforegoing or any other provision hereof to the contrary, the Company may shall have the right to exclude the Altor Board Observer from or deny his or her access to any material Board or committee meeting or portion thereof if: (i) or any materials distributed to any Board members if the Chairman of the Board concludes in good faith, upon advice or a majority of the Company’s counselmembers in attendance at such meeting (or, with respect to materials to be provided in advance of any meeting, the Chairman of the Board or a majority of the members of the Board) reasonably determines that such exclusion is reasonably necessary or advisable to avoid a conflict of interest because the meeting (or portion thereof) or materials relate to a subject in which the Altor Board Observer or any Altor Investor has a direct interest, such as a dispute with or the enforcement of rights against any Altor Investor, or after consultation with counsel, in good faith determines that such exclusion is necessary or advisable to preserve the attorney-client or other applicable privilege between or is required by Applicable Law. The Altor Board Observer shall be required to recuse himself or herself from any portion of any Board or committee meeting if the Altor Board Observer has knowledge that any Altor Investor, or one of its Affiliates, is engaged in, pursuing, or evaluating the same business opportunity that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating which business opportunity is the subject of such portion of such Board or committee meeting and the participation of such counselAltor Board Observer would create a conflict of interest; provided, however, that any such exclusion in no event shall apply only to such portion of the material or such portion of the meeting which would Altor Board Observer be required to preserve such privilege and not to recuse himself or herself from any other portion thereof; or of any such Board meeting. The Altor Board Observer, as a condition to the exercise of the Altor Group’s rights under this Section 2.2, shall be required to (i) comply with the Company’s trading windows, blackout, and other policies applicable to insiders, except to the extent the Altor Board Observer would not qualify as an insider with respect to any specific transaction, (ii) such portion of a meeting is comply with any other regulatory requirements (including any obligation that may be imposed by the Commission) or any other Applicable Law to the extent applicable to the Altor Board Observer in his or her capacity as an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designateobserver, and Observer (assuming Observer were iii) enter into a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which customary confidentiality agreement with the Company’s securities are then traded.
(d) In the event that the individual named in Section 2.2(a) as the Altor Board Observer is unable to serve as an observer or ceases to be employed by, or a partner of, Altor or any of its Affiliates, the Altor Group shall be eligible to designate a replacement observer subject to the Board (i) having been provided reasonably requested background information regarding such proposed observer, (ii) having had the opportunity to interview such proposed observer in person, and (iii) consenting to the designation of such proposed observer as the Altor Board Observer (such consent not to be unreasonably withheld, conditioned, or delayed); provided that in no event shall the Company exercise the foregoing consent right in a manner intended to prevent, or with the reasonably foreseeable effect of preventing, the Altor Group from being able to exercise its right to designate the Altor Board Observer under Section 2.2(a). The Company Altor Group agrees that no individual shall compensate Observer be an observer or serve as an observer if such individual has been involved in any of the events enumerated in Item 2(d) or (e) of Schedule 13D under the Exchange Act or Item 401(f) of Regulation S-K under the Securities Act or is subject to any order, decree or judgment of any Governmental Authority prohibiting service as a director or observer of any public company. In any such case described in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Furtherpreceding sentence, the Company Altor Group shall reimburse remove such observer or withdraw the candidacy of a proposed observer, and so long as the Altor Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by Termination Event has not occurred, the Company pursuant Altor Group may designate a replacement therefor (which replacement will also be subject to the requirements of this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board2.2).
(e) The rights described in Immediately upon the occurrence of the Altor Observer Termination Event, all obligations of the Company with respect to the Altor Group and the Altor Board Observer pursuant to this Section 1 2.2 shall terminate upon: (i) forever terminate. From and after the end of Altor Observer Termination Event, the Altor Group shall no longer have a right to designate an observer pursuant this Section 2.2, and the Altor Group shall cause the Altor Board Observer Period, to promptly tender his or her resignation as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm an observer to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Shareholder Support Agreement (Ampco Pittsburgh Corp)
Board Observer Rights. (a) The Company agrees that it will invite Observer During the period from the date hereof until the Investor holds Preferred Shares, based upon the then applicable conversion price, equal to attendat least five percent (5%) of the then issued and outstanding shares of the Company's Common Stock, in based on the then applicable conversion price of such securities, Investor shall be entitled to appoint a non-voting observer capacity, (the "OBSERVER") to the Company's Board of Directors who is acceptable to the --------- Company; and such Observer shall be entitled to attend all meetings of the Company's Board of Directors and any committees thereof (other than the audit, nomination, governance, and compensation committees) and shall receive notice of all meetings and all Committees for the purposes of permitting Observer materials furnished to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors members of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to 's Board of Directors in their capacities as such at the directors of the Company same time and in the same manner delivery is made to them) copies of all notices, minutes, consents, as such notice and all other materials or information (financial or otherwise) that are provided to the directors Board of Directors, unless the Board of Directors of the Company shall in good faith determine, after having consulted with respect and considered the advice of outside counsel, that delivery of such notice and/or materials to Investor would constitute a meeting breach of fiduciary duties of the members of such Board of Directors to its stockholders under applicable law. Upon the request of the Board of Directors of the Company, the Observer will excuse himself or herself from any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting portion of the Board or any committee meetings if the Board of Directors shall reasonably determine that the Observer's presence may violate the attorney-client privilege, create a conflict of interest or otherwise constitute a breach of fiduciary duties of the Committees is conducted via telephone members of such Board of Directors to its stockholders under applicable law. The materials furnished to Investor and the discussions and presentations in connection with or other electronic medium (e.g., videoconference), Observer may attend at such meeting via the same mediummeetings shall be considered confidential information and Investor shall not disclose such materials and discussions to any third party; provided, however, that it the foregoing shall be a not limit in any manner the -------- ------- rights of Investor under the Technology Agreements.
(b) The Investor acknowledges that the use or disclosure of any information which is material breach and non-public ("INSIDE INFORMATION"), or trading in the ------------------ securities of this Agreement the Company on the basis of such Inside Information, may result in civil and criminal penalties and enforcement proceedings commenced by Observer to provide the SEC and others in the event the Investor, its affiliates or any other person access to such meeting without of its employees engages in transactions involving the capital stock of the Company’s express prior written consent (which consent . Because of receipt of the confidential information provided to the Investor and its Nominee, the Investor and its Nominee may be by e-mail)deemed to have Inside Information regarding the Company.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate acknowledges that the Observer in the same amount of all cash retainerswill likely have, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, information that may be of interest to the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred ("INFORMATION") ----------- regarding a wide variety of matters including, by Observer in connection way of example only, (a) Investor's technologies, plans and services, and plans and strategies relating thereto, (b) current and future investments Investor has made, may make, may consider or may become aware of with attendance at Board respect to other companies and Committee meetings. All compensation other technologies, products and reimbursements payable by the Company pursuant to this Section 1(d) shall services, including, without limitation, technologies, products and services that may be paid to Observer in accordance competitive with the Company’s policies 's, and practices (c) developments with respect to director compensation the technologies, products and expense reimbursement then in effect; providedservices, howeverand plans and strategies relating thereto, of other companies, including, without limitation, companies that any may be competitive with the Company. The Company recognizes that a portion of such compensation or reimbursement shall Information may be paid to Observer no later than comparable compensation or reimbursement is paid of interest to the members Company. Such Information may or may not be known by the Observer. The Company, as a material part of the Board.
(e) The rights described in consideration for this Section 1 Agreement, agrees that Investor and its Observer shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) have no duty to disclose any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm Information to the Company or permit the Company to participate in any projects or investments based on any Information, or to otherwise take advantage of any opportunity that may be of interest to the Board’s sole Company if it were aware of such Information, and absolute discretion; hereby waives, to the extent permitted by law, any claim based on the corporate opportunity doctrine or (iii) otherwise that could limit Investor's ability to pursue opportunities based on such Information or that would require Investor or Observer to disclose any such Information to the death Company or disability of Observeroffer any opportunity relating thereto to the Company.
Appears in 1 contract
Samples: Securities Purchase Agreement (Number Nine Visual Technology Corp)
Board Observer Rights. (a) The Company agrees that it will shall invite Observer one representative of Lightspeed Venture Partners IX, L.P., a Cayman Islands exempted limited partnership (together with its affiliates, “Lightspeed”) to attend, in a non-voting observer capacity, attend all meetings of the Board and any and all Committees for the purposes board of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto directors in a nonvoting observer capacity (the “Approved PurposesLightspeed Board Observer”). Observer shall have the right to be heard at any such meeting) and, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with the delivery to the directors members of the Company and in the same manner delivery is made board of directors, give to them) such representative copies of all notices, minutes, consents, consents and all other materials or information (financial or otherwise) that are provided the Company provides to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the its directors. The Lightspeed Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer excluded from access to any material materials or meeting meetings or portion portions thereof if: (i) if the Board concludes board of directors determines in good faith, upon advice of the Company’s counsel, faith that such exclusion is reasonably necessary to preserve the attorney-client privilege between or to protect highly confidential proprietary information. Such representative shall initially be Xxxx Xxxxxx and Lightspeed may from time to time appoint a substitute or successor representative with the consent of the Company and such counsel; provided(not to be unreasonably withheld, howeverdelayed or conditioned).
(b) The Company shall invite one representative of Founders Fund V, that any such exclusion shall apply only LP, a Delaware limited partnership (together with its affiliates, “Founders Fund”) to such portion attend all meetings of the material or such portion board of directors in a nonvoting observer capacity (the meeting which would be required “Founders Fund Board Observer”) and, concurrently with the delivery to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director the members of the Boardboard of directors, independent auditors and/or legal counselgive to such representative copies of all notices, as minutes, consents and other materials that the Company provides to its directors. The Founders Fund Board Observer may designate, and Observer (assuming Observer were be excluded from access to any materials or meetings or portions thereof if the board of directors determines in good faith that such exclusion is reasonably necessary to preserve attorney-client privilege or to protect highly confidential proprietary information. Founders Fund may from time to time appoint a member substitute or successor representative with the consent of the BoardCompany (not to be unreasonably withheld, delayed or conditioned).
(c) would The Company shall invite one representative of Ossa Investments Pte. Ltd. (together with its affiliates, “Temasek”) to attend all meetings of the board of directors in a nonvoting observer capacity (the “Temasek Board Observer”) and, concurrently with the delivery to the members of the board of directors, give to such representative copies of all notices, minutes, consents and other materials that the Company provides to its directors. The Temasek Board Observer may be excluded from access to any materials or meetings or portions thereof if the board of directors determines in good faith that such exclusion is reasonably necessary to preserve attorney-client privilege or to protect highly confidential proprietary information. Temasek may from time to time appoint a substitute or successor representative with the consent of the Company (not meet the then-applicable standards for independence adopted by the New York Stock Exchangeto be unreasonably withheld, delayed or such other exchange on which the Company’s securities are then tradedconditioned).
(d) The Company shall compensate Observer in the same amount invite one representative of General Atlantic (BL), L.P. (together with its affiliates, “General Atlantic”) to attend all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member meetings of the board of directors in a nonvoting observer capacity (the “General Atlantic Board and a member of each of the committees thereofObserver”) and, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance concurrently with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid delivery to the members of the Boardboard of directors, give to such representative copies of all notices, minutes, consents and other materials that the Company provides to its directors. The General Atlantic Board Observer may be excluded from access to any materials or meetings or portions thereof if the board of directors determines in good faith that such exclusion is reasonably necessary to preserve attorney-client privilege or to protect highly confidential proprietary information. General Atlantic may from time to time appoint a substitute or successor representative with the consent of the Company (not to be unreasonably withheld, delayed or conditioned).
(e) The Company shall invite one representative of Canapi Ventures Fund, L.P. (together with its affiliates, “Canapi”) to attend all meetings of the board of directors in a nonvoting observer capacity (the “Canapi Board Observer”) and, concurrently with the delivery to the members of the board of directors, give to such representative copies of all notices, minutes, consents and other materials that the Company provides to its directors. The Canapi Board Observer may be excluded from access to any materials or meetings or portions thereof if the board of directors determines in good faith that such exclusion is reasonably necessary to preserve attorney-client privilege or to protect highly confidential proprietary information. Canapi may from time to time appoint a substitute or successor representative with the consent of the Company (not to be unreasonably withheld, delayed or conditioned). Notwithstanding the foregoing, if and during such time that Canapi has the right to and has appointed a member of the Board pursuant to the Amended and Restated Voting Agreement, by and between the Company and certain of its stockholders, dated as of the date hereof, as may be amended and/or restated from time to time, then Canapi shall have no right to appoint a board observer pursuant hereto.
(f) The Company shall invite one representative of Coatue US 36 LLC (together with its Affiliates, “Coatue”) to attend all meetings of the board of directors in a nonvoting observer capacity (the “Coatue Board Observer”) and, concurrently with the delivery to the members of the board of directors, give to such representative copies of all notices, minutes, consents and other materials that the Company provides to its directors. The Coatue Board Observer may be excluded from access to any materials or meetings or portions thereof if the board of directors determines in good faith that such exclusion is reasonably necessary to preserve attorney-client privilege or to protect highly confidential proprietary information. Coatue may from time to time appoint a substitute or successor representative with the consent of the Company (not to be unreasonably withheld, delayed or conditioned). In addition, the board observer rights described contained in this Section 1 3 shall terminate upon: (i) include the end right to receive information and materials related to the activities of any committees of the Observer Period, as described in the Merger Agreement; (ii) any material violation board of directors of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverCompany.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attenda. During the Term, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to attend, participate in and be heard at any such each meeting, but in no event shall Observer: (i) :
i. be deemed to be a member of the Board or such Committees; (any committee thereof, or an officer, employee or agent of the Company;
ii) . have the right to vote on or consent to any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any actioncommittee thereof; or (or
iii) except as expressly set forth in this Agreement, . have or be deemed to have, or otherwise be subject to, to (x) any fiduciary duties (fiduciary of a director or otherwise) officer to the Company or its stockholders stockholders, or any duties obligations that derive from any such fiduciary duties, or (fiduciary or otherwisey) otherwise applicable except as expressly set forth in this Agreement, any other obligations to the directors of the CompanyCompany or its stockholders. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, consents and finalized minutes, consents, and all other materials or information (financial or otherwise) ), in each case that are provided or made available to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to in accordance with clause (c) below).
(b) b. If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g.telephone, videoconference), or some other form of remote communication, Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) c. Notwithstanding the foregoing, the Company may may, in the Board’s sole discretion, exclude Observer from access to any material or meeting or portion thereof if: (i) :
i. upon the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the any attorney-client privilege between the Company and the Company’s counsel (unless another privilege, such counselas the common interest privilege, would apply); provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be the Company believes, upon the advice of the Company’s counsel, is required to preserve such privilege applicable privilege;
ii. the material or meeting relates to the Company’s or its affiliates’ relationship, contractual or otherwise, with Observer or its affiliates or any actual or potential transactions between or involving the Company or its affiliates and not to any other portion thereofObserver or its affiliates; or (ii) or
iii. such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or auditors, legal counsel, and such others as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) d. The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d2(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Samples: Board Observer Agreement (Flexsteel Industries Inc)
Board Observer Rights. (a) The Company Trust agrees that it will invite subject to the provisions set forth herein, and the Observer to Protocol, Observer may attend, in a non-voting observer capacity, all meetings of the Board and and, subject to the immediately following sentence, any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company Trust and the actions taken by the Board and for the Observer to provide input and advice with respect thereto (the “Approved Purposes”). The Observer may attend Committee meetings only with the consent of such Committee’s chair, such consent not to be unreasonably withheld or delayed, provided however, if such Committee is vested with authority to bind the Trust pursuant to Section 6.8 of the LTA, the Observer shall have the right to attend such Committee’s meetings as if it were a Board meeting (subject to the provisions of Section 1(c)). Observer shall have the right to be heard at any such meetingBoard or Committee meeting and the Board will consider in good faith recommendations made by the Observer, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; or (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company Trust to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors Liquidating Trustees of the Company Trust and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors Board (other than drafts of minutes which will not be provided to Observer) with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) belowSection 1(c).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the CompanyBoard’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company The Board may exclude the Board Observer from access to any material materials or meeting meetings (or portion thereof if: (ithereof) which the Board concludes in good faith, faith upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve notwithstanding the expectation that the Board Observer will generally come within the ambit of the attorney-client privilege between the Company and such counsel; providedjoint interest privileges, however, that any such exclusion shall apply only is necessary to preserve such privileges with respect to such material. In such case, the Observer shall be informed of the general subject matter of the materials or meetings (or portion thereof) from which the Observer is excluded. Notwithstanding anything else set forth herein, the Observer may be excluded from access to executive sessions of the Board and access to materials distributed in connection with such executive sessions, provided that if the Board is soliciting consents from the Liquidating Trustees or taking Action pursuant to Section 6.5 of the LTA at such executive session, the Observer may attend that portion of the material or such portion executive session. Nothing herein shall be deemed to prevent the Board from acting by written consent in accordance with the terms of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then tradedLTA.
(d) The Company Trust shall compensate pay the Observer $180,000 annually, paid quarterly in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to timearrears. FurtherIn addition, the Company Trust shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at the Observer’s exercise of the Board and Committee meetingsObserver Rights pursuant to this Section 1. All compensation and reimbursements payable by the Company Trust pursuant to this Section 1(d) shall be paid to Observer in accordance with the CompanyTrust’s policies and practices (including timing) with respect to director Liquidating Trustee compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board.
(e) The rights described in this Section 1 shall terminate uponObserver (or any replacement) may be replaced at any time by the holders of more than 50% of the Units not held by the Nominating Parties and must be reasonably acceptable to the Board. The Board may require the Observer’s removal upon : (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten five business days after receipt of notice thereofthereof to Observer and Selecting Noteholders, or (B) if such violation is not subject to cure, directly immediately upon notice thereof to Observer and Selecting Noteholders if such violation causes harm to the Company Trust in the Board’s sole and absolute discretiondiscretion based upon legal advice; or (iiiii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. For so long as 500,000 shares of Series D --------------------- Preferred Stock remain outstanding, the Company shall permit Attractor Investment Management Inc. (a"Attractor") The Company agrees that it will invite Observer to attenddesignate one observer who is an --------- employee of Attractor (the "Series D Observer"), in a non-voting observer capacitywho initially shall be Xxxxxx ----------------- Xxxxxxx, to be present at all meetings of the Company's Board and of Directors, or any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs committee thereof which represents at least a majority of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member members of the Board of Directors, and to give the Series D Observer notice of such meetings at the same time notice is provided or such Committees; (ii) have the right delivered to vote on any matter under consideration by members of the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable of Directors. Board of Directors' materials that are sent to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery prior to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of Directors shall be sent simultaneously by the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via Company to the same mediumSeries D Observer; provided, however, that it shall be the Company may -------- ------- exclude from the materials sent to the Series D Observer any materials that the Company believes relate directly and substantially to any matter in which Attractor has a material breach business or financial interest. In addition, if the Company receives advice from legal counsel that discussing a specified matter in the presence of this Agreement by Observer to provide any other a person access who is not a member of the Board of Directors, or sending specified Board of Directors' materials to such meeting without person, might result in the Company’s express prior written consent (which consent may be by e's loss of attorney-mail).
(c) Notwithstanding the foregoingclient privilege with respect to a specified matter, the Company may exclude the Series D Observer from access to any material or a meeting or portion thereof if: (i) exclude such Board of Directors' materials from the Board concludes in good faithmaterials sent to the Series D Observer, upon advice of or both, provided that the Company’s counsel, Company shall promptly notify the Series D Observer that such any exclusion is reasonably necessary from a meeting or materials distributed to directors was effected to preserve the its attorney-client privilege between or avoid conflicts of interest. Insofar as any possibility of conflict of interest may arise with respect to the Company Series D Observer, all duties and such counsel; provided, however, obligations that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted Board of Directors may have by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member virtue of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices law with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement conflict of interest shall be paid to Observer no later than comparable compensation or reimbursement is paid apply to the members Series D Observer. Attractor and each of its officers, directors, employees and agents, including the Series D Observer, agrees to maintain the confidentiality of any information of the BoardCompany obtained by them.
(e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.
Appears in 1 contract
Board Observer Rights. (a) The Company agrees that it will invite Observer to attendattend meetings of the Company’s Board of Directors and to observe transaction of business by the Board through written consents, in a non-voting nonvoting observer capacity, all meetings of the Board and any and all Committees for the purposes sole purpose of permitting Observer and his/her/its affiliates to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto of Directors (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) the Observer be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; .
(b) The Company hereby agrees that it shall not disclose any material non-public information to the Observer without Observer’s prior consent. Prior to each time when the Board transacts business by meetings or by written consents, the Company shall notify the Observer if there will be material non-public information concerning the matters brought for consideration by the Board. Observer shall within one (iii1) except as expressly set forth business day (“Election Deadline”) notify the Company in this Agreementwriting if he/she/it elects to observe the Board pursuant to Section 1(a) hereof. In the event that Observer does not notify the Company on or prior to the Election Deadline, have or it shall be deemed that Observer has elected not to have, or otherwise be subject to, any duties exercise his/her/its right to observe provided under Section 1(a) hereof.
(fiduciary or otherwisec) Upon exercise of his/her/its right to the Company or its stockholders or any duties (fiduciary or otherwiseobserve pursuant to Section 1(b) otherwise applicable to the directors of the Company. As a non-voting observerhereof, Observer will also shall be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are is provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below)meeting.
(bd) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement for anyone other than (i) Observer, (ii) a successor observer, if one has been appointed by Observer WHEC, provided, however that such successor observer has been subjected to provide the same or similar background and diligence check prior to exercising any other person access observer rights contemplated hereunder, or (iii) an observer designee, if one has been designated by WHEC pursuant to Section 6.1(c) of the Share Exchange Agreement, provided, however that such meeting successor observer has been subjected to the same or similar background and diligence check prior to exercising any observer rights contemplated hereunder, to attend or participate in any way in such meeting, directly or indirectly, without the Company’s express prior written consent (which consent may be by e-mail)consent.
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded.
(de) The Company shall compensate reimburse the Observer in on a quarterly basis for the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable , all of which expenses shall be subject to pre-approval by the Company pursuant following submission to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that Company of reasonably detailed accounting of any such compensation or reimbursement shall be paid expenses prior to Observer no later than comparable compensation or reimbursement is paid to the members of the Boardany reimbursement.
(ef) The rights described in this Section 1 shall terminate upon: upon (i) termination of WHEC’s right to appoint and maintain an Observer to the end of the Observer Period, Company’s Board as described provided in the Merger Share Exchange Agreement; , or (ii) any material violation appointment of a replacement Observer by WHEC pursuant to Section 6.1 of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverShare Exchange Agreement.
Appears in 1 contract
Samples: Board Observer and Indemnification Agreement (Andatee China Marine Fuel Services Corp)
Board Observer Rights. (ai) The For so long as a Limited Investor (x) holds of record and Beneficially Owns at least 5% of the Outstanding Shares and (y) such Limited Investor does not have a a Director nominated by such Limited Investor serving on the on the Company agrees that it will invite Observer Board, without limitation of or prejudice to attendany of the rights provided to such Limited Investor hereunder, in a the Company shall, with respect to such Limited Investor:
(A) give such Limited Investor the right to designate one (1) non-voting board observer capacity, who will be entitled to attend all meetings of the Company Board and any and participate in all Committees for deliberations of the purposes of permitting Observer to Company Board; provided that such observer shall have current information no voting rights with respect to actions taken or elected not to be taken by the affairs Company Board; provided, further, that Company Board shall be entitled to exclude such observer from such portions of any of its meetings to the extent (x) such observer’s presence would be reasonably likely to result in the waiver of attorney-client (or other similar) privilege, (y) there exists, with respect to any such materials, an actual or potential conflict of interest between such Limited Investor and the Company or (z) the removal of such observer is required under applicable law or the rules of any stock exchange applicable to the Company; and
(B) provide to each such board observer copies of all materials provided to the Company Board at substantially the same time as provided to the members of the Company and Board; provided that the actions taken by Company shall be entitled to redact portions of such materials to the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: extent that (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as 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 any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below).
(b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail).
(c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion redaction is reasonably necessary to preserve the attorney-client (or other similar) privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only with respect to such portion of the material a matter or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; protect highly confidential proprietary information or (ii) there exists, with respect to any such portion materials, an actual or potential conflict of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, interest between such Limited Investor and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded; provided further, that the Company shall not provide any such information to any Limited Investor for such long as such Limited Investor elects not to exercise its right to appoint a non-voting board observer pursuant to Section 2.1(f)(i)(A).
(dii) The For so long as a Limited Investor has the right to designate one (1) non-voting board observer to the Company shall compensate Observer in Board pursuant to Section 2.1(f)(i) (the same amount “Limited Investor Board Observer”), if any H&F Nominee or any Carlyle Nominee serves on the board of all cash retainers, meeting fees and directors (or equivalent governing body) of any other cash fees as if Observer were an independent director member Subsidiary of the Board and a member of each of the committees thereofCompany, as such cash compensation may be modified from time to time. Furtherthen, the Company shall reimburse offer to such Limited Investor to include the Limited Investor Board Observer for all reasonable outas a non-of-pocket expenses incurred by Observer in connection with attendance voting board observer to such board of directors (or equivalent governing body) and at Board and Committee meetings. All compensation and reimbursements payable by the request of such Limited Investor, the Company pursuant shall cause such board of directors (or equivalent governing body) to this Section 1(dinclude such Limited Investor Board Obersever as a non-voting board observer who will be entitled to attend all meetings of such board of directors (or equivalent governing body) and participate in all deliberations of such board of directors (or equivalent governing body); provided that such observer shall have no voting rights with respect to actions taken or elected not to be taken by such board of directors (or equivalent governing body); provided, further, that such board of directors (or equivalent governing body) shall be paid entitled to Observer exclude such observer from such portions of any of its meetings to the extent (x) such observer’s presence would be reasonably likely to result in accordance with the Company’s policies and practices waiver of attorney-client (or other similar) privilege, (y) there exists, with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation materials, an actual or reimbursement potential conflict of interest between such Limited Investor and the Company or (z) the removal of such observer is required under applicable law or the rules of any stock exchange applicable to the Company. The Company shall be paid provide to Observer no later than comparable compensation each such board observer copies of all materials provided to such board of directors (or reimbursement is paid equivalent governing body) of the applicable Subsidiary at substantially the same time as provided to the members of such board of directors (or equivalent governing body); provided that the Board.
(e) The rights described in this Section 1 Company or such Subsidiary shall terminate upon: be entitled to redact portions of such materials to the extent that (i) the end of the Observer Period, as described in the Merger Agreement; such redaction is reasonably necessary to preserve attorney-client (or other similar) privilege with respect to a matter or to protect highly confidential proprietary information or (ii) there exists, with respect to any material violation such materials, an actual or potential conflict of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if interest between such violation is not subject to cure, directly causes harm to Limited Investor and the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of ObserverSubsidiary.
Appears in 1 contract
Samples: Stockholders Agreement (PPD, Inc.)