Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. (a) During such time as GS owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Power, GS shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. During such time as Highstar owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Power, Highstar shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. (b) Without limiting any other rights in this Agreement, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Power, the Company shall permit such Investor Shareholder to have an Observer attend each meeting of the Board and each meeting of any committee thereof; provided, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a written opinion of counsel to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and at the same time as it shall send such notice to the directors or committee members, as the case may be. The Company shall also provide to each such Observer copies of all notices, reports, minutes and consents at the time and in the manner as they are provided to the directors or committee members, as the case may be. (d) Notwithstanding any provision of this Section 3.2, the Company shall have the right to exclude any Observer from access to any Board or committee meeting or portion thereof or any materials distributed to any Board or committee members in the sole discretion of a majority of the members in attendance at such Board or committee meeting (or, with respect to materials to be provided in advance of any meeting, a majority of the members of the Board or committee, as applicable). An Observer shall recuse himself or herself from any portion of any Board or committee meeting if (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create a conflict of interest and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Company, (ii) to undergo any training required by the Company’s policies regarding FERC standards of conduct that are applicable to directors and (iii) to comply with any other regulatory requirements to the extent applicable to such Observer in his or her capacity as an Observer.

Board Observer Rights. Prior to the completion of the Initial Offering, for so long as The Xxxxxxx Xxxxx Group, Inc. (a"Xxxxxxx Sachs"), together with its affiliates, holds (and continues to hold) During such time as GS owns at least 2.525% of the Total Voting Power but less than 5% Subject Common Shares (or Series D Stock of the Total Voting Power, GS shall be entitled to have an Observer in addition to its one (1Company into or for which such Subject Common Shares are convertible or exchangeable or shares of Common Stock into which the Series D Stock are converted) remaining nominee that Xxxxxxx Xxxxx acquires pursuant to the Board. During such time Purchase Agreement (as Highstar owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Poweradjusted for stock splits, Highstar shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. (b) Without limiting any other rights in this Agreementsubdivisions and combinations, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Powerreclassifications and similar corporate actions), the Company shall permit such Investor Shareholder a designee of Xxxxxxx Sachs or its affiliates (the "Observer") to have an Observer attend each meeting all meetings of its Board of Directors (whether in person; telephonic or other) (other than meetings of a committee of the Board and each meeting of any committee thereof; providedDirectors, that an Investor Shareholder may have more than one Observer if unless other board observers are permitted to attend such Investor Shareholder delivers meetings) in a written opinion of counsel to nonvoting observer capacity and. in this respect, shall provide the Company providing that more than one Observer is reasonably necessary to comply Observer, concurrently with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations members of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and at the same time as it shall send such notice to the directors or committee membersDirectors, as the case may be. The Company shall also provide to each such Observer with copies of all notices, reportsminutes, minutes consents, and consents at other materials that it provided to such members (other than in meetings of a committee of the time Board of Directors, unless other board observers are provided such materials); provided, however, that the Observer agrees to hold in confidence and trust all information so provided to it or learned by it in connection with its rights hereunder; it being understood and agreed that, notwithstanding the foregoing, the Observer shall be permitted to use or disclose such information to Xxxxxxx Xxxxx and its affiliates in connection with managing its investment in the manner as they are provided to the directors or committee membersCompany; and provided, as the case may be. (d) Notwithstanding any provision of this Section 3.2further, that the Company shall have reserves the right to withhold any information or to exclude any the Observer from access to any Board or committee meeting or portion thereof or any materials distributed to any Board or committee members in the sole discretion of a majority of the members in attendance at such Board or committee meeting (or, with respect to materials to be provided in advance of any meeting, a majority of the members of the Board or committee, as applicable). An Observer shall recuse himself or herself from any portion of any Board or committee meeting if (i) access to such Observer has actual knowledge that information or attendance at such meeting could adversely affect the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that attorney-client privilege between the Company and its counsel; (ii) access to such information or any attendance at such meeting could result in disclosure of trade secrets to Xxxxxxx Sachs or its Subsidiaries is currently engaged in, pursuing representative; or evaluating and the participation of (iii) access to such Observer would create information or attendance at such meeting could result in a conflict of interest between Xxxxxxx Xxxxx or its representative and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Company, (ii) to undergo any training required by the Company’s policies regarding FERC standards of conduct that are applicable to directors and (iii) to comply with any other regulatory requirements to the extent applicable to such Observer in his or her capacity as an Observer.

Board Observer Rights. For so long as the Investors hold, in the aggregate, at least 25% of the Common Stock (as adjusted for stock splits and combinations) acquired pursuant to conversion of the Convertible Notes and the Series C Preferred Stock (or shares of Common Stock issuable upon conversion of the Convertible Notes and the Series C Preferred Stock) held by them as of the date of this Agreement, after taking into account the Redemption Closing (as defined in the Purchase Agreement) if the Redemption Closing occurs, the Majority Investors will have the right to have up to two individuals present at all meetings of the Board and, for so long as Mercato holds at least 10,000 of Series B Preferred Stock (or shares of Common Stock issued upon conversion of the Series B Preferred Stock held by Mercato), Mercato will have the right to have one individual present at all meetings of the Board (each, a “Board Observer” and collectively, the “Board Observers”). The Board Observers will be (a) During such time as GS owns at least 2.5% given notice by the Secretary of the Total Voting Power but less than 5% Company of the Total Voting Power, GS shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. During such time as Highstar owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Power, Highstar shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. (b) Without limiting any other rights in this Agreement, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Power, the Company shall permit such Investor Shareholder to have an Observer attend each meeting of the Board and each meeting of or any committee thereof; provided, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a written opinion of counsel to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and thereof at the same time as it shall send such notice the directors, (b) entitled to be present at all meetings of the directors Board or any committee membersthereof, as the case may be. The Company shall also provide to each such Observer (c) provided copies of all noticesminutes of Board meetings and Board committee meetings, and (d) provided copies of any reports, minutes and consents or other documents distributed to the Board or any committee thereof at the time and in the manner as they such materials are provided given to the directors or committee membersBoard; provided, as the case may be. (d) Notwithstanding however, that before any provision of Confidential Information is distributed to any Board Observer pursuant to this Section 3.26.2, such Board Observer must execute a customary confidentiality agreement. If the Board or any committee thereof determines in good faith that exclusion of a Board Observer from any meeting, or the withholding of any information or materials from a Board Observer, is reasonably necessary in order to (i) avoid a conflict of interest between the Company shall or any Subsidiary, on one hand, and the Board Observer, on the other hand, (ii) preserve trade secrets or other confidential or proprietary information of the Company or any Subsidiary, or (iii) preserve the attorney-client privilege of the Company or any Subsidiary, then the Company will have the right to exclude any the Board Observer only from access to any Board or committee meeting or portion thereof or any materials distributed to any Board or committee members in the sole discretion of a majority of the members in attendance at such Board or committee meeting (or, with respect to materials to be provided in advance those portions of any such meeting, or withhold only those portions of information or materials from a majority of the members of the Board or committee, as applicable). An Observer shall recuse himself or herself from any portion of any Board or committee meeting if (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create a conflict of interest and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable necessary to such Observer and to the Company, (ii) to undergo any training required by protect the Company’s policies regarding FERC standards or Subsidiary’s interest. The parties agree that the Board Observer of conduct Mercato must be an individual who the Majority Investors conclude does not engage, directly or indirectly, in a business that are applicable to directors and (iii) to comply competes with any other regulatory requirements to the extent applicable to such Observer in his or her capacity as an ObserverCompany.

Board Observer Rights. So long as Alta Partners VIII, LP or an Affiliate thereof (a“Alta”) During such time as GS owns holds at least 2.5% 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the Total Voting Power but less than 5% of like) the Total Voting Power, GS Company shall be entitled allow Alta to have an Observer in addition to its designate one (1) remaining nominee observer (the “Alta Observer”) to attend all regular meetings of the BoardBoard of Directors and committees thereof in a nonvoting capacity. During such time So long as Highstar owns RiverVest Venture Fund II, L.P. or an Affiliate thereof (“RiverVest”) holds at least 2.5% 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the Total Voting Power but less than 5% of like) the Total Voting Power, Highstar Company shall be entitled allow RiverVest to have an Observer in addition to its designate one (1) remaining nominee observer (the “RiverVest Observer”) to attend all regular meetings of the Board. Board of Directors and committees thereof in a nonvoting capacity. So long as Roche Finance Ltd or an Affiliate thereof (b“Roche”) Without limiting any other holds at least 250,000 shares of Preferred Stock (as adjusted for stock splits, combinations, reorganizations and the like) the Company shall allow Roche to designate one (1) observer (the “Roche Observer”) to attend all regular meetings of the Board of Directors and committees thereof in a nonvoting capacity. In connection with the observer rights set forth in this Agreement, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Power3.9, the Company shall permit such Investor Shareholder to have an Observer attend each meeting of give the Board and each meeting of any committee thereof; provided, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a written opinion of counsel to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubtAlta Observer, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to RiverVest Observer and the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and at the same time as it shall send such notice to the directors or committee members, as the case may be. The Company shall also provide to each such Roche Observer copies of all notices, reportsminutes, minutes consents and consents at other materials, financial or otherwise, which the time and in the manner as they are provided Company provides to the directors or committee membersBoard of Directors, as all of which information shall be deemed by the case may be. (d) Notwithstanding any provision recipient thereof to be confidential information of this Section 3.2, the Company shall have unless such information is otherwise confirmed in writing by the Company to such recipient to not be confidential to the Company; provided, however that the Company reserves the right to exclude any the Alta Observer, and/or the RiverVest Observer and/or the Roche Observer from access to any Board material or committee meeting or portion thereof or any materials distributed to any if the Board or committee members of Directors determines (a) by a decision in the sole discretion of good faith by at least a majority of the members then-serving Directors, and upon advice from its legal counsel, that there is a substantial risk that such individual observer’s presence during such portion of the relevant meeting could result in attendance at such Board or committee meeting (or, the Company’s loss of attorney-client privilege with respect to materials to be provided such matter or documents, (b) by a decision in advance of any meeting, good faith by at least a majority of the members then-serving Directors, after reasonable consultation as to such matter by the Chief Executive Officer with such observer, reasonably believes that such specified matter relates directly and substantially to any matter in which both the Company and the observer entity have a material business or financial interest (as to such observer entity, other than solely by reason of the Board observer entity’s interest as a stockholder of the Company) or committee, as applicable). An Observer shall recuse himself or herself from any portion of any Board or committee meeting if (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create matter creates a conflict of interest and for such observer entity, or (iic) such business opportunity is being discussed during such portion by a decision in good faith by at least a majority of such meeting (providedthe then-serving Directors, that for after consultation by the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection Chief Executive Officer with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Company, (ii) to undergo any training required by the Company’s policies regarding FERC standards of conduct legal counsel, that are applicable to directors and (iii) to comply with any other regulatory requirements such specified matter involves confidential or sensitive information related to the extent applicable business of the Company the disclosure of which by the Company to such Observer in his observer entity would or her capacity as an Observercould be adverse to the interests of the Company and its stockholders.

Board Observer Rights. (a) During such time For so long as GS owns the Strategic Investor or its affiliates hold in the aggregate at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Poweroutstanding shares of Common Stock, GS or securities convertible into shares of Common Stock of the Company (as adjusted for stock splits, stock dividends, recapitalizations and similar events) that the Strategic Investor purchased pursuant to this Agreement, the Strategic Investor shall have the right, but not the obligation to from time to time require, in writing, the Company to permit a representative of the Strategic Investor (the "Observer") to attend all meetings of its Board of Directors (whether in person, telephonic or other) and any committees thereof in a nonvoting observer capacity. Any Observer must be approved by the written consent of the Company's Nominating, Compensation and Corporate Governance Committee and such consent shall not be unreasonably withheld. For the purpose of this calculation, the Strategic Investor shall be entitled deemed to have an Observer in addition hold the maximum number of shares of Common Stock which could be acquired by the Strategic Investor upon conversion of the convertible securities purchased pursuant to its one (1) remaining nominee to the Boardthis Agreement notwithstanding any limitations on conversion of such convertible securities contained therein. During such time as Highstar owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Power, Highstar shall be entitled Strategic Investor elects to have appoint an Observer in addition to its one (1) remaining nominee pursuant to the Board. (b) Without limiting any other rights in this Agreement, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Powerprovisions set forth herein, the Company shall permit such Investor Shareholder to have an Observer attend each meeting provide the Observer, concurrently with the members of the Board and each meeting of any committee thereof; providedDirectors, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a written opinion of counsel to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and at the same time as it shall send such notice to the directors or committee members, as the case may be. The Company shall also provide to each such Observer copies of all notices, reportsminutes, minutes consents, and consents at the time and in the manner as they are provided other materials that it provides to the directors or committee such members; provided, as the case may be. (d) Notwithstanding any provision of this Section 3.2however, the Company Board of Directors shall have the right right, in its sole discretion, to exclude any Observer from access meet in confidential executive session, which the Strategic Investor's representative will not be entitled to any Board or committee meeting or portion thereof or any materials distributed to any Board or committee members in the sole discretion of a majority of the members in attendance at such Board or committee meeting (orattend, with respect to materials to be provided in advance of any meeting, a majority of the members of if the Board or committeeof Directors shall determine in good faith, as applicable). An Observer shall recuse himself or herself from any portion based upon the advice of any Board or committee meeting if counsel, that such confidential executive session is (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create a conflict of interest and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed necessary to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Companypreserve attorney-client privilege, (ii) to undergo any training required by in the best interests of the Company and where the Strategic Investor has a direct interest in the subject matter under discussion that is divergent from the interests of the Company’s policies regarding FERC standards of conduct that are applicable to directors and , or (iii) necessary to comply discharge the directors' fiduciary duties; and provided further that the Observer agrees to hold in confidence and trust and to act in a fiduciary manner with any other regulatory requirements respect to all information so provided. The Company shall notify the extent applicable to Strategic Investor, in advance, of such Observer in his or her capacity as an Observerconfidential executive session and the specific rationale for making such meeting confidential.

Board Observer Rights. (ai) During such time as GS owns at least 2.5% of the Total Voting Power but less than 5% of the Total Voting Power, GS shall be If Ares is no longer entitled to nominate an Ares Director pursuant to Section 4.06(a), for so long as Ares or any of its Related Persons or Permitted Transferees remains a Stockholder, Ares shall have an Observer in addition the right to its appoint one (1) remaining nominee observer to the Board. During such time as Highstar owns at least 2.5% of Board (the Total Voting Power but less than 5% of the Total Voting Power, Highstar shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board“Ares Observer”). (bii) Without limiting If CPPIB is no longer entitled to nominate a CPPIB Director pursuant to Section 4.06(a), for so long as CPPIB or any other rights in this Agreementof its Related Persons or Permitted Transferees remains a Stockholder, including Section 3.2(aCPPIB shall have the right to appoint one observer to the Board (the “CPPIB Observer”). (iii) hereofFor so long as Xxxxx Xxxx is a consultant of the Company, until such Xxxxx Xxxx shall have the right to serve as an observer to the Board (the “Gold Observer” and, collectively with the Ares Observer and the CPPIB Observer, the “Board Observers”). The Company shall provide to each Board Observer copies of all documents pertaining to any meeting of the Board that are provided to each member of the Board and shall provide them at the same time as each Investor Shareholder ceases they are provided to own at least 1% of the Total Voting Power, such members; provided that the Company shall permit have the right to withhold any such Investor Shareholder materials from any Board Observer to the extent the Board determines, in its sole discretion, that such action is (i) necessary or advisable to preserve any evidentiary or attorney-client privilege or (ii) required to avoid a conflict of interest. Each Board Observer shall have an Observer the right to attend each meeting of the Board and each meeting of any committee thereof; provided, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a written opinion of counsel to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting in the same manner and at the same time as it shall send such notice to the directors or committee members, as the case may be. The Company shall also provide to each such Observer copies of all notices, reports, minutes and consents at the time and in the manner as they are members thereof; provided to the directors or committee members, as the case may be. (d) Notwithstanding any provision of this Section 3.2, that the Company shall have the right to exclude any Board Observer from access any such meeting to any Board or committee meeting or portion thereof or any materials distributed to any Board or committee members in the sole discretion of a majority of the members in attendance at such Board or committee meeting (or, with respect to materials to be provided in advance of any meeting, a majority of the members of extent the Board determines, in its sole discretion, that such action is (i) necessary or committee, as applicable)advisable to preserve any evidentiary or attorney-client privilege or (ii) required to avoid a conflict of interest. An Observer shall recuse himself or herself from any portion The rights of any Board or committee meeting if Observer to receive information and attend Board meetings are subject to such Board Observer (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that executing a confidentiality agreement in a form as may be determined by the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create a conflict of interest and (ii) abiding by such business opportunity is being discussed during such portion trading policies as are generally applicable to all directors, officers and employees of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, shall be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Company, (ii) to undergo any training required as may be adopted by the Board to ensure compliance with applicable securities laws. The Board Observers shall not be entitled to receive any compensation from the Company’s policies regarding FERC standards of conduct that are applicable to directors and (iii) to comply with any other regulatory requirements to the extent applicable to such Observer in his or her capacity as an Observer.

Board Observer Rights. (a) During such time as GS owns at least 2.5% of Xxxxxxx shall have the Total Voting Power but less than 5% of the Total Voting Power, GS shall be entitled right to have an Observer in addition to its one (1) remaining nominee to representative (the Board. During such time as Highstar owns at least 2.5% "Xxxxxxx Observer") attend meetings of the Total Voting Power but less than 5% Company's Board of the Total Voting PowerDirectors, Highstar shall be entitled to have an Observer in addition to its one (1) remaining nominee to the Board. (b) Without limiting or any other rights in this Agreement----------------- committee thereof, including Section 3.2(a) hereof, until such time as each Investor Shareholder ceases to own at least 1% of the Total Voting Power, and the Company shall permit the Xxxxxxx Observer to attend all such Investor Shareholder meetings as an observer. The Xxxxxxx Observer shall not have the right to have an vote on any matter presented to the Board or any committee thereof. The Company shall give the Xxxxxxx Observer attend written notice of each meeting of the Board and each meeting of Directors or any committee thereof; provided, that an Investor Shareholder may have more than one Observer if such Investor Shareholder delivers a thereof and all written opinion of counsel materials and other information given to the Company providing that more than one Observer is reasonably necessary to comply with VCOC requirements applicable to such Investor Shareholder Company's directors and its Affiliates. For the avoidance of doubt, the Investor Shareholders shall be entitled to have one or more Observers pursuant to this Section 3.2(b) to the extent necessary to comply with VCOC requirements, without regard to their respective percentage ownership, provided, that if an Investor Shareholder ceases to own at least 1% of the Total Voting Power, such Investor Shareholder shall be required to deliver a written opinion of counsel to the Company stating that such Observer or Observers are reasonably necessary for such Investor Shareholder to comply with VCOC requirements. (c) Each Observer shall have the same rights as a director (other than voting rights), including the right to participate in all deliberations of the Board and each committee thereof. Observers shall not be counted towards a quorum. The Company shall send to each such Observer the notice of the time and place of such meeting members in the same manner and at the same time as it shall send such notice notices, materials and other information are given to the directors or and committee members, as the case may be. The Company shall also provide to each reimburse the Xxxxxxx Observer for travel and other expenses in connection with such Observer copies of all notices, reports, minutes and consents at the time and in the manner as they are provided meetings to the same extent that the Company reimburses its directors or and committee members, as . If the case may be. (d) Notwithstanding Board of Directors or any provision committee thereof proposes to take any action by written consent in lieu of this Section 3.2a meeting, the Company shall have give written notice thereof to the right Xxxxxxx Observer prior to exclude any the effective date of such consent describing the nature and substance of such action. (b) Xxxxxxx shall cause the Xxxxxxx Observer from access to keep confidential all confidential information provided to it in its capacity as an observer pursuant to this Section 2; provided, however, that the Xxxxxxx Observer may disclose such confidential information to Xxxxxxx. Xxxxxxx shall also be bound by this Section 2(b) confidentiality obligation, except that Xxxxxxx may disclose such confidential information to its directors, officers, employees, consultants, advisors and professional representatives who need to know such information so long as prior to disclosing such confidential information to any Board or committee meeting or portion thereof or any materials distributed such person, Xxxxxxx shall inform such person of the confidential nature of such information and of Xxxxxxx'x obligations under this Section 2(b) and direct such person to treat such information confidentially. The confidentiality obligations contained in this Section 2(b) shall not apply to any Board information which (i) is or committee members in becomes generally available to and known by the sole discretion public (other than as a result of a majority disclosure by Xxxxxxx or the Xxxxxxx Observer) or (ii) is or becomes available to Xxxxxxx or the Xxxxxxx Observer on a non-confidential basis from a source other than the Company. (c) In the event that Xxxxxxx and its affiliates cease to hold, directly or indirectly, AA Preferred Stock, Warrants and Class A Common Stock representing at least fifteen percent (15%) of the members in attendance at such Board or committee meeting (or, with respect number of shares of Class A Common Stock into which the AA Preferred Stock acquired by Xxxxxxx pursuant to materials the Exchange Agreement and the Warrants acquired by Xxxxxxx pursuant to be provided in advance of any meeting, a majority of the members of the Board or committeeShare and Warrant Purchase Agreement, as applicable). An Observer shall recuse himself , may be converted or herself from any portion exercised, then the provisions of any Board or committee meeting if (i) such Observer has actual knowledge that the Investor Shareholder that selected such Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Observer has actual knowledge that the Company or any of its Subsidiaries is currently engaged in, pursuing or evaluating and the participation of such Observer would create a conflict of interest and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the avoidance of doubt, no Observer shall be deemed to be in breach of his or her obligations pursuant to this sentence so long as such Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Observers, in connection with exercising their rights under this Section 3.2, 2 shall terminate and be required (i) to execute and deliver to the Company a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Observer and to the Company, (ii) to undergo any training required by the Company’s policies regarding FERC standards of conduct that are applicable to directors and (iii) to comply with any other regulatory requirements to the extent applicable to such Observer in his no further force or her capacity as an Observereffect.