Common use of Board Observer Clause in Contracts

Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) to attend any meetings of the Board. The Board Observer shall be entitled to (x) receive notice of each meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Board.

Board Observer. Subject Unless the Company has already voluntarily allowed an individual to act as a nonvoting observer to the other terms and conditions Board of this Agreement, at any time after the Closing, and prior to the first appointment of a member Directors on behalf of the Board by Investor pursuant to this Article IIPurchaser, provided that if the Purchaser and its Affiliates in the aggregate hold at least 4.625% of the issued and outstanding Ordinary Shares (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number either in the form of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%ADSs) of the total number of Subject SharesCompany, as adjusted for any Recapitalization (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor Purchaser shall have the right, exercisable but not the obligation, to appoint an employee of the Purchaser or its Affiliates, or an advisor or consultant engaged by delivering notice the Purchaser or its Affiliates, to act as a nonvoting observer to the CompanyBoard of Directors, provided that the Purchaser’s right under this Section 4.5 shall terminate if at any time (i) the Purchaser and its Affiliates hold less than 3.083% of the then-issued and outstanding share capital of the Company or (ii) the Purchaser and its Affiliates hold less than 4.625% (but more than 3.083%) of the then-issued and outstanding share capital of the Company if, for purposes of sub-clause (ii), the reduction in such percentage is attributable to designate one the Purchaser or its Affiliates engaging in a Disposal of the Ordinary Shares (or ADSs), which Disposal results in the Purchaser and its Affiliates in the aggregate holding fewer number of ordinary shares than they originally held to initially attain the right to appoint a board observer pursuant to this Section 4.5, or the failure by the Purchaser (the “Board Observer”or its Affiliates) to attend any meetings participate in an offering or sale of Ordinary Shares extended to the BoardPurchaser (or its Affiliates) on a pro rata basis. The Board Observer Any individual to be appointed as a nonvoting observer shall have the skill and integrity appropriate to participate in a board meeting of a listed company in the life sciences sector. Any such observer shall be entitled to (x) receive notice of each meeting of all notices, written documents and materials provided to the Board in the directors at same form and manner time as given to the members of the Board of Directors and the same materials as to be invited to and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members all meetings of the Board of Directors and its committees in a nonvoting capacity. Any such observer shall execute a confidentiality agreement in a 18 reasonable form approved by the Board of Directors for such purpose. The Board of Directors shall be permitted to participate fully exclude such observer from attending any portion of any meetings and receiving any portion of any information, if attendance at such portion of the meeting or access to such information could adversely affect the attorney-client privilege between the Company and its counsel, result in all discussions among directors disclosure of trade secrets or a conflict of interest, or interfere with the fiduciary duties of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding of Directors. The Purchaser’s rights as set forth in this Section 2.14.5 shall terminate if the Purchaser’s rights in relation to the appointment of a director are exercisable pursuant to Section 4.6(a). For the avoidance of doubt, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold Purchaser’s rights as set forth in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates this Section 4.5 shall be subject reinstated if the Purchaser no longer has the right to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject appoint a director pursuant to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies4.6(a). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Board.

Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, So long as the DLJIP Entities shall beneficially owns (and has not gone below own in aggregate at any time) a least 51% of the number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) shares of the total number of Subject Shares, Senior Preferred Stock beneficially owned by them as adjusted for any Recapitalization (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) to attend any meetings of the Board. The Board Observer date hereof, (i) the Company shall be entitled to (x) receive give DLJ Investment Partners II, L.P. written notice of each meeting of the Board and each committee thereof at the same time and in the same form and manner as notice is given to the directors, (ii) the Company will permit one representative of the DLJIP Entities (a "BOARD REPRESENTATIVE") to attend and fully participate in all meetings of the Board and all committees thereof and (iii) the Company shall consult with the Board Representative with respect to any fundamental change in the nature of the Company's business; PROVIDED that the Board Representative shall have no right to vote on any resolutions or other matters upon which members of the Board may vote; and PROVIDED FURTHER that in the same case of telephonic meetings conducted in accordance with the Company's bylaws and applicable law, the Board Representative shall be given the opportunity to listen and fully participate in such telephonic meeting. The Board Representative shall also be provided with all written materials as and when provided to such members other information (both before or after a meetingincluding, including without limitation, copies of minutes thereof), including materials provided other than of meetings) given to directors in connection with a meeting, such meetings at the same time such materials and prior information are given to conducting the directors. If the Company proposes to take any business action by written resolution consent in lieu of a meeting of the Board or consentany committee thereof, the Company shall give such prior written notice thereof to the Board Observer Representative promptly following the effective date of such consent describing in reasonable detail the nature and a copy substance of such action. The Company shall pay the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members reasonable out-of-pocket expenses of the Board Representative incurred in connection with attending such board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Boardcommittee meetings.

Board Observer. Subject to So long as the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its AffiliatesMajority Owned Subsidiaries (as defined in Section 6.1(c)), beneficially owns (and has not gone below holds at any time) a least the number of Ordinary Shares that, in aggregate, is shares of the Company's Common Stock equal to or more than ninety ten percent (9010%) of the total number of Subject Shares, as shares of the Company's Common Stock and other voting securities outstanding immediately following the closing of the Purchase Agreement minus 100 shares (such number to be proportionately adjusted for any Recapitalization (the “Threshold Ownership Amount”stock splits, stock dividends, and similar events), and (b) there has been no Material Breach by the Company will permit a representative of the Investor, reasonably acceptable to the Company (the "Observer") to attend all meetings of the Company's Board of Directors (the "Board") (whether in person, telephonic or other) in a non-voting, observer capacity and shall provide to the Investor, concurrently with the members of the Board, notice of such meeting and a copy of all materials provided to such members. For so long as the Investor shall have be entitled to appoint an Observer pursuant to this section, the rightInvestor shall, exercisable by delivering notice written election delivered to the Company, be entitled to designate one observer a representative for appointment or election to the Board (the “Board Observer”) to attend any meetings "Representative"), in lieu of the observer contemplated above. Upon written request of the Investor, the Company shall use its reasonable best efforts to cause the representative designated by the Investor to be elected to the Board, including recommending to the stockholders of the Company that they vote for the election to the Board of the individual designated by the Investor. The Board Observer Company shall be entitled to (x) receive notice recuse the Representative or Observer, as the case may be, from portions of each any Board meeting and to redact portions of Board of Directors materials delivered to the Representative or Observer where and to the extent that a majority of the Board in (without the same form Representative or Observer present) determines a conflict of interest between the Company and manner as given to the members Investor is present (but not where the conflict is a conflict that is present for stockholders generally). The Company acknowledged and agrees that the Observer shall be acting for the benefit of the Board Investor, whose interests may not coincide with the interests of the Company and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meetingshareholders, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted deemed to have breached any duty of any kind to the Company or its shareholders as a result of his or her acting in any confidential communications a manner he or discussions with she deems to be in the interests of the Investor. Confidential information obtained by the Representative or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates Observer shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Board.governed by the

Board Observer. Subject to the other terms and conditions provisions of this Agreement, Section 5.4: (i) so long as MCP and its Affiliates own in the aggregate at any time least 66-2/3% of the Shares owned by MCP on the date of this Agreement (after the Closing, and prior giving effect to the first appointment transactions pursuant to the Recapitalization Agreement), such number to be adjusted for any stock split, combination or similar change with respect to the Common Stock, (A) a designee of a member MCP (reasonably acceptable to the Principal Stockholder) shall have the right to attend all meetings of the Board of Directors (other than Board of Directors committee meetings) in a nonvoting observer capacity, to receive notice of such meetings and to receive all minutes, consents and other materials, financial or otherwise, which the Company provides to its Board of Directors ("Observer Rights"), (B) MCP shall have reasonable access during normal business hours to consult and advise the management of the Company and (C) MCP shall have the right to inspect the books and records of the Company, at MCP's expense, during normal business hours; and (ii) so long as UBS and its Affiliates own in the aggregate at least 66-2/3% of the Shares owned by Investor UBS on the date of this Agreement (after giving effect to the transactions pursuant to this Article IIthe Recapitalization Agreement), provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a such number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as be adjusted for any Recapitalization stock split, combination or similar change with respect to the Common Stock, (A) a designee of UBS (reasonably acceptable to the “Threshold Ownership Amount”)Principal Stockholder) shall have Observer Rights, (B) UBS shall have reasonable access during normal business hours to consult and advise the management of the Company and (bC) there has been no Material Breach by the Investor, Investor UBS shall have the right, exercisable by delivering notice right to inspect the books and records of the Company, at UBS's expense, during normal business hours. In the event that OGF loses the right to designate select one observer (nominee to the “Board Observer”) to attend any meetings of Directors by reason of a decline in its Share ownership level as provided above and MCP and UBS each lose their Observer Rights by reason of a decline in its Share ownership level as provided above, and OF, MCP and UBS and their respective Affiliates in the aggregate own at least 33-1/3% of the Board. The Board Observer Shares owned collectively by OF, MCP, UBS and their respective Affiliates on the date of this Agreement (after giving effect to the transactions pursuant to the Recapitalization Agreement), such number to be adjusted for any stock split, combination or similar change with respect to the Common Stock, such Stockholders shall collectively be entitled to (xA) receive notice one designee (reasonably acceptable to the Principal Stockholder) with Observer Rights, (B) reasonable access during normal business hours to consult and advise the management of the Company and (C) the right to inspect the books and records of the Company, at such Stockholders' expense, during normal business hours. The Company may require as a condition precedent to granting Observer Rights under this Section 5.4 that each person proposing to attend any meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Board.and

Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization (the “Investor Threshold Ownership Amount”), Requirement is satisfied and (b) there has been no Material Breach by the Investor, the Investor shall have the right, exercisable by delivering notice to the Company, to designate one non-voting observer (the “Board Observer”) to attend any meetings of the BoardBoard (the “Board Observer Designation Right”). The Board Observer shall be entitled to (x) receive notice of each meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and the Investor shall cause the Board Observer, to hold in confidence all such information and materials provided to the Board Observer and all matters discussed at meetings of the Board in which the Board Observer participates (collectively, “Board Information”) (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information Board Information, on a need-to-know basis, to Investorthe Investor or its Affiliates (other than Ping An Life Insurance Company of China, Guarantor or their Affiliates Ltd. and its subsidiaries) and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates Observer shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they the Board Observer were Directors a Director of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies)Company. The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or be required to consent to any matters presented to the Board. For the avoidance of doubt, the Board Observer Designation Right shall be exclusive to the Investor and shall not be transferable from the Investor to any third party.

Board Observer. Subject to the other terms and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, The Issuer shall allow one representative (a “Board Observer”) jointly designated by Sankaty Advisors LLC (“Sankaty Advisors” and together with its Affiliates, beneficially owns “Sankaty”) and Falcon Strategic Partners III, LP (“Falcon Partners” and has not gone below at any time) a number of Ordinary Shares thattogether with its Affiliates, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board ObserverFalcon”) to attend any and participate in all meetings and other activities of the Board. The governing body (each governing body referred to herein as a “Board of Directors” and its members referred to as “Directors”) of Issuer and each of its Subsidiaries, including all committees and sub-committees thereof ; provided that such Board Observer shall be entitled to (x) receive notice of each meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company have no voting rights. The Issuer shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) give Sankaty Advisors and Falcon Partners notice of all such meetings, at the same time as furnished to the directors, managers, or partners, as applicable, of the applicable Board Observer shall agreeof Directors, and Investor shall cause (ii) provide to the Board Observer, whether at or in anticipation of a meeting, an action by written consent or otherwise, all notices, documents and information furnished to hold in confidence all information provided the Directors at the same time furnished to such Directors, (provided that iii) notify Sankaty Advisors and Falcon Partners of, and permit the Board Observer shall not be restricted in any confidential communications or discussions to participate by telephone in, all emergency meetings of each Board of Directors and all committees and sub-committees thereof, (iv) provide the Board Observer with or copies of the confidential provision minutes of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) all such Board Observer, Investor and Guarantor and their Affiliates shall be subject meetings at the time such minutes are furnished to the Company’s xxxxxxx xxxxxxx policies Directors and procedures as if they were all committees and sub-committees thereof, (v) cause regularly-scheduled meetings of the Board of Directors of the Company Issuer to be held no less frequently than quarterly with at least one such meeting in each Fiscal Year to be held in person and (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established vi) reimburse Sankaty and Falcon for all reasonable out of pocket expenses incurred by the Board Observer in accordance with Rule 10b5-1 of the Exchange Act in accordance connection with such policies). The person’s attendance at any meetings of each Board Observer shall not constitute a member of the Board Directors and shall not be entitled to vote on or consent to any matters presented to the Boardall committees and sub-committees thereof.

Board Observer. Subject to Following the other terms Closing and conditions of this Agreement, at any time after the Closing, and prior to the first appointment of a member of until the Board by Investor Seat Fall-Away, the Holders shall have the right to designate one individual (such designee or its replacement pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject SharesSection 6(b), as adjusted for any Recapitalization (the “Threshold Ownership Amount”)applicable, and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”), who shall initially be Xxxxxxx Xxxxxxx (or another designee reasonably acceptable to the Issuer) to attend any in person or join telephonically all meetings of the BoardBoard in a non-voting, observer capacity. From time to time, prior to the Board Seat Fall-Away, the Holders may remove and/or replace the Board Observer with another designee of the Holders. The Board Observer shall be entitled to (x) receive given notice of each meeting all meetings of the Board in substantially the same form manner and manner at substantially the same time as given notice is sent to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meetingBoard, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and receive a copy of all notices, agendas and other material, written information distributed to all the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at members of the Board Observer’s discretion, attend each Board meeting in substantially the same manner and at substantially the same time as given sent to the members of the Board and Board; provided that, as a condition to participate fully in all discussions among directors of receiving such information, the Board at such meetingObserver shall have entered into a mutually acceptable, customary confidentiality agreement with the Issuer with respect to all information so provided and agree to be bound to the Company covenants Issuer’s xxxxxxx xxxxxxx policy, in each case to take commercially reasonable measures to facilitate such attendance the extent and discussionon the same form required by all Board members; provided, thatfurther, notwithstanding this Section 2.1, that (i) the Issuer reserves the right to withhold any information and to exclude the Board Observer shall agree, and Investor shall cause from the applicable portion of a meeting if the Board Observerdetermines, in its sole judgment, that access to hold such information or attendance at such portion of the meeting would reasonably be likely to (A) result in confidence all information provided a conflict of interest, (provided B) adversely affect the attorney-client privilege between the Issuer and its counsel or (C) result in a violation of applicable Law and (ii) each party hereto acknowledges and agrees that the Board Observer shall not be restricted in may share any confidential communications information concerning the Issuer and its subsidiaries received by them from or discussions on behalf of the Issuer or its designated representatives with or the confidential provision of information to Investor, Guarantor or their Affiliates each Holder and their respective directors, officers, employees, accountants, agents, counsel its designated affiliates and other representatives) and representatives (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to such Holder’s and such affiliates’ and representatives’ obligation to maintain the Company’s xxxxxxx xxxxxxx policies confidentiality of such information and procedures as if they were Directors to not misuse such information in contravention of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policiesU.S. federal securities laws). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on or consent to any matters presented to the Board.Exchange Agreement Gogo Inc.

Board Observer. Subject Prior to the other terms and conditions of this AgreementBoard Trigger Event, at any time after the Closing, and prior to the first appointment Holders of a member majority in aggregate principal amount of the Board by Investor pursuant outstanding Notes shall have the right to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization designate one representative (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) to attend any all meetings of the BoardBoard of Directors of Holdings as a non-voting observer by notifying Holdings in writing or by directing the Trustee to notify Holdings in writing. The Board Observer shall be entitled to (xi) receive notice of each meeting all meetings of the Board of Directors of Holdings in the same form and manner as given that notice is provided to the members of the Board and the same of Directors of Holdings, (ii) receive all materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully of Directors of Holdings, (iii) attend (whether in person, by telephone, or otherwise) all discussions among directors meetings of the Board at such meetingof Directors of Holdings as a non-voting observer, and (iv) receive payment of reasonable and customary fees and reimbursement of reasonable out-of-pocket expenses paid to other members of the Company covenants to take commercially reasonable measures to facilitate such attendance and discussionBoard of Directors of Holdings; provided, thatthat for avoidance of doubt, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and shall not be entitled to vote on receive any compensation or consent indemnity from Holdings or the Company for acting in such capacity. The Holders of a majority in aggregate principal amount of the outstanding Notes may remove the Observer and replace the Observer in the event of the Observer’s removal, death or resignation by notifying the Company in writing or by directing the Trustee to any matters presented notify the Company in writing. Notwithstanding anything to the Boardcontrary contained herein, Holdings reserves the right to exclude any such Observer from the relevant portion of any meeting or any delivery of any particular materials if Holdings reasonably believes that: (i) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials would likely cause Holdings or any of its subsidiaries to lose the benefit of protection in respect of what would otherwise be privileged legal communications; (ii) attendance at such portion of such meeting will include discussions of matters with respect to which Holdings or any of its subsidiaries, on the one hand, and the Holders or the Observer, on the other, are directly adverse; (iii) upon the advice of counsel, attendance at such portion of such meeting or receipt of such materials is prohibited by a confidentiality agreement with a third party that is binding on Holdings or any of its subsidiaries; or (iv) attendance at such portion of such meeting or receipt of such materials would require Holdings to publicly disclose any non-public information in accordance with applicable law; provided, that with respect to the provisions in clause (iii) and (iv), Holdings shall not have the right to exclude the Observer if the Observer enters into a confidentiality agreement reasonably acceptable to Holdings and the Observer pursuant to which the Observer agrees to keep the matters discussed at such portion of such meeting or such particular materials, as applicable, confidential (to the extent required by such confidentiality agreement, in the case of clause (iii), or to the extent required so that the Company need not make such public disclosure in the case of clause (iv)). Holdings will provide reasonable advance notice if it intends to exclude the Observer from attending any portion of any meeting or from receiving any particular materials, describing the basis for such exclusion, and shall cooperate with the Observer in good faith to limit to the maximum extent reasonably possible the degree to which the Observer will be excluded from such portions of such meetings or receiving such materials.

Board Observer. Subject to Beginning on the other terms Closing and conditions of this Agreementuntil all Indebtedness (including, at any time after the Closingwithout limitation, all principal of, premium, if any, and prior interest) and other amounts owing under the Notes has been paid in full Purchaser shall (a) be entitled to have an observer, who initially shall be Dxxxxxx Xxxxxxxx, attend and participate in all meetings of the first appointment Board of a Directors of GFN (or any successor thereto) and committees thereof, and such observer shall have all rights (other than voting rights but including informational rights) that any member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and of Directors of GFN has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to his or more than ninety percent (90%) of the total number of Subject Shares, her role as adjusted for any Recapitalization (the “Threshold Ownership Amount”)such, and (b) there promptly receive any and all materials and other information (such as notices of meetings, reports, board packages, and financial statements and reports) provided to, or that may be provided to, any member of the Board of Directors of GFN. GFN shall promptly take any and all actions necessary to comply with the obligations in this Section 9.18. Purchaser agrees that during the period that a representative of Purchaser has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) rights to attend any meetings of the Board. The GFN Board Observer shall be entitled to (x) receive notice of each meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meetingan observer, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates Purchaser shall be subject to and shall comply with the Company’s xxxxxxx xxxxxxx policies GFN Ixxxxxx Xxxxxxx and procedures Disclosure Policy, including, without limitation, all trading windows and black out periods. Notwithstanding the foregoing, the representative of Purchaser acting as if they were Directors of the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policies). The Board Observer shall not constitute a member of the Board and observer shall not be entitled to vote on be present at any meeting or consent discussion, or receive board package or other materials that involve matters between GFN and the Purchaser (or its Affiliates) or to participate in discussions involving third party claims (or potential third party claims) against the GFN or its Subsidiaries at which legal counsel for GFN or any matters presented of its Subsidiaries is present and the attendance by the Purchaser would, in the opinion of legal counsel, cause GFN or any of its Subsidiaries to lose the Boardattorney-client privilege with respect to such discussions.

Board Observer. Subject to the other terms Buyer covenants and conditions of this Agreementagrees that, at any time from and after the ClosingClosing Date, so long as the parties to whom the NBEV Shares are issued at Closing and prior to their Affiliates own at least 50,000 NBEV Shares in the first appointment of a member of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization a representative designated by Seller (the “Threshold Ownership AmountSeller Representative”) may be present at all meetings of Buyer’s Board of Directors or any committee thereof, including any telephonic meetings, and that Buyer will give the Seller Representative notice of such meetings, by fax or by such other means as such notices are delivered to Buyer’s directors and Board of Directors committee members at the same time notice is provided or delivered to the directors or committee members; provided, however, the Seller Representative may be excluded from any meeting or portion thereof if Buyer reasonably believes, upon advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege (a “Limiting Condition”). All information, documents, financial statements and (b) there has been no Material Breach by the Investorother materials that are sent, Investor shall have the rightgiven or otherwise provided to Buyer’s directors or Board of Directors committee members in their capacity as such, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) to attend any meetings of the Board. The Board Observer shall be entitled to (x) receive notice of each whether or not in connection with a meeting of the Board in the same form and manner as given to the members of the Board and the same materials as and when provided to such members (both before Directors or after a meetingcommittee thereof, including copies of minutes thereof)all minutes, including materials provided consents, correspondence and other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company material shall give such prior notice be sent to the Board Observer and a copy of Seller Representative simultaneously by Buyer by means reasonably designed to insure timely receipt by the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussionSeller Representative; provided, thathowever, notwithstanding this Section 2.1, (i) that Buyer may exclude from the Board Observer shall agree, and Investor shall cause the Board Observer, to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject materials sent to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors Seller Representative any materials that Buyer reasonably believes, upon advice of counsel, should be excluded to preserve the Company (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5attorney-1 of the Exchange Act in accordance with such policies)client privilege. The Board Observer Seller Representative shall not constitute a member maintain the confidentiality of the Board and shall not be entitled all materials delivered to vote on or consent to any matters presented to the Boardit under his Section 6.11.

Board Observer. Subject to Following the other terms and conditions execution of this Agreement, at any time after the Closinginvestment agreements in accordance with Section 6.1(a) (Equity Investment), and prior for so long as Astellas or its Affiliates continues to the first appointment own 100% of PTI’s aggregate issued and outstanding capital stock or instruments convertible or exercisable into capital stock (all on an as-converted basis) issued to Astellas in accordance with Section 6.1(a) (Equity Investment), PTI will permit a member representative of the Board by Investor pursuant to this Article II, provided that (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time) a number of Ordinary Shares that, in aggregate, is equal to or more than ninety percent (90%) of the total number of Subject Shares, as adjusted for any Recapitalization Astellas (the “Threshold Ownership Amount”), and (b) there has been no Material Breach by the Investor, Investor shall have the right, exercisable by delivering notice to the Company, to designate one observer (the “Board Observer”) to attend any all meetings of the Board. The its Board Observer shall be entitled of Directors in a nonvoting observer capacity and, in this respect, will give such representative copies of all notices, minutes, consents, and other materials that it provides to all its outside (xnon-employee) receive notice of each meeting of the Board in directors at the same form time and manner as given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given provided to such directors. Notwithstanding the members of foregoing, the Board and to participate fully Observer right granted in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, 6.1(b) (i) the Board Observer shall agree, and Investor shall cause the Board Observer) will terminate in the event that (1) Astellas ceases to hold 100% of PTI’s aggregate issued and outstanding capital stock or instruments convertible or exercisable into capital stock (all on an as-converted basis) issued to Astellas in accordance with Section 6.1(a) (Equity Investment), or (2) there occurs a Change of Control of PTI or an initial public offering of PTI securities. The Observer will execute a customary CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO AN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. Confidential confidentiality agreement pursuant to which he or she would agree to hold in confidence all information provided to him or her in his or her capacity as an Observer. PTI may withhold any information and exclude the Observer from any meeting or portion thereof if PTI reasonably determines in good faith that access to such information or attendance at such meeting (provided that i) could adversely affect the Board Observer shall not be restricted in any confidential communications attorney-client privilege between PTI and its counsel, or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) may result in disclosure of trade secrets. In addition, PTI may withhold any information and exclude the Observer from any meeting or portion thereof for reasonable competitive considerations, such Board as where PTI reasonably determines in good faith that there is a conflict of interest between the Astellas (or the Observer, Investor ) and Guarantor and their Affiliates shall be subject PTI with respect to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors subject matter of the Company such information or that is to be discussed at such meeting (it being understood that, subject to Section 5.1 hereof, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act in accordance with such policiesportion thereof). The Board Furthermore, PTI reserves the right to exclude the Observer shall not constitute a member from any executive, audit, or compensation committee meetings of the Board and shall not be entitled to vote on or consent to any matters presented to the Boardof Directors.

Board Observer. Subject to During the other terms period commencing on the Closing and conditions ending on the earlier of this Agreement, at any time after (i) the Closing, and prior to the first appointment occurrence of a member Change of Control (as defined below) and (ii) the Board by Investor pursuant to this Article II, provided date that Boehringer Ingelheim International GmbH (a) Investor, together with its Affiliates, beneficially owns (and has not gone below at any time“BI”) a number of Ordinary Shares that, in aggregate, is equal to or more holds less than ninety percent (90%) 10% of the total number Company’s Common Stock (which shall be calculated by including in the amount of Subject Shares, as adjusted for Common Stock held by BI any Recapitalization (Warrant Shares issuable upon exercise of any portion of the “Threshold Ownership Amount”Pre-Funded Warrant issued to BI and not yet exercised by BI), and (b) there has been no Material Breach by the Investor, Investor then BI shall have the rightright to designate one (1) natural person, exercisable by delivering notice reasonably acceptable to the Company, to designate one be present and participate in a non-voting, observer capacity at all meetings of the board of directors of the Company or any committee thereof, including any telephonic or electronic meetings (such individual, the “Board Observer”); provided, for the avoidance of doubt, that in no event shall the Board Observer: (i) be deemed to attend be a member of the board of directors or any committee thereof or (ii) have the right to vote on, consent to or veto any matter, motion or resolution presented to the board of directors or any committee thereof or propose or offer any motions or resolutions to the board of directors or any committee thereof. Any materials that are sent by the Company to the members of the board of directors in their capacity as such shall be sent to the Board Observer substantially simultaneously by means reasonably designed to ensure timely receipt by the Board Observer, and the Company will give the Board Observer notice of such meetings, by the same means as such notices are delivered to the members of the board of directors and at the same time as notice is provided or delivered to the board of directors; provided, that the Board Observer agrees to be subject to the Company’s Code of Ethics and Business Conduct and other policies and procedures to the same extent as a member of the board of directors, to hold in confidence and trust, to act in a fiduciary manner with respect to and not to disclose any information provided to or learned by them acting in such capacity, whether in connection with the Board Observer’s attendance at meetings of the Boardboard of directors or any committee thereof, in connection with the receipt of materials delivered to the board of directors or any committee thereof or otherwise. Notwithstanding the provisions of this Section 4.6, the Company reserves the right to exclude the Board Observer from any meeting of the board of directors, or a portion thereof, and to redact portions of any materials delivered to the Board Observer, where and to the extent that the Company reasonably believes that (i) withholding such information or excluding the Board Observer from attending such meeting of the board of directors, or a portion thereof, is reasonably necessary to preserve attorney-client, work product or similar privilege between the Company, its board of directors or any committee thereof, on the one hand, and its counsel, on the other, with respect to any matter; (ii) withholding such information or excluding the Board Observer from attending such meeting of the board of directors, or a portion thereof, is reasonably necessary to protect trade secrets or to comply with the terms and conditions of confidentiality agreements between the Company and any third parties; (iii) such board materials or any meeting of the board of directors or committee thereof relates directly to the Company’s relationship, contractual or otherwise, with BI, or (iv) because the board of directors of the Company has determined in good faith that there exists, with respect to the subject of such deliberation or such information, an actual or potential conflict of interest between BI and the Company. The Board Observer shall be entitled to (x) receive notice of each meeting of the Board in use the same form degree of care to protect the Company’s confidential and manner proprietary information as given BI uses to protect confidential and proprietary information of like nature, but in no circumstances with less than reasonable care. Notwithstanding the members of the Board and the same materials as and when provided foregoing, BI’s right to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and prior to conducting any business by written resolution or consent, the Company shall give such prior notice to the Board Observer and a copy of the proposed resolution or consent, any exhibits, annexes or schedules thereto and any related materials and (y) at the Board Observer’s discretion, attend each Board meeting in the same manner as given to the members of the Board and to participate fully in all discussions among directors of the Board at such meeting, and the Company covenants to take commercially reasonable measures to facilitate such attendance and discussion; provided, that, notwithstanding this Section 2.1, (i) designate the Board Observer shall agree, and Investor shall cause be suspended for so as long as the Board ObserverObserver serves as a director on the board of directors of the Company. For the avoidance of doubt, to hold in confidence all information provided (provided that the Board Observer shall not be restricted compensated by the Company in such capacity but may be eligible for reimbursement for reasonable and documented out-of-pocket expenses in accordance with any confidential communications or discussions with or the confidential provision of information to Investor, Guarantor or their Affiliates and their respective directors, officers, employees, accountants, agents, counsel and other representatives) and (ii) such Board Observer, Investor and Guarantor and their Affiliates shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures as if they were Directors applicable policy of the Company (it being understood thatthen in effect, subject to Section 5.1 hereofprovided, such policies or procedures shall not restrict Investor or its Affiliates from purchasing ADSs or Ordinary Shares if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of however, that the Exchange Act in accordance with such policies). The Board Observer shall has not constitute a member of the Board and shall not be entitled to vote on or consent to been otherwise reimbursed by BI for any matters presented to the Boardsuch expenses.