Common use of Board Observer Clause in Contracts

Board Observer. Each Loan Party will continue to permit the Agents to have a representative (the “Board Observer”) present (whether in person or by telephone) in an observer capacity at all duly convened meetings of the Board of Directors or managers of each Loan Party and any committee meetings thereof. The Board Observer must be approved by the U.S. Borrower (such approval not to be unreasonably withheld, conditioned or delayed). Each Loan Party shall provide the Board Observer representative with a notice and agenda of each duly convened meeting of the Board of Directors and any committee thereof at least seven (7) days (or such lesser time as agreed to by the Board Observer) in advance of such meeting, and all of the information and other materials that are distributed to the Board of Directors or any committee thereof, as applicable, at the same time and in the same manner as such notices, agendas, information and other materials are provided to the members of the Board of Directors or any committee thereof; provided, however, that the Loan Parties reserve the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if (x) access to such information or attendance at such meeting would, upon advice of the Loan Parties’ counsel, adversely affect the attorney-client privilege between the Loan Parties and their counsel or (y) in the reasonable judgment of the Loan Parties, access to such information or attendance at such meeting could result in a conflict of interest between the Secured Parties and the Loan Parties. The Loan Parties shall reimburse the Board Observer for the reasonable out-of-pocket expenses (including travel expenses) incurred by the Board Observer in connection with the Board Observer attending any meetings of the Board of Directors or any committees thereof. The Parent shall hold at least one meeting of its Board of Directors each month.

Board Observer. Each Loan Party will continue (a) For so long as it holds at least 966,933 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), JAFCO shall be entitled to permit the Agents designate one individual to have a representative (the “Board Observer”) present (whether in person attend and observe any regular or by telephone) in an observer capacity at all duly convened meetings of the Board of Directors or managers of each Loan Party and any committee meetings thereof. The Board Observer must be approved by the U.S. Borrower (such approval not to be unreasonably withheld, conditioned or delayed). Each Loan Party shall provide the Board Observer representative with a notice and agenda of each duly convened special meeting of the Board of Directors and any committee thereof at least seven (7) days (or such lesser time as agreed shall be entitled to by the Board Observer) in advance of such meeting, and receive all of the information and other materials that are distributed to the Board of Directors or any committee thereof, as applicable, at the same time and in the same manner as such notices, agendas, information and other materials are provided to the members of the Board original distribution of Directors or any committee thereofsuch information; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Loan Parties reserve Company reserves the right to withhold any information and to exclude the Board Observer such representative from any meeting or portion thereof for legitimate corporate purposes, including, but not limited to, if (x) access to such information or attendance at such meeting would, upon advice of the Loan Parties’ counsel, adversely affect the attorney-client privilege between the Loan Parties and their counsel or (y) in the reasonable judgment of the Loan Parties, access to such information or attendance at such meeting could affect any evidentiary privilege between the Company and its advisors or would result in disclosure of trade secrets to such representative. (b) For so long as it holds at least 2,056,090 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), Paladin shall be entitled to designate one individual to attend and observe any regular or special meeting of the Board of Directors and shall be entitled to receive all information distributed to the Board of Directors at the time of the original distribution of such information; provided, however, that such representative shall agree to hold in confidence and trust and to act in a conflict of interest fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof for legitimate corporate purposes, including, but not limited to, if access to such information or attendance at such meeting could affect any evidentiary privilege between the Secured Parties Company and its advisors or would result in disclosure of trade secrets to such representative. (c) For so long as it holds at least 488,396 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the Loan Partieslike), Montagu Newhall shall be entitled to designate one individual to attend and observe any regular or special meeting of the Board of Directors and shall be entitled to receive all information distributed to the Board of Directors at the time of the original distribution of such information; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof for legitimate corporate purposes, including, but not limited to, if access to such information or attendance at such meeting could affect any evidentiary privilege between the Company and its advisors or would result in disclosure of trade secrets to such representative. (d) For so long as it holds at least 441,176 shares of Preferred Stock (as adjusted for stock splits, stock dividends, combinations and the like), the New Investor shall be entitled to designate one individual to attend and observe any regular or special meeting of the Board of Directors (or any committee thereof) and shall be entitled to receive all information distributed to the Board of Directors (or committee, as applicable) at the time of the original distribution of such information; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof for legitimate corporate purposes, including, but not limited to, if access to such information or attendance at such meeting would result in the disclosure of trade secrets to such representative or would result in the loss or waiver of the attorney-client privilege between the Company and its counsel. The Loan Parties Company shall reimburse the Board Observer New Investor for the all reasonable out-of-pocket expenses (including travel expenses) incurred by the Board Observer such observer in connection with the Board Observer attending any meetings of the Board of Directors (or any committees committee thereof. The Parent shall hold at least one meeting of its Board of Directors each month) in accordance with the Company’s travel expense reimbursement policies.

Board Observer. Each Loan Party will continue Subject to permit the Agents provisions of this Section 5.4: (i) so long as MCP and its Affiliates own in the aggregate at least 66-2/3% of the Shares owned by MCP 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, (A) a designee of MCP (reasonably acceptable to the Principal Stockholder) shall have a representative (the “Board Observer”) present (whether in person or by telephone) in an observer capacity at right to attend all duly convened 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 managers 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 UBS 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, (A) a designee of UBS (reasonably acceptable to the 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 (C) UBS shall have the 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 select one nominee to the Board of Directors by reason of a decline in its Share ownership level as provided above and MCP and UBS each Loan Party 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 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 committee meetings thereofstock split, combination or similar change with respect to the Common Stock, such Stockholders shall collectively be entitled to (A) 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 Board Company may require as a condition precedent to granting Observer must be approved by the U.S. Borrower (such approval not Rights under this Section 5.4 that each person proposing to be unreasonably withheld, conditioned or delayed). Each Loan Party shall provide the Board Observer representative with a notice and agenda of each duly convened attend any meeting of the Board of Directors and any committee thereof at least seven (7) days (or such lesser time as agreed to by the Board Observer) in advance of such meeting, and all of the information and other materials that are distributed to the Board of Directors or any committee thereof, as applicable, at the same time and in the same manner as such notices, agendas, information and other materials are provided to the members of the Board of Directors or any committee thereof; provided, however, that the Loan Parties reserve the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if (x) access to such information or attendance at such meeting would, upon advice of the Loan Parties’ counsel, adversely affect the attorney-client privilege between the Loan Parties and their counsel or (y) in the reasonable judgment of the Loan Parties, access to such information or attendance at such meeting could result in a conflict of interest between the Secured Parties and the Loan Parties. The Loan Parties shall reimburse the Board Observer for the reasonable out-of-pocket expenses (including travel expenses) incurred by the Board Observer in connection with the Board Observer attending any meetings of the Board of Directors or any committees thereof. The Parent shall hold at least one meeting of its Board of Directors each month.and

Board Observer. Each Loan Party will continue to permit the Agents to have a representative (the “Board Observer”) present (whether in person or by telephone) in an observer capacity at all duly convened meetings of the Board of Directors or managers of each Loan Party and any committee meetings thereof. The Board Observer must be approved by the U.S. Borrower (such approval not to be unreasonably withheld, conditioned or delayed). Each Loan Party shall provide the Board Observer representative with a notice and agenda of each duly convened meeting of the Board of Directors and any committee thereof at least seven (7) days (or such lesser time as agreed to by the Board Observer) in advance of such meeting, and all of the information and other materials that are distributed to the Board of Directors or any committee thereof, as applicable, at the same time and in the same manner as such notices, agendas, information and other materials are provided to the members of the Board of Directors or any committee thereof; provided, however, that the Loan Parties reserve the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if (x) access to such information or attendance at such meeting would, upon advice of the Loan Parties’ counsel, adversely affect 9700767 the attorney-client privilege between the Loan Parties and their counsel or (y) in the reasonable judgment of the Loan Parties, access to such information or attendance at such meeting could result in a conflict of interest between the Secured Parties and the Loan Parties. The Loan Parties shall reimburse the Board Observer for the reasonable out-of-pocket expenses (including travel expenses) incurred by the Board Observer in connection with the Board Observer attending any meetings of the Board of Directors or any committees thereof. The Parent shall hold at least one meeting of its Board of Directors each month.

Board Observer. Each Loan Party will continue to permit the Agents to have a representative (the “Board Observer”) present (whether in person or by telephone) in an observer capacity at all duly convened meetings of the Board of Directors or managers of each Loan Party and any committee meetings thereof. The Board Observer must be approved by the U.S. Borrower (such approval not to be unreasonably withheld, conditioned or delayed). Each Loan Party shall provide the Board Observer representative with a notice and agenda of each duly convened meeting of the Board of Directors and any committee thereof at least seven (7) days (or such lesser time as agreed to by the Board Observer) in advance of such meeting, and all of the information and other materials that are distributed to the Board of Directors or any committee thereof, as applicable, at the same time and in the same manner as such notices, agendas, information and other materials are provided to the members of the Board of Directors or any 10083707 committee thereof; provided, however, that the Loan Parties reserve the right to withhold any information and to exclude the Board Observer from any meeting or portion thereof if (x) access to such information or attendance at such meeting would, upon advice of the Loan Parties’ counsel, adversely affect the attorney-client privilege between the Loan Parties and their counsel or (y) in the reasonable judgment of the Loan Parties, access to such information or attendance at such meeting could result in a conflict of interest between the Secured Parties and the Loan Parties. The Loan Parties shall reimburse the Board Observer for the reasonable out-of-pocket expenses (including travel expenses) incurred by the Board Observer in connection with the Board Observer attending any meetings of the Board of Directors or any committees thereof. The Parent shall hold at least one meeting of its Board of Directors each month.