Common use of Board Observer Clause in Contracts

Board Observer. For so long as any shares of Series B Preferred Stock are outstanding, the holders of at least a majority of the voting power of the Series B Preferred Stock shall also be entitled to appoint one non-voting observer of the Board of Directors at each meeting (the “Series B Observer”). The Series B Observer shall be sent notice of the time and place of each meeting of the Board of Directors of the Company or any subsidiary of the Company or any audit, compensation or executive committee thereof in the same manner and at the same time as notice is sent to members of the relevant board and any such committees thereof and shall be sent copies of all notices, reports, minutes, consents and other documents (including all monthly, quarterly and annual financial statements) at the time and in the manner as they are provided to the other members of the relevant board and/or any audit, compensation or executive committees thereof. Notwithstanding the foregoing, the Series B Observer may be excluded from any meeting (or portion thereof) of the Board of Directors or any audit, compensation or executive committees thereof and materials provided to the participants in such meetings may be withheld from the Series B Observer or redacted before being provided to the Series B Observer if: (a) the reason for such exclusion, withholding or redaction is primarily (i) to preserve an attorney-client privilege available to the Company that would be lost absent such exclusion, withholding or redaction, (ii) to prevent the disclosure of a trade secret or (iii) that the Series B Observer represents a competitor of the Company, in each case as is determined in good faith by such board or committee thereof. The Series B Observer agrees to hold in confidence and trust and to act in a fiduciary duty with respect to all information provided to it pursuant to its rights under this Agreement or in its capacity as a Series B Observer.

Board Observer. For so long as any shares of Series B Preferred Stock are outstanding(a) Subject to Section 2(b), during the Standstill Effectiveness Period, the holders of at least a majority of Investor shall have the voting power of right to designate one individual (such designee or its replacement pursuant to this Section 2, as applicable, the Series B Preferred Stock shall also be entitled “Board Observer”) to appoint one non-voting observer attend in person or join telephonically all meetings of the Board of Directors at each meeting (in a non-voting, observer capacity; provided that, unless previously given permission by the “Series B Observer”). The Series B Company, the Board Observer shall be sent notice of the time and place of each may not participate in any meeting of the Board of Directors while physically present in the United States unless at least one member of the Company or any subsidiary Board is participating in such meeting while physically present in the United States. The Board Observer shall be given notice of all meetings of the Company or any audit, compensation or executive committee thereof Board in substantially the same manner and at substantially the same time as notice is sent to the members of the relevant board and any such committees thereof Board, and shall be sent copies receive a copy of all notices, reports, minutes, consents agendas and other documents (including material, written information distributed to all monthly, quarterly and annual financial statements) at the time and in the manner as they are provided to the other members of the relevant board and/or any auditBoard in substantially the same manner and at substantially the same time as sent to the members of the Board; provided that, compensation or executive committees thereof. Notwithstanding the foregoingas a condition to receiving such information, the Series B Board Observer may be excluded shall have entered into a mutually acceptable, customary confidentiality agreement with the Company with respect to all information so provided; provided, further, that the Company reserves the right to withhold any information and to exclude the Board Observer from any the applicable portion of a meeting (if the Board determines, in the exercise of its reasonable discretion, that access to such information or attendance at such portion thereof) of the Board of Directors or any audit, compensation or executive committees thereof and materials provided to the participants meeting would result in such meetings may be withheld from the Series B Observer or redacted before being provided to the Series B Observer if: (a) the reason for such exclusion, withholding or redaction is primarily (i) to preserve a loss of an attorney-client privilege available to the Company that would be lost absent such exclusion, withholding or redaction, attorney work product protection or (ii) a conflict of interest (including information or meetings with respect to prevent any action to be taken, or any determination to be made, by the disclosure Board regarding any transaction, agreement or dispute with the Investor or any of its Affiliates or any Related Persons). (b) Notwithstanding the provisions of this Section 2, the Investor shall not be entitled to designate a trade secret or (iiiparticular Board Observer pursuant to Section 2(a) in the event that the Series B Observer represents a competitor of the Company, in each case as is determined Board reasonably determines in good faith by that the designation of such board individual would cause the Company to be not in compliance with applicable law or committee thereofregulation. The Series B Observer agrees In such case described in the immediately preceding sentence, the Investor shall withdraw the designation of such proposed designee and, subject to hold in confidence and trust and Section 2(a), shall be permitted to act in designate a fiduciary duty with respect replacement therefor (which replacement designee shall also be subject to all information provided to it pursuant to its rights under the requirements of this Agreement or in its capacity as a Series B ObserverSection 2(b)).