Common use of Board Observers Clause in Contracts

Board Observers. Rio Tinto so long as its Percentage Interest equals or exceeds 10 percent, and FSI so long as (a) its Percentage Interest equals or exceeds 7.5 percent or (b) it continues to hold at least the number of Shares it held as of immediately following the effective time of IPO (including all Shares acquired by the FSI Shareholder from the Apollo Shareholders, the Rio Tinto Shareholder and/or the underwriters in the IPO in accordance with the Share Purchase Agreement, dated as of [—], 2013, between the FSI Shareholder, the Apollo Shareholders and the Rio Tinto Shareholder), and subject to equitable adjustment for stock splits, stock dividends, combinations, reorganizations or similar events, shall each be entitled upon written request to appoint one individual as an observer to attend all meetings of the Board of Directors (the “Observer”), which individual shall be reasonably acceptable to the Board (such approval not to be unreasonably withheld or delayed). The Company shall give each Observer written notice of each meeting of the Board of Directors, together with any materials provided to members of the Board at the same time such materials and information are given to the members of the Board and shall permit each Observer to attend as an observer at all meetings (including executive sessions) thereof. Notwithstanding the foregoing, the Company or the Board shall have the right to withhold any information and to exclude any Observer from any meeting or portion thereof if the Board reasonably determines in good faith, after consultation with counsel, that attendance by such Observer would conflict with requirements under applicable Law or would be necessary to protect the attorney-client privilege between the Company and counsel. Each Investor shall cause its Observer to agree to hold in confidence and to act in a fiduciary manner with respect to all information provided to such Observer. No Observer shall have any right to vote on any matter presented to the Board or any committee thereof.

Board Observers. Rio Tinto (i) Provided that it complies with the eligibility conditions set forth in the Monitoring Deed and, in any case, for so long as its Percentage Interest equals or exceeds 10 percent, and FSI so long as (a) its Percentage Interest equals or exceeds 7.5 percent or (b) it continues to hold individual Pro Rata Proportion is at least the number of Shares it held as of immediately following the effective time of IPO (including all Shares acquired by the FSI 5%, each Key Investor Shareholder from the Apollo Shareholders, the Rio Tinto Shareholder and/or the underwriters in the IPO in accordance with the Share Purchase Agreement, dated as of [—], 2013, between the FSI Shareholder, the Apollo Shareholders and the Rio Tinto Shareholder), and subject to equitable adjustment for stock splits, stock dividends, combinations, reorganizations or similar events, shall each be entitled upon written request to appoint one individual as an observer to attend all meetings of the Board of Directors (the “Observer”), which individual shall be reasonably acceptable to the Board (such approval not to be unreasonably withheld or delayed). The Company shall give each Observer written notice of each meeting of the Board of Directors, together with any materials provided to members of the Board at the same time such materials and information are given to the members of the Board and shall permit each Observer to attend as an observer at all meetings (including executive sessions) thereof. Notwithstanding the foregoing, the Company or the Board shall have the right to withhold any information and nominate one (1) Board observer. This regardless of whether or not they have director nomination or co-nomination rights pursuant to exclude any Observer from any meeting this Agreement. (ii) The Key Executive Parties, collectively, shall have the right to nominate one (1) Board observer for so long as their aggregate Pro Rata Proportion is, at least, 5%. This regardless of whether or portion thereof if not they have director nomination or co-nomination rights pursuant to this Agreement. Any observer appointed to the Board must have an employment or equivalent relationship of dependency with his/her respective nominating Shareholder or any of its Affiliates. Observers shall be entitled to receive the same notices and documentation as the directors in relation to the meetings to which the observer is entitled to observe and shall only have the right to attend any Board meetings, but will not be entitled to vote or participate in any other manner. The Board, at any moment, acting reasonably determines and in good faith, after consultation may determine that any or all of the observers are not permitted to attend a certain Board meeting, and/or receive any or all of the notices and documentation related to a certain Board meeting, if that may be required or convenient for reasons of corporate benefit (interés social) of the Company, including due to actual or potential conflicts of interests affecting one or more of the observers or preservation of legal privilege. Observers may not carry out, or suggest that any person carries out, operations with counsel, that attendance by such Observer would conflict with requirements under applicable Law or would be necessary to protect the attorney-client privilege between securities of the Company or Group companies, on which they have privileged information as a result of their condition of observers. Observers may not use non-public information of the Company or the Group for private purposes, unless (a) the use of such information does not breach securities market regulations; (b) its use does not cause any harm whatsoever to the Company or the Group; and counsel. Each Investor shall cause its Observer to agree to (c) the Company or a Group company does not hold in confidence and to act in a fiduciary manner right of exclusivity or similar legal position with respect to the information to be used, unless expressly authorized in writing by the Board. Without prejudice of the foregoing, observers will at all information times abide by the same rules of conduct and confidentiality established by applicable laws for the directors and, in particular, those established in the Company’s internal rules of conduct, provided that this provision shall always be understood in the sense that the observers will be subject to no more and no less obligations or restrictions than those imposed on directors. Observers and (in respect of such Observer. No Observer observers) their appointing Shareholders, shall have not be entitled to any right to vote on kind of benefit, payment, remuneration, indemnification, compensation or reimbursement from the Company, including for costs and expenses, of any matter presented to the kind, incurred for attending Board meetings or any committee thereofotherwise in connection with their appointment as such.

Board Observers. Rio Tinto so long as its Percentage Interest equals Any Shareholder with one or exceeds 10 percentmore Nomination Rights shall have the right, and FSI so long as exercisable by delivering written notice to the Company (a) its Percentage Interest equals or exceeds 7.5 percent or (b) it continues to hold at least the number of Shares it held as of immediately following the effective time of IPO (including all Shares acquired by the FSI Shareholder from the Apollo Shareholders, the Rio Tinto Shareholder and/or the underwriters in the IPO in accordance with the Share Purchase Agreement, dated as of [—], 2013, between the FSI Shareholder, the Apollo Shareholders and the Rio Tinto ShareholderBoard), and subject to equitable adjustment for stock splitsthe prior written consent of the Board (which shall not be unreasonably withheld), stock dividends, combinations, reorganizations or similar events, shall each be entitled upon written request to appoint designate one individual as an nonvoting observer (a “Board Observer”) to attend all meetings of the Board and any committees thereof and any boards of Directors directors (or similar governing body) of any member of the “Company Group and any committee thereof; provided that, in the event such consent is not given for a Board Observer”), such Shareholder may designate a different Person as a Board Observer, subject to the prior written consent of the Board, which individual shall not be unreasonably withheld. In connection with the designation of a Board Observer, the Company may require such Board Observer to enter into a written agreement with respect to confidentiality and other customary matters for board observers; provided that any such agreement shall be on terms reasonably acceptable to the Shareholder or Shareholders designating such Board (such approval not Observer. Any Board Observer shall be permitted to be unreasonably withheld or delayed). The Company shall give each Observer written notice of each attend any meeting of the Board or any committee thereof or any boards of Directorsdirectors (or similar governing body) of any member of the Company Group or any committee thereof, together with any materials provided to in each case, using the same form of communication permitted for members of such board or any committee thereof, and the applicable member of the Company Group shall provide notice and all written materials to the Board Observers for any meeting in the same form, and at the same time such materials and information are given to time, as the members director or manager of the Board and shall permit each Observer to attend as an observer at all meetings (including executive sessions) thereof. Notwithstanding the foregoing, applicable member of the Company or Group receives; provided that the Board shall have the right Observer may be excluded from access to withhold any information and to exclude any Observer from any material or meeting or portion thereof if the Board reasonably or any Subsidiary board, as applicable, determines in good faith, after consultation with upon advice of legal counsel, that attendance by such Observer would conflict with requirements under applicable Law or would be exclusion is reasonably necessary to protect the prevent a waiver of any attorney-client privilege between the Company and counsel. Each Investor shall cause its Observer or necessary to agree to hold in confidence and to act in prevent a fiduciary manner conflict of interest with respect to all information provided to such Observer. No Observer shall have any right to vote on any matter presented to the Board fiduciary duties of the directors, managers or any committee thereofother members.

Board Observers. Rio Tinto so So long as its Percentage Interest equals or exceeds 10 percent, and FSI so long as the Major Investors (atogether with their respective Permitted Transferees) its Percentage Interest equals or exceeds 7.5 percent or (b) it continues to hold own at least five percent (5%) of the number of Shares it held as of immediately following the effective time of IPO (including all Shares acquired by the FSI Shareholder from the Apollo Shareholdersissued and outstanding Shares, the Rio Tinto Shareholder and/or Major Investors shall be entitled to designate one (1) individual to be an observer on the underwriters in the IPO in accordance with the Share Purchase Agreement, dated as of [—], 2013, between the FSI Shareholder, the Apollo Shareholders and the Rio Tinto ShareholderBoard (a “Board Observer”), and subject provided, that such individual must be either a Major Investor or an employee or partner of Summit Partners or its Affiliates. Such Board Observer shall have the right to equitable adjustment for stock splits, stock dividends, combinations, reorganizations or similar events, shall each be entitled upon written request to appoint one individual as an observer to (i) attend all meetings of the Board and any committee thereof and (ii) receive copies of Directors (the “Observer”), which individual shall be reasonably acceptable all materials and information provided to the Directors, in each case, subject to any exclusion (x) required to preserve any evidentiary, attorney-client or other legal privilege, (y) required to avoid disclosure that is prohibited by an agreement with a third party or applicable laws or (z) except with respect to any employee or partner of Summit Partners or its Affiliates, required to protect any competitively sensitive information; provided, that the Board (such approval not to be unreasonably withheld or delayed). The Company Observer shall give each Observer written notice of each meeting comply with the general policies of the Board of in effect from time to time or as set forth in this Agreement, that are applicable to all Directors, together with any materials provided to members of the Board at the same time such materials and information are given to the members of the Board and shall permit each Observer to attend as an observer at all meetings (including executive sessions) thereof. Notwithstanding the foregoing, the Company or the Board shall have the right to withhold any information and to exclude any Observer from any meeting or portion thereof if the Board reasonably determines in good faith, after consultation with counsel, that attendance by such Observer would conflict with requirements under applicable Law or would be necessary to protect the attorney-client privilege between the Company and counsel. Each Investor shall cause its Observer to agree to hold in confidence and to act in a fiduciary manner with respect to all information provided to such Observerconfidentiality and conflicts of interest. No For the avoidance of doubt, the Board Observer shall not be a member of the Board, shall not have any the right to vote on any matter presented to and the attendance of the Board Observer shall not be required for purposes of taking any action at any meeting of the Board or for determining the existence of a quorum at any meeting of the Board or any committee thereofthereof (but shall be entitled to receive expense reimbursement from the Company in his or her capacity as a Board Observer). The Major Investors shall be entitled to replace the Board Observer at any time and from time to time upon written notice to the Company and the General Atlantic Shareholder; provided that if, the Major Investors cease to own at least five percent (5%) of the issued and outstanding Shares, the Board Observer shall be automatically removed and all rights to appoint a Board Observer pursuant to this this Section 4.1(f) shall immediately terminate.

Board Observers. Rio Tinto Each member of the Ad Hoc Committee shall be entitled to appoint a board observer (each, an “Observer”) for so long as such Ad Hoc Committee member (together with its Percentage Interest equals Affiliates and Related Funds) continues to own at least seven and one-half percent (7.5%) of the then-outstanding Common Units. Subject to such restrictions as the Board may establish (which may include a requirement that the Observer enter into a confidentiality agreement with the Company in form and substance reasonably satisfactory to the Board; provided, that any such restriction or exceeds 10 percent, and FSI so confidentiality agreement shall permit such Observer to share information provided to such Observer in his or her capacity as such with each member of the Ad Hoc Committee (for as long as (a) its Percentage Interest equals or exceeds 7.5 percent or (b) it such member continues to hold at least have the number of Shares it held as of immediately following the effective time of IPO right to appoint an Observer)), (including all Shares acquired by the FSI Shareholder from the Apollo Shareholders, the Rio Tinto Shareholder and/or the underwriters in the IPO in accordance with the Share Purchase Agreement, dated as of [—], 2013, between the FSI Shareholder, the Apollo Shareholders and the Rio Tinto Shareholder), and subject to equitable adjustment for stock splits, stock dividends, combinations, reorganizations or similar events, i) each Observer shall each be entitled upon written request to appoint one individual as an observer participate in discussions of any matters presented at any meeting, but shall not be entitled to attend all meetings of vote on any such matters and (ii) the Board of Directors (the “Observer”), which individual shall be reasonably acceptable to the Board (such approval not to be unreasonably withheld or delayed). The Company shall give each Observer written the same advance notice of each meeting all meetings and the same materials given to Directors and any committee of the Board Board; provided, however, that failure to comply with this notice requirement shall not prevent any such meeting from proceeding or otherwise affect the validity of Directors, together with such meeting or any materials provided to members actions taken at such meeting or any action taken by written consent in lieu of the Board at the same time such materials and information are given to the members of the Board and shall permit each Observer to attend as an observer at all meetings (including executive sessions) thereofa meeting. Notwithstanding the foregoing, the Company or the Board shall have the right to withhold any information and to exclude any Observer from any meeting or portion thereof if the Board reasonably determines in good faith, after consultation with counsel, that attendance by such Observer would conflict with requirements under applicable Law or would be necessary to protect the attorney-client privilege between the Company and counsel. Each Investor shall cause its Observer to agree to hold in confidence and to act in a fiduciary manner with respect to all information provided to such Observer. No Observer shall have any right to vote on any matter presented to (x) the Board or any committee thereofthereof may restrict any Person’s attendance as an Observer at all or any portion of a meeting if the Board or any committee thereof makes a good-faith determination that such Person has a conflict of interest with respect to the subject matter of such portion of the meeting or that the attendance by such Person at all or such portion of the meeting would cause the Company to lose the benefit of the attorney-client privilege, and (y) the failure of any Observer to attend any meeting of the Board or any committee of it shall not prevent any such meeting from proceeding or otherwise affect the validity of such meeting or any actions taken at such meeting or any action taken by written consent in lieu of a meeting.