Common use of Board Observers Clause in Contracts

Board Observers. Each Obligor agrees that, until payment in full of all Obligations, each of the Borrower and its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” and collectively, the “Board Parties”) shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe in meetings, whether telephonic or in-person, of the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of such Board Party, in each case with speaking rights. Each Board Party shall (i) give the Agent and each of the Lenders notice of all such meetings, at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors or other attendees, (iii) provide each Board Observer copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer; provided, that the Borrower reserves the right to withhold information and to exclude the Board Observer from any meeting or portion thereof if the Board Parties determine in good faith (and, with respect to attorney-client privilege and conflicts of interest, advice of counsel) that such exclusion is reasonably necessary (i) to preserve the attorney-client privilege, (ii) to avoid a potential conflict of interest (which, without limitation shall include discussions regarding this Agreement and the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secret. The board of directors of the Borrower shall meet no fewer than three times per year. The Board Observer shall keep and maintain all information, notices, minutes, consents and other materials obtained pursuant to this Section 8.15 confidential in accordance with Section 8.14.

Board Observers. Each Obligor agrees that, until payment in full of all Obligationsthe Termination Date, each of the Borrower Holdings and its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” and collectively, the “Board Parties”) shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe participate in meetings, whether telephonic or in-person, of the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of such Board Party, in each case with speaking rights. Each Board Party shall (i) give the Agent and each of the Lenders Board Observer notice of all such meetings, at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors attendees, directors, managers, officers, stockholders or any other attendees members, as applicable, of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors directors, managers, officers, stockholders or other attendeesmembers, as applicable, (iii) provide each Board Observer copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), and (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer; provided, however, that the Borrower reserves the right to (i) a Board Party may withhold information and to or materials from a Board Observer or exclude the a Board Observer from any meeting or portion thereof if (as determined by the Board Parties determine Party in good faith its reasonable discretion) access to such information or materials or attendance at such meeting or portion thereof would be reasonably likely to (and, with respect to attorney-client privilege and conflicts of interest, advice of counselA) that such exclusion is reasonably necessary (i) to preserve adversely affect the attorney-client privilege, or work product privilege between such Board Party and its counsel; or (B) result in a conflict of interest and (ii) all information shared with a Board Observer shall be subject to avoid the confidentiality obligations set forth in Section 8.19 below. Unless such contact is initiated by a potential conflict director, officer, employee, manager or stockholder of interest a Board Party, each Board Observer shall not contact any director, officer, employee, manager or stockholder of a Board Party, except (whichx) during the aforementioned meetings, without limitation shall include discussions regarding (y) to the extent such contact is otherwise necessary to enable Agent to administer the Term Loan, and (z) as otherwise expressly permitted pursuant to the terms of this Agreement and Agreement, including as to the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secretexercise of remedies. The board of directors of the Borrower each Board Party shall meet no fewer than three times per year. The Board Observer shall keep and maintain all information, notices, minutes, consents and other materials obtained pursuant to this Section 8.15 confidential in accordance with Section 8.14.

Board Observers. Each Obligor agrees thatUnless and until (i) Sellers and their Permitted Transferees Beneficially Own voting securities of PubCo representing less than 25% of the outstanding voting securities of PubCo (the "Board Observer Ownership Threshold") and (ii) a "person" or "group" of persons (as such term is defined under Regulation 13D under the Exchange Act) other than any Seller and/or any of Seller's Permitted Transferees Beneficially Owns a percentage of outstanding voting securities of PubCo (on a fully-diluted basis) that is greater than the percentage of outstanding voting securities of PubCo (on a fully-diluted basis) Beneficially Owned by Sellers and their respective Permitted Transferees, until payment in full of all Obligationstaken as a whole, the Seller Representative shall have the right to appoint up to three (3) non-voting board observers (the "Board Observers") to the Board, which may include each of the Borrower Xxxxxxxx Xxxxx-Xxxx, Xxxxxx Xxxxx, and its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” and collectively, the “Board Parties”) shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe in meetings, whether telephonic or in-person, of the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of such Board PartyXxxxxx Xxxxx, in each case with speaking rightscase, for so long as, and solely to the extent that, he or she is not a Seller Director. Each Board Party Observer shall have the right to (i) give the Agent and each attend all meetings of the Lenders notice of all such meetingsBoard in a non-voting, at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, observer capacity and (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors or other attendees, (iii) provide each Board Observer receive copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer; provided, that the Borrower reserves the right to withhold information and to exclude the Board Observer from any meeting or portion thereof if the Board Parties determine in good faith (and, with respect to attorney-client privilege and conflicts of interest, advice of counsel) that such exclusion is reasonably necessary (i) to preserve the attorney-client privilege, (ii) to avoid a potential conflict of interest (which, without limitation shall include discussions regarding this Agreement and the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secret. The board of directors of the Borrower shall meet no fewer than three times per year. The Board Observer shall keep and maintain all information, notices, minutes, consents and other materials obtained pursuant that PubCo provides to the Board in the same manner as such materials are provided to the Board; provided, that, (x) the Seller Representative's right to appoint the Board Observers is non-transferrable and shall automatically be terminated without any further action required in the event that the Class A Common Stock in PubCo Beneficially Owned by Sellers and their Permitted Transferees falls below the Board Observer Ownership Threshold, (y) the Board Observers shall not be entitled to vote on any matter submitted to the Board nor to offer any motions or resolutions to the Board, and the Board Observers' presence or absence at any meeting of the Board will not be relevant for purposes of determining whether there is a quorum, and (z) PubCo may withhold information or materials from the Board Observers and exclude the Board Observers from any executive sessions and/or all or any portion of any meeting or discussion of the Board, in each case of this Section 8.15 confidential clause (z), if the Board determines in accordance with Section 8.14.good faith that access to such information and/or materials or attendance at such meeting or portion thereof would (A) adversely affect the attorney-client privilege between PubCo and its counsel, (B) adversely affect PubCo or its Affiliates under governmental regulations or other applicable laws,

Board Observers. Each Obligor agrees thatAt the request of GSO (for so long as GSO is a Lender hereunder), until payment invite a representative of GSO to attend in full a non-voting observer capacity all meetings of all Obligations, each the Board of Directors of the Borrower and any meetings of any committees of the Board of Directors of the Borrower. The Borrower shall reimburse such representative for its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” reasonable and collectively, the “Board Parties”) shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe documented out-of-pocket expenses in connection with attending any such meetings, whether telephonic or in-person, in a manner consistent with the Borrower’s reimbursement of similar expenses of the directors of the Borrower. Notice of any such meetings shall be given to the GSO Representative in the same manner and at the same time as is given to the members of the Board of Directors or committee members, as the case may be. The GSO Representative shall be provided with copies of all information (including a meeting agenda and board of package, if any such materials are prepared) that is provided to such directors or board of managerscommittee members (whether prior to, any audit or compensation committees thereofat, or subsequent to any similar governing body of such Board Party, in each case with speaking rights. Each Board Party shall (i) give the Agent and each of the Lenders notice of all such meetings), at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished materials are provided to such directors or other attendeescommittee members, (iii) provide each Board Observer and copies of the minutes (both drafts and final versions) of all meetings of such meetings at directors or committee members, concurrently with the time distribution of such minutes are furnished to such directors or committee members. Notwithstanding anything to the attendees of such meeting (if any)contrary contained herein, (iv) provide each Board Observer notice of in the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer; provided, event that the Borrower reserves the right to withhold information and to exclude the Board Observer from any meeting or portion thereof if the Board Parties determine in good faith (and, with respect to attorney-client privilege and conflicts of interest, advice of counsel) that such exclusion is reasonably necessary (i) in the reasonable judgment of the Board of Directors of the Borrower, an issue is to preserve be discussed at a meeting of such Board of Directors (or material is to be distributed at such meeting) which is not appropriate to be discussed in the attorney-client privilege, presence of (iior provided to) GSO due to avoid a an actual or potential conflict of interest (whichincluding any matters related to this Agreement, without limitation shall include discussions regarding this Agreement and the other Loan DocumentsDocuments or any transactions contemplated hereby), or (ii) GSO’s attendance at such meeting (or receipt of material to be distributed at such meeting) may jeopardize, adversely affect or otherwise impair the attorney-client privilege or any recognized accountant-client privilege, then, in each case, (x) the Borrower shall provide notice of such fact to GSO and GSO shall not have the right to participate in any portion of such meeting that involves the matters described in clauses (i) or (iiiii) that such information is highly confidential or represents a trade secret. The board of directors of above, and (y) the Borrower shall meet no fewer than three times per year. The Board Observer shall keep have the right to withhold from GSO all applicable board meeting material and maintain all information, notices, minutes, consents and other materials obtained pursuant copies of minutes with respect to this Section 8.15 confidential the matters described in accordance with Section 8.14clauses (i) or (ii) above.

Board Observers. Each Obligor agrees that, until payment in full of all Obligations, each of the Borrower and its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” and collectively, the “Board Parties”) Non Voting Principal Investor Group shall allow the Agent be permitted to designate one representative non-voting observer to the Board and its committees (each a “Board Observer”) for so long as such Non Voting Principal Investor Group retains the right to attend and observe in meetings, whether telephonic nominate a director to the Board pursuant to Section 2.5.2(ii). If such Non Voting Principal Investor Group does not nominate the maximum number of Board Nominees it is entitled to nominate to the Board pursuant to Section 2.5.2(ii) (or in-person, of the board of directors if such individuals are not or board of managers, any audit or compensation committees thereofhave not been elected to, or any similar governing body are removed from, the Board and not replaced by another Board Nominee of such Non Voting Principal Investor Group), such Non Voting Principal Investor Group may designate one or more Board Observer(s) in lieu of such Board PartyNominee(s), in each case with speaking rightsbut the total number of Board Observers designated pursuant to this Section 2.5.4 shall not exceed the maximum number of Board Nominees that the Non Voting Principal Investor Group is eligible to nominate pursuant to Section 2.5.2(ii). Each Board Party Observer(s) shall not be an officer or employee of a Competitor. In the event such Board Observer(s) is a director (i) give or observer to the Agent and each board), equityholder (other than a holder of up to 1% of the Lenders common stock of a publicly traded company) or an Affiliate of a Competitor, such Board Observer(s) shall recuse himself or herself (and the Board may require such Board Observer(s) to be recused) from that portion of any meetings of the Board or committees thereof during which matters pertaining to any sector of the Business (including television, radio, music recording and publishing and Internet portals) that competes with such Competitor will be discussed, as determined by the Board or applicable committee. The Company shall, at any time, provide the Board Observer with (a) notice of all meetings of the Board and its committees and (b) provide all information delivered to the members of the Board and its committees prior to such meetings, meetings at the same time as furnished such notice and information is delivered to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors or other attendees, (iii) provide each Board Observer copies members of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observerits committees; provided, that such Board Observer shall enter into a confidentiality agreement substantially in the Borrower reserves the right form to withhold information and to exclude be approved by the Board Observer from any meeting or portion thereof if the Board Parties determine in good faith (and, with respect to attorney-client privilege such information; and conflicts of interestprovided, advice of counsel) further, that such exclusion is reasonably necessary (i) to preserve the attorney-client privilege, (ii) to avoid a potential conflict of interest (which, without limitation shall include discussions regarding this Agreement and the other Loan Documents) or (iii) that if any such information is highly confidential or represents a trade secret. The board of directors of Confidential Information with respect to which the Borrower shall meet no fewer than three times per year. The Non Voting Principal Investor that appointed such Board Observer is deemed a Conflicted PITV Investor, such information shall keep and maintain all informationnot be provided to the Board Observer. Notwithstanding any provision hereof to the contrary, noticesthe Board, minutesin its good faith judgment, consents and other materials obtained pursuant shall be entitled to this Section 8.15 confidential in accordance require a Board Observer to be excluded from any portion of a Board meeting or a meeting of its committees when the Board discusses any matters relating to Confidential Information with Section 8.14respect to which the Non Voting Principal Investor that appointed such Board Observer is deemed a Conflicted PITV Investor.

Board Observers. Each Obligor agrees that, until payment in full of all Obligations, each of the Borrower and its Subsidiaries (for purposes of this Section 8.15, each a “Board Party” and collectively, the “Board Parties”) shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe in meetings, whether telephonic or in-person, of the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of such Board Party, in each case with speaking rights. Each Board Party shall (i) give the Agent and each of the Lenders notice of all such meetings, at the same time as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors or other attendees, (iii) provide each Board Observer copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board Observer; provided, that the Borrower reserves the right to withhold information and to exclude the Board Observer from any meeting or portion thereof if the Board Parties determine in good faith (and, with respect to attorney-client privilege and conflicts of interest, advice of counsel) that such exclusion is reasonably necessary (i) to preserve the attorney-client privilege, (ii) to avoid a potential conflict of interest (which, without limitation shall include discussions regarding this Agreement and the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secret. The board of directors of the Borrower shall meet no fewer than three times per year. The Board Observer shall keep and maintain all information, notices, minutes, consents and other materials obtained pursuant to this Section 8.15 confidential in accordance with Section 8.14. [***] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED BECAUSE THE INFORMATION (I) IS NOT MATERIAL AND (II) WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

Board Observers. Each Obligor agrees that, until payment in full During the period commencing on the Closing and ending on the earlier of all Obligations, each (i) the fifth (5th) anniversary of the Borrower Closing and its Subsidiaries (for purposes ii) the date that any of this Section 8.15OrbiMed or Soleus holds less than 50% of the Shares and Pre-Funded Warrants purchased on the Closing Date, each respectively, then OrbiMed Advisors LLC (“OrbiMed”) and Soleus Capital Management, L.P. (“Soleus”) shall severally, and not jointly, have the right to designate one (1) natural person individual, reasonably acceptable to the Company, to be present and participate in a “non-voting, observer capacity at all meetings of the Board Party” and collectivelyof Directors or any committee thereof, including any telephonic or electronic meetings (such individuals, the “Board PartiesObservers”) ); provided, for the avoidance of doubt, that in no event shall allow the Agent to designate one representative (each a “Board Observer”) to attend and observe in meetings, whether telephonic or in-person, of the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of such Board Party, in each case with speaking rights. Each Board Party shall Observers: (i) be deemed to 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 Observers substantially simultaneously by means reasonably designed to ensure timely receipt by the Board Observers, and the Company will give the Agent and each of the Lenders Board Observers notice of all 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 furnished notice is provided or delivered to the attendees, directors, managers, officers, stockholders or members, as applicable, Board of such Board Party, (ii) provide to each Board Observer all notices, documents and information furnished to the directors or any other attendees of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors or other attendees, (iii) provide each Board Observer copies of the minutes of all such meetings at the time such minutes are furnished to the attendees of such meeting (if any), (iv) provide each Board Observer notice of the adoption of any material resolutions and other material actions taken by the board of directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party, and (v) reimburse the Agent and each of the Lenders for all reasonable out of pocket expenses related to the foregoing for their respective Board ObserverDirectors; provided, that each of the Borrower Board Observers agrees to be subject to the Company’s Code of Ethics and Business Conduct 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 Observers’ attendance at meetings of the Board 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. In addition, each Board Observer shall be entitled to reimbursement for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s policies and practices with respect to director expense reimbursement then in effect) in connection with attending meetings of the Board of Directors or any committee thereof, or in connection with performing any duties on behalf of the Board of Directors, delegated to it in writing by the Board of Directors. Notwithstanding the provisions of this Section 5.17, the Company reserves the right to withhold information exclude one or both of the Board Observers from any meeting of the Board of Directors, or a portion thereof, and to exclude redact portions of any materials delivered to a Board Observer, where and to the extent that the Company reasonably believes, upon advice of counsel, that withholding such information or excluding a Board Observer from any attending such meeting or portion thereof if of the Board Parties determine in good faith (andof Directors, with respect to attorney-client privilege and conflicts of interestor a portion thereof, advice of counsel) that such exclusion is reasonably necessary necessary: (i) to preserve the attorney-client privilegeclient, work product or similar privilege between the Company, the Board of Directors or any committee thereof, on the hand, and its counsel, on the other, with respect to any matter; (ii) to avoid a 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 OrbiMed or Soleus, or (iv) because the Board of Directors 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 (which, without limitation shall include discussions regarding this Agreement between OrbiMed or Soleus and the other Loan Documents) or (iii) that such information is highly confidential or represents a trade secret. The board of directors of the Borrower shall meet no fewer than three times per yearCompany. The Board Observer Observers shall keep use the same degree of care to protect the Company’s confidential and maintain all informationproprietary information as Purchasers A and B use to protect confidential and proprietary information of like nature, noticesbut in no circumstances with less than reasonable care. Notwithstanding the foregoing, minutes, consents and other materials obtained pursuant the number of Board Observers able to this Section 8.15 confidential in accordance with Section 8.14be designated hereunder shall be reduced to the extent any of the Board Observers are appointed to the Board of Directors.