Common use of Board Observers Clause in Contracts

Board Observers. (a) Notwithstanding anything contained in these Articles, and in respect of REA only, subject always to Article 163, each of: (i) the TPG Investor Entities (collectively as a group), in aggregate; (ii) the KKR Investor and its Affiliates (collectively as a group), in aggregate; and (iii) REA, provided that it holds at least 7.5 per cent. of the issued share capital of the Company, shall have the right to nominate one person as an observer (a “Board Observer”), who shall, subject to these Articles and/or Applicable Law, have the right to attend all meetings of the Board and any committee thereof, and speak at such meeting if they are invited to do so by any other Director at such meeting, but who shall not vote on any resolution of the Board or such committee. The Company shall provide to the Board Observer(s) all notices, minutes, consents, resolutions and all other materials and information that it provides to the Directors with respect to meetings of the Board or any such committee in the same format and at the same time that such materials and information are given to the Directors. The right of nomination conferred on each of the TPG Investor Entities, the KKR Investor and REA as aforesaid shall include the right of such Shareholder Party to request the removal at any time of such person nominated by it as a Board Observer, the right to nominate a substitute Board Observer and the right of that Shareholder Party at any time and from time to time to determine the period during which such person shall hold the position of the Board Observer. The right of nomination or request for removal of the Board Observer shall be in writing and signed by or on behalf of the Shareholder Party and shall be delivered to the registered office of the Company. The rights of the TPG Investor Entities, the KKR Investor and REA hereunder are in addition to their respective rights (if any) to appoint Directors to the Board pursuant to these Articles. For the avoidance of doubt, in respect of the TPG Investor Entities, the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 shall be personal and non-transferable.

Board Observers. (a) Notwithstanding anything contained in these ArticlesEach Obligor agrees that, and in respect of REA only, subject always to Article 163until the Termination Date, each of: (i) the TPG Investor Entities (collectively as a group), in aggregate; (ii) the KKR Investor of Holdings and its Affiliates Subsidiaries (collectively as for purposes of this Section 8.15, each a group)“Board Party” and collectively, in aggregate; and the “Board Parties”) shall allow Agent to designate one representative (iii) REA, provided that it holds at least 7.5 per cent. of the issued share capital of the Company, shall have the right to nominate one person as an observer (each a “Board Observer”) to attend and 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 (the “Board”), who shall, subject to these Articles and/or Applicable Law, have the right to attend all meetings of in each case with speaking rights. ; provided that in no event shall the Board and any committee thereof, and speak at such meeting if they are invited Observer (i) be deemed to do so by any other Director at such meeting, but who shall not vote on any resolution of the Board or such committee. The Company shall provide to the Board Observer(s) all notices, minutes, consents, resolutions and all other materials and information that it provides to the Directors with respect to meetings be a member of the Board or any committee thereof, (ii) except for the confidentiality obligations expressly set forth in this Section 8.15, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to such Board Party or its stockholders or subsidiaries, or (iii) have the right to propose, offer or vote on any motions or resolutions to the Board or any committee in the same format and thereof or otherwise have power to cause such Board Party to take, or not to take, any action. Each Board Party shall (i) give each Board Observer notice of all such meetings, at the same time that as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such materials Board Party, (ii) provide to each Board Observer all notices, documents and information are given furnished to the Directorsattendees, directors, managers, officers, stockholders or members, as applicable, of such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors, managers, officers, stockholders or members, 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; provided, however, that (i) a Board Party may withhold information or materials from a Board Observer or exclude a Board Observer from any meeting or portion thereof if (as determined by the Board Party in its reasonable discretion) access to such information or materials or attendance at such meeting or portion thereof would be reasonably likely to (A) adversely affect the attorney-client 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 the confidentiality obligations set forth in Section 8.19 below. Unless such contact is initiated by a director, officer, employee, manager or stockholder of a Board Party, each Board Observer shall not contact any director, officer, employee, manager or stockholder of a Board Party, except (x) during the aforementioned meetings, (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, including as to the exercise of remedies. The right board of nomination conferred on each directorsObligors agree that none of the TPG Investor EntitiesObligors, the KKR Investor and REA as aforesaid shall include the right of such Shareholder Party to request the removal at their Affiliates or any time of such person nominated by it as a Board Observer, the right to nominate a substitute Board Observer and the right of that Shareholder Party at any time and from time to time to determine the period during which such person shall hold the position member of the Board Observeror any committee thereof shall be entitled to rely on any statements or views expressed by the Board Observer in any Board or committee meeting. The right Board Observer shall be entitled to indemnification and advancement of nomination expenses from Holdings to the same extent provided by Holdings to its directors under its Organizational Documents as in effect upon consummation of the Initial Public Offering. During the period of any Board Observer’s appointment hereunder, and thereafter for the duration of the applicable statute of limitations, Holdings shall cause to be maintained in effect a policy of liability insurance coverage for such Board Observer against liability that may be asserted against or request for removal incurred by them in their capacity as Board Observer (or any other alleged, purported or actual relationship with Holdings) which is equivalent in scope and amount to that provided to Holdings’ directors. Holdings acknowledges and agrees that the foregoing rights to indemnification, advancement of expenses and insurance constitute third-party rights extended to the Board Observer by Holdings and do not constitute rights to indemnification, advancement or insurance as a result of the Board Observer shall be in writing and signed by serving as a director, officer, employee, or on behalf agent of the Shareholder Party and shall be delivered to the registered office of the CompanyHoldings or its Affiliates. The rights of the TPG Investor Entities, the KKR Investor and REA hereunder are in addition to their respective rights (if any) to appoint Directors to the Board pursuant to these Articles. For the avoidance of doubt, in respect of the TPG Investor Entities, the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 Board Party shall be personal and non-transferablemeet no fewer than three times per year.

Board Observers. (a) Notwithstanding anything contained in these ArticlesEach Obligor agrees that, and in respect of REA only, subject always to Article 163until the Termination Date, each of: (i) the TPG Investor Entities (collectively as a group), in aggregate; (ii) the KKR Investor of Holdings and its Affiliates Subsidiaries (collectively as for purposes of this Section 8.15, each a group)“Board Party” and collectively, in aggregate; and the “Board Parties”) shall allow Agent to designate one representative (iii) REA, provided that it holds at least 7.5 per cent. of the issued share capital of the Company, shall have the right to nominate one person as an observer (each a “Board Observer”), who shall, subject to these Articles and/or Applicable Law, have the right ) to attend all meetings and participate in meetings, whether telephonic or in-person, of the Board and board of directors or board of managers, any committee audit or compensation committees thereof, and speak at such meeting if they are invited to do so by any other Director at such meeting, but who shall not vote on any resolution of the Board or such committee. The Company shall provide to the Board Observer(s) all notices, minutes, consents, resolutions and all other materials and information that it provides to the Directors with respect to meetings of the Board or any similar governing body of such committee Board Party, in the same format and each case with speaking rights. Each Board Party shall (i) give each Board Observer notice of all such meetings, at the same time that as furnished to the attendees, directors, managers, officers, stockholders or members, as applicable, of such materials Board Party, (ii) provide to each Board Observer all notices, documents and information are given furnished to the Directors. The right attendees, directors, managers, officers, stockholders or members, as applicable, of nomination conferred on such Board Party, whether at or in anticipation of a meeting, at the same time furnished to such directors, managers, officers, stockholders or members, as applicable, (iii) provide each Board Observer copies of the TPG Investor Entities, minutes of all such meetings at the KKR Investor and REA as aforesaid shall include time such minutes are furnished to the right attendees of such Shareholder Party to request meeting (if any), and (iv) provide each Board Observer notice of the removal at adoption of any time material resolutions and other material actions taken by the board of such person nominated by it as directors or board of managers, any audit or compensation committees thereof, or any similar governing body of any Board Party; provided, however, that (i) a Board Observer, the right to nominate Party may withhold information or materials from a substitute Board Observer and the right of that Shareholder Party at or exclude a Board Observer from any time and from time to time to determine the period during which such person shall hold the position of meeting or portion thereof if (as determined by the Board Observer. The right Party in its reasonable discretion) access to such information or materials or attendance at such meeting or portion thereof would be reasonably likely to (A) adversely affect the attorney-client or work product privilege between such Board Party and its counsel; or (B) result in a conflict of nomination or request for removal of the interest and (ii) all information shared with a Board Observer shall be in writing and signed by or on behalf of the Shareholder Party and shall be delivered subject to the registered office confidentiality obligations set forth in Section 8.19 below. Unless such contact is initiated by a director, officer, employee, manager or stockholder of a Board Party, each Board Observer shall not contact any director, officer, employee, manager or stockholder of a Board Party, except (x) during the Companyaforementioned meetings, (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, including as to the exercise of remedies. The rights board of the TPG Investor Entities, the KKR Investor and REA hereunder are in addition to their respective rights (if any) to appoint Directors to the Board pursuant to these Articles. For the avoidance of doubt, in respect of the TPG Investor Entities, the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment directors of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 Board Party shall be personal and non-transferablemeet no fewer than three times per year.

Board Observers. (a) Notwithstanding anything contained in these Articles, and in In respect of REA only, subject always to Article 163, each ofthe Board of Directors for any of the Company or the Group Companies: (i1) the TPG Investor Entities (collectively as a group)Each Preferred Holder which, together with its Affiliates, holds Preferred Shares with an aggregate conversion price equal to not less than US$1,000,000 shall be entitled, from time to time, by notice in aggregate; (ii) the KKR Investor and its Affiliates (collectively as a group), in aggregate; and (iii) REA, provided that it holds at least 7.5 per cent. of the issued share capital of writing to the Company, shall have the right to nominate one person as appoint an observer individual (a “Board Observer”), who shall, subject to these Articles and/or Applicable Law, have the right an "OBSERVER") to attend all any meetings of the such Board of Directors and any committee thereof. Observers in attendance thereat shall be entitled to speak at meetings of such Board of Directors and any committee thereof, and speak at such meeting if they are invited but no Person shall have any right in respect of his/her status as an Observer to do so by any other Director at such meeting, but who shall not vote on any resolution questions put before such Board of the Board Directors or such committee. The Company For so long as the Lead Investor, CDH or UCI, respectively, shall provide continue to the Board Observer(s) all notices, minutes, consents, resolutions and all other materials and information that it provides to the Directors with respect to meetings of the Board or any such committee in the same format and at the same time that such materials and information are given to the Directors. The right of nomination conferred on each of the TPG Investor Entities, the KKR Investor and REA as aforesaid shall include the right of such Shareholder Party to request the removal at any time of such person nominated by it as enjoy a Board Observer, the right to nominate a substitute Board Observer and the right of that Shareholder Party at any time and from time to time to determine the period during which such person shall hold the position of the Board Observer. The right of nomination or request for removal of the Board Observer shall be in writing and signed by or on behalf of the Shareholder Party and shall be delivered to the registered office of the Company. The rights of the TPG Investor Entities, the KKR Investor and REA hereunder are in addition to their respective rights (if any) to appoint Directors director to the Board pursuant of Directors of the Company and each Group Company under this Section 3, Shareholders Agreement such party agrees it shall not exercise its right under this Section 3.6 to these Articlesappoint any Observer. (2) Concurrent with the delivery of notice or other materials to the directors of such Board of Directors or the members of any committee thereof, the Company shall give each Observer for such Board of Directors a copy of such notice or materials. For Further, (i) promptly following any meeting of such Board of Directors or such committee, the avoidance Company shall provide such Observer with a copy of doubtthe minutes of such meeting, together with all materials distributed to the directors of such Board of Directors or members of such committee at the meeting; (ii) concurrent with distribution to the directors of such Board of Directors or the members of such committee of any resolution proposed to be adopted by the Board of Directors or such committee in writing in lieu of a meeting, the director or member proposing such resolution shall distribute a copy to such Observer; and (iii) following the adoption thereof, the Company shall provide the Observer with copies of all resolutions adopted by the Board of Directors or such committee in writing in lieu of a meeting. (c) The parties hereto acknowledge that Observers appointed by any Preferred Holder hereunder are responsible for reporting to such Preferred Holder and the Affiliates thereof any information disclosed to such Observers in respect of the TPG Investor Entities, Company and the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 shall be personal and non-transferableGroup Companies.

Board Observers. (a) Notwithstanding anything contained in these Articles, During the period commencing on the Closing and in respect ending on the earlier of REA only, subject always to Article 163, each of: (i) the TPG Investor Entities fifth (collectively as a group), in aggregate; 5th) anniversary of the Closing and (ii) the KKR Investor and its Affiliates (collectively as a group), in aggregate; and (iii) REA, provided date that it any of OrbiMed or Soleus holds at least 7.5 per cent. less than 50% of the issued share capital of Shares and Pre-Funded Warrants purchased on the CompanyClosing Date, respectively, then OrbiMed Advisors LLC (“OrbiMed”) and Soleus Capital Management, L.P. (“Soleus”) shall have the right to nominate one person as an observer (a “Board Observer”)severally, who shall, subject to these Articles and/or Applicable Lawand not jointly, have the right to attend 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 and of Directors or any committee thereof, and speak at including any telephonic or electronic meetings (such meeting if they are invited individuals, the “Board Observers”); provided, for the avoidance of doubt, that in no event shall the Board Observers: (i) be deemed to do so by any other Director at such meeting, but who shall not vote on any resolution be a member of the Board of Directors or such committee. The Company shall provide any committee thereof or (ii) have the right to vote on, consent to or veto any matter, motion or resolution presented to the Board Observer(s) all notices, minutes, consents, of Directors or any committee thereof or propose or offer any motions or resolutions and all other materials and information that it provides to the Board of Directors with respect or any committee thereof. Any materials that are sent by the Company to meetings the members of the Board or any of Directors in their capacity as such committee in 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 Board Observers notice of such meetings, by the same format means as such notices are delivered to the members of the Board of Directors and at the same time that such materials and information are given as notice is provided or delivered to the Board of Directors. The right of nomination conferred on ; provided, that each of the TPG Investor EntitiesBoard 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 KKR Investor and REA as aforesaid shall include Company reserves the right to exclude one or both of such Shareholder Party the Board Observers from any meeting of the Board of Directors, or a portion thereof, and to request the removal at redact portions of any time of such person nominated by it as materials delivered to a Board Observer, where and to the right to nominate extent that the Company reasonably believes, upon advice of counsel, that withholding such information or excluding a substitute Board Observer and the right of that Shareholder Party at any time and from time to time to determine the period during which attending such person shall hold the position meeting of the Board Observer. The right of nomination Directors, or request for removal a portion thereof, is reasonably necessary: (i) to preserve attorney-client, 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 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 Observer shall be in writing and signed by of Directors or on behalf of the Shareholder Party and shall be delivered committee thereof relates directly to the registered office 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 between OrbiMed or Soleus and the Company. The rights Board Observers shall use the same degree of care to protect the Company’s confidential and proprietary information as Purchasers A and B use to protect confidential and proprietary information of like nature, but in no circumstances with less than reasonable care. Notwithstanding the foregoing, the number of Board Observers able to be designated hereunder shall be reduced to the extent any of the TPG Investor Entities, the KKR Investor and REA hereunder Board Observers are in addition to their respective rights (if any) to appoint Directors appointed to the Board pursuant to these Articles. For the avoidance of doubt, in respect of the TPG Investor Entities, the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 shall be personal and non-transferableDirectors.

Board Observers. At the request of GSO (afor so long as GSO is a Lender hereunder), invite a representative of GSO to attend in a non-voting observer capacity all meetings of 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 reasonable and documented out-of-pocket expenses in connection with attending any such meetings, 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 package, if any such materials are prepared) that is provided to such directors or committee members (whether prior to, at, or subsequent to any such meetings), at the same time as such materials are provided to such directors or committee members, and copies of the minutes (both drafts and final versions) of all meetings of such directors or committee members, concurrently with the distribution of such minutes to such directors or committee members. Notwithstanding anything to the contrary contained herein, in these Articles, and in respect of REA only, subject always to Article 163, each of: the event that (i) in the TPG Investor Entities reasonable judgment of the Board of Directors of the Borrower, an issue is to be discussed at a meeting of such Board of Directors (collectively as a groupor material is to be distributed at such meeting) which is not appropriate to be discussed in the presence of (or provided to) GSO due to an actual or potential conflict of interest (including any matters related to this Agreement, the other Loan Documents or any transactions contemplated hereby), in aggregate; 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 KKR Investor and its Affiliates (collectively as a group)attorney-client privilege or any recognized accountant-client privilege, then, in aggregate; and each case, (iiix) REAthe 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 (ii) above, provided that it holds at least 7.5 per cent. of and (y) the issued share capital of the Company, Borrower shall have the right to nominate one person as an observer (a “Board Observer”), who shall, subject to these Articles and/or Applicable Law, have the right to attend withhold from GSO all meetings applicable board meeting material and copies of the Board and any committee thereof, and speak at such meeting if they are invited to do so by any other Director at such meeting, but who shall not vote on any resolution of the Board or such committee. The Company shall provide to the Board Observer(s) all notices, minutes, consents, resolutions and all other materials and information that it provides to the Directors minutes with respect to meetings of the Board matters described in clauses (i) or any such committee in the same format and at the same time that such materials and information are given to the Directors. The right of nomination conferred on each of the TPG Investor Entities, the KKR Investor and REA as aforesaid shall include the right of such Shareholder Party to request the removal at any time of such person nominated by it as a Board Observer, the right to nominate a substitute Board Observer and the right of that Shareholder Party at any time and from time to time to determine the period during which such person shall hold the position of the Board Observer. The right of nomination or request for removal of the Board Observer shall be in writing and signed by or on behalf of the Shareholder Party and shall be delivered to the registered office of the Company. The rights of the TPG Investor Entities, the KKR Investor and REA hereunder are in addition to their respective rights (if anyii) to appoint Directors to the Board pursuant to these Articles. For the avoidance of doubt, in respect of the TPG Investor Entities, the TPG Investor Entities shall collectively only have the right to appoint one Board Observer, and any appointment or removal of its Board Observer by the TPG Investor Entities in accordance with this Article 95 shall be signed by the TPG Investor on behalf of all TPG Investor Entities for so long as the TPG Investor is a Shareholder, and if the TPG Investor ceases to be a Shareholder, then by the remaining TPG Investor Entities jointly. For the avoidance of doubt, the rights of appointment of each of the TPG Investor Entities, the KKR Investor and REA under this Article 95 shall be personal and non-transferableabove.