Common use of Board of Directors Observation Rights Clause in Contracts

Board of Directors Observation Rights. (a) Until the closing of -------------------------------------- - a Qualified Public Offering, each Stockholder agrees that from and after the date of this Agreement it will use its best efforts to nominate and elect, and will vote all of the shares of Stock owned or held of record by such Stockholder to elect and, thereafter, for such period, to continue in office a Board consisting of ten members, who will be designated for nomination and election as follows: (i) so long as GECC and its Affiliates continue to own at least 10% of - the Company's Common Stock (assuming conversion of Preferred Stock into Common Stock), GECC may designate for nomination and election three directors; so long as GECC and its Affiliates continue to own less than 10% but at least 5% of the Company's Common Stock (assuming conversion of Preferred Stock into Common Stock), GECC may designate for nomination and election two directors and (ii) -- iXL may designate for nomination and election all the directors not designated for nomination and election by GECC. The rights of GECC set forth in the previous sentence are personal in nature and unassignable by GECC, notwithstanding anything to the contrary contained herein, other than to an Affiliate thereof other than GEFA. The parties agree that the failure by GECC to so designate for nomination and election will not constitute a waiver by GECC of such right to do so in the future. The Persons designated pursuant to this Section 9.1 for nomination and election by iXL and GECC, as the case may be, may be changed from time to time by the nominating Person, so long as GECC has a representative on the Board, it shall have representation on each committee created by the Board proportional to its rights to representation hereunder or under the Investors Agreement, provided, that with respect to the compensation -------- committee, GECC will have the right to appoint one of the three members to such committee and, provided further, that the Company will not create an executive -------- -------- committee or other committee which is entitled to exercise any power or authority of the Board without the need for subsequent Board approval with respect thereto (except for an audit committee and a compensation committee). GECC's designees on the Board or each committee, as the case may be, may not be officers of GEFA. (b) From and after the closing of a QPO, the Company will cause to be - nominated and the Stockholders will vote to elect (i) three directors of the - Company designated for nomination by iXL and (ii) that number of directors of -- the Company which the GE Investors shall be entitled to designate for nomination pursuant to in the Investors Agreement. (c) In the event that either GECC does not designate for nomination and - election members to the Board of Directors in accordance with Section 9.1 hereof or the GECC designees are not elected to the Board of Directors, then GECC (for so long as GECC and its Affiliates still own at least 5% of the total outstanding equity securities of the Company), shall have the right to have a non-voting representative attend any meetings of the Board (including any adjournments thereof) either in person or by such other method as shall be allowed under the bylaws of the Company for directors, and shall further have the right to receive any notices and materials provided to the entire Board in their capacity as such. Any such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, and the Board shall consider such suggestions and requests in good faith.

Board of Directors Observation Rights. 2.1. Until the earlier of (a) Until the closing of -------------------------------------- - a Qualified Public Offering, each Stockholder agrees that from and after the date of this Agreement it will use its best efforts to nominate and elect, and will vote all 18 month anniversary of the Closing Date and (b) such time as SSF and its Covered Transferees no longer own a number of shares of Common Stock owned or held of record by such Stockholder equal to elect and, thereafter, for such period, to continue in office a Board consisting of ten members, who will be designated for nomination and election as follows: (i) so long as GECC and its Affiliates continue to own at least 10% of - the Company's Common Stock (assuming conversion of Preferred Stock into Common Stock), GECC may designate for nomination and election three directors; so long as GECC and its Affiliates continue to own less than 10% but at least 575% of the Company's number of shares of Common Stock acquired by SSF as of the Closing Date (assuming conversion of Preferred Stock into Common Stockas adjusted for stock splits, reverse stock splits and similar transactions), GECC may designate for nomination and election two directors and (ii) -- iXL may designate for nomination and election all the directors not designated for nomination and election by GECC. The rights of GECC set forth in the previous sentence are personal in nature and unassignable by GECC, notwithstanding anything to the contrary contained herein, other than to an Affiliate thereof other than GEFA. The parties agree that the failure by GECC to so designate for nomination and election will not constitute a waiver by GECC of such right to do so in the future. The Persons designated pursuant to this Section 9.1 for nomination and election by iXL and GECC, as the case may be, may be changed from time to time by the nominating Person, so long as GECC has a representative on the Board, it shall have representation on each committee created by the Board proportional to its rights to representation hereunder or under the Investors Agreement, provided, that with respect to the compensation -------- committee, GECC will have the right to appoint one of the three members to such committee and, provided further, that the Company will not create an executive -------- -------- committee or other committee which is entitled to exercise any power or authority of the Board without the need for subsequent Board approval with respect thereto (except for an audit committee and a compensation committee). GECC's designees on the Board or each committee, as the case may be, may not be officers of GEFA. (b) From and after the closing of a QPO, the Company will cause to be - nominated and the Stockholders will vote to elect (i) three directors of the - Company designated for nomination by iXL and (ii) that number of directors of -- the Company which the GE Investors shall be entitled to designate for nomination pursuant to in the Investors Agreement. (c) In the event that either GECC does not designate for nomination and - election members to the Board of Directors in accordance with Section 9.1 hereof or the GECC designees are not elected to the Board of Directors, then GECC (for so long as GECC and its Affiliates still own at least 5% of the total outstanding equity securities of the Company), SSF shall have the right to have one (1) representative who shall be an employee of Xxxxxx Xxxxxxx or a non-voting representative attend any subsidiary thereof who is reasonably acceptable to the Company, present (whether in person or by telephone) at all regularly scheduled quarterly meetings of the Board of Directors and at any meeting of the Board of Directors to consider a merger, bankruptcy or liquidation of the Company, or an acquisition by the Company of a publicly-traded company (including any adjournments thereof) either in person or by such other method as the “Observer”). The initial Observer shall be allowed under Xxxx Xxxxxxxxxx or Xxxxx Xxxxx, who are hereby deemed acceptable to the bylaws Company. While such Observer designated pursuant to this Section 2.1 shall be entitled to participate in discussions, pose questions to, and consult with, and make proposals and furnish advice to, the Board of Directors, such Observer shall not be entitled to vote at any such meetings. The Company shall deliver to the Observer, concurrently with the delivery to members of the Company for directorsBoard of Directors, and shall further have the right to receive any notices and materials provided of such Board meetings, written information related thereto, written information distributed to the entire members of the Board in their capacity as such. Any such representative shall have the right to speak at connection with such meetings and all other written information provided to make such suggestions and requests during members of the Board of Directors in connection with such meetings in the same manner and at the same time as distributed to the members of the Board of Directors. Failure to deliver notice to an Observer in connection with an Observer’s right to attend any regularly scheduled quarterly or other meeting of the Board of Directors shall not, of itself, impair the validity of any action taken by the Board or such representative deems appropriatecommittee at such meeting. 2.2. At each regularly quarterly scheduled meeting of the Board of Directors, and the chairman of each committee of the Board shall consider make a presentation regarding such suggestions committee’s activities, since the previous quarterly scheduled meeting of the Board, which presentation shall include a description of all material issues discussed, and requests in good faithall actions taken, by such committee. Such presentation shall be deemed satisfied by delivery of minutes of all such meetings.

Board of Directors Observation Rights. (a) Until the closing of -------------------------------------- - a Qualified Public Offering, each Stockholder agrees that from and after the date of this Agreement it will use its best efforts to nominate and elect, and will vote all of the shares of Stock owned or held of record by such Stockholder to elect and, thereafter, for such period, to continue in office a Board consisting of ten members, who will be designated for nomination and election as follows: (i) so long as GECC and its Affiliates continue to own at least 10% of - the Company's Common Stock (assuming conversion of Preferred Stock into Common Stock), GECC may designate for nomination and election three directors; so long as GECC and its Affiliates continue to own less than 10% but at least 5% of the Company's Common Stock (assuming conversion of Preferred Stock into Common Stock), GECC may designate for nomination and election two directors and (ii) -- iXL may designate for nomination and election all the directors not -- designated for nomination and election by GECC. The rights of GECC set forth in the previous sentence are personal in nature and unassignable by GECC, notwithstanding anything to the contrary contained herein, other than to an Affiliate thereof other than GEFA. The parties agree that the failure by GECC to so designate for nomination and election will not constitute a waiver by GECC of such right to do so in the future. The Persons designated pursuant to this Section 9.1 for nomination and election by iXL and GECC, as the case may be, may be changed from time to time by the nominating Person, so long as GECC has a representative on the Board, it shall have representation on each committee created by the Board proportional to its rights to representation hereunder or under the Investors Agreement, provided, that with respect to the compensation -------- committee, GECC will have the right to appoint one of the three members to such committee and, provided further, that the Company will not create an executive -------- -------- committee or other committee which is entitled to exercise any power or authority of the Board without the need for subsequent Board approval with respect thereto (except for an audit committee and a compensation committee). GECC's designees on the Board or each committee, as the case may be, may not be officers of GEFA. (b) From and after the closing of a QPO, the Company will cause to be - nominated and the Stockholders will vote to elect (i) three directors of the - Company designated for nomination by iXL and (ii) that number of directors of -- the Company which the GE Investors shall be entitled to designate for nomination pursuant to in the Investors Agreement. (c) In the event that either GECC does not designate for nomination and - election members to the Board of Directors in accordance with Section 9.1 hereof or the GECC designees are not elected to the Board of Directors, then GECC (for so long as GECC and its Affiliates still own at least 5% of the total outstanding equity securities of the Company), shall have the right to have a non-voting representative attend any meetings of the Board (including any adjournments thereof) either in person or by such other method as shall be allowed under the bylaws of the Company for directors, and shall further have the right to receive any notices and materials provided to the entire Board in their capacity as such. Any such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, and the Board shall consider such suggestions and requests in good faith.

Board of Directors Observation Rights. So long as any of the Purchasers or any of their Affiliates shall hold any of the Notes, the Purchasers shall have the right to designate one representative for all such Purchasers to be present (awhether in person or by telephone) Until at all meetings of the closing Boards of -------------------------------------- - a Qualified Public Offering, Directors (and committees thereof) of DIMAC Holdings and DIMAC Operating; provided that such representative shall not be entitled to vote at such meetings. DIMAC Holdings and DIMAC Operating shall send to each Stockholder agrees that from and after the date of this Agreement it will use its best efforts to nominate and elect, and will vote such representative all of the shares notices, information and other materials that are distributed to the members of Stock owned or held the Boards of record by such Stockholder to elect andDirectors of DIMAC Holdings and DIMAC Operating, thereafterrespectively, for such period, to continue in office a Board consisting and shall provide each of ten members, who will be designated for nomination the Purchasers and election as follows: (i) so long as GECC and its Affiliates continue to own each Holder of at least 10% $20,000,000 aggregate principal amount of - the Company's Common Stock (assuming conversion Notes with a notice and agenda of Preferred Stock into Common Stock), GECC may designate for nomination and election three directors; so long as GECC and its Affiliates continue to own less than 10% but at least 5% each meeting of the Company's Common Stock Board of Directors (assuming conversion and committees thereof) of Preferred Stock into Common Stock)DIMAC Holdings or DIMAC Operating, GECC may designate for nomination and election two directors and (ii) -- iXL may designate for nomination and election all respectively, at the directors not designated for nomination and election by GECC. The rights of GECC set forth in the previous sentence are personal in nature and unassignable by GECC, notwithstanding anything same time as delivered to the contrary contained herein, other than to an Affiliate thereof other than GEFA. The parties agree that the failure by GECC to so designate for nomination and election will not constitute a waiver by GECC members of such right to do so in Board of Directors; provided, however, that upon the future. The Persons designated pursuant to this Section 9.1 for nomination and election by iXL and GECCrequest of any such representative, DIMAC Holdings or DIMAC Operating, as the case may be, may be changed shall refrain from time to time by the nominating Personsending such notices, information and other materials for so long as GECC has a such representative on shall request. DIMAC Holdings or DIMAC Operating shall pay or reimburse not more than one of such representatives for expenses which such representative may reasonably incur in connection with any such attendance of meetings of the BoardBoards of Directors of DIMAC Holdings and DIMAC Operating. The Purchasers shall provide notice to DIMAC Holdings and DIMAC Operating of the identity and address of, it shall have representation on each committee created by the Board proportional to its rights to representation hereunder or under the Investors Agreement, provided, that any change with respect to the compensation -------- committeeidentity or address of, GECC will have the right to appoint one their representative. DIMAC Holdings and DIMAC Operating hereby acknowledge and agree on behalf of the three members to such committee and, provided furtherthemselves and on behalf of each of their Subsidiaries, that the Company will not create an executive -------- -------- committee or other committee which is entitled to exercise at any power or authority of the Board without the need for subsequent Board approval with respect thereto (except for an audit committee and a compensation committee). GECC's designees on the Board or each committee, as the case may be, may not be officers of GEFA. (b) From and after the closing of a QPOtime, the Company will cause to be - nominated and Purchasers may purchase or sell securities issued by DIMAC Holdings, DIMAC Operating or any of their Subsidiaries, notwithstanding the Stockholders will vote to elect (i) three directors receipt by the Purchasers of the - Company designated for nomination by iXL and (ii) that number of directors of -- the Company which the GE Investors shall be entitled to designate for nomination pursuant to in the Investors Agreement. (c) In the event that either GECC does not designate for nomination and - election members to the Board of Directors in accordance with Section 9.1 hereof any confidential or the GECC designees are not elected to the Board of Directors, then GECC (for so long as GECC and its Affiliates still own at least 5% of the total outstanding equity securities of the Company), shall have the right to have a non-voting representative attend public information regarding DIMAC Holdings, DIMAC Operating, or any meetings of the Board (including any adjournments thereof) either in person or by such other method as shall be allowed under the bylaws of the Company for directors, and shall further have the right to receive any notices and materials provided to the entire Board in their capacity as such. Any such representative shall have the right to speak at such meetings and to make such suggestions and requests during such meetings as such representative deems appropriate, and the Board shall consider such suggestions and requests in good faithSubsidiaries.