Formic Ventures Board Observer Right Letter Sample Clauses

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Formic Ventures Board Observer Right Letter. The Formic Ventures Board Observer Right Letter shall have been terminated in accordance with its terms.

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Related to Formic Ventures Board Observer Right Letter

• Board Observer Rights (a) The Company agrees that it will invite Observer to attend, in a non-voting observer capacity, all meetings of the Board and any and all Committees for the purposes of permitting Observer to have current information with respect to the affairs of the Company and the actions taken by the Board and Observer to provide input and advice with respect thereto (the “Approved Purposes”). Observer shall have the right to be heard at any such meeting, but in no event shall Observer: (i) be deemed to be a member of the Board or such Committees; (ii) have the right to vote on any matter under consideration by the Board or such Committees or otherwise have any power to cause the Company to take, or not to take, any action; or (iii) except as expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders or any duties (fiduciary or otherwise) otherwise applicable to the directors of the Company. As a non-voting observer, Observer will also be provided (concurrently with delivery to the directors of the Company and in the same manner delivery is made to them) copies of all notices, minutes, consents, and all other materials or information (financial or otherwise) that are provided to the directors with respect to a meeting or any written consent in lieu of meeting (except to the extent Observer has been excluded therefrom pursuant to clause (c) below). (b) If a meeting of the Board or any of the Committees is conducted via telephone or other electronic medium (e.g., videoconference), Observer may attend such meeting via the same medium; provided, however, that it shall be a material breach of this Agreement by Observer to provide any other person access to such meeting without the Company’s express prior written consent (which consent may be by e-mail). (c) Notwithstanding the foregoing, the Company may exclude Observer from access to any material or meeting or portion thereof if: (i) the Board concludes in good faith, upon advice of the Company’s counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and such counsel; provided, however, that any such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or (ii) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and Observer (assuming Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange, or such other exchange on which the Company’s securities are then traded. (d) The Company shall compensate Observer in the same amount of all cash retainers, meeting fees and any other cash fees as if Observer were an independent director member of the Board and a member of each of the committees thereof, as such cash compensation may be modified from time to time. Further, the Company shall reimburse Observer for all reasonable out-of-pocket expenses incurred by Observer in connection with attendance at Board and Committee meetings. All compensation and reimbursements payable by the Company pursuant to this Section 1(d) shall be paid to Observer in accordance with the Company’s policies and practices with respect to director compensation and expense reimbursement then in effect; provided, however, that any such compensation or reimbursement shall be paid to Observer no later than comparable compensation or reimbursement is paid to the members of the Board. (e) The rights described in this Section 1 shall terminate upon: (i) the end of the Observer Period, as described in the Merger Agreement; (ii) any material violation of the terms of this Agreement by Observer which (A) remains uncured within ten business days after receipt of notice thereof, or (B) if such violation is not subject to cure, directly causes harm to the Company in the Board’s sole and absolute discretion; or (iii) the death or disability of Observer.

• Board Observer (a) Priceline shall have the right, exercisable by delivering notice to the Company, to designate one observer to attend any meetings of the Board and each committee thereof (the “Board Observer”) for so long as (i) Priceline and its Subsidiaries beneficially own at least the Board Observer Threshold Shareholding in the Company, (ii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 2.1, (iii) Priceline and its Subsidiaries comply in all material respects with the provisions of Section 3.1(a) and (iv) the Marketing Agreement is in full force and effect and Xxxxxxx.xxx B.V. complies in all material respects with the provisions thereof (the “Board Observer Right”). (b) The Board Observer shall be entitled (i) to receive notice of each meeting (including telephonic meetings) of the Board and any committee thereof in the same form and manner as is given to the members of the Board and the same materials as and when provided to such members (both before or after a meeting, including copies of minutes thereof), including materials provided other than in connection with a meeting, and neither the Board nor any committee thereof shall conduct any business by written consent without giving such prior notice to the Board Observer and a copy of the proposed consent, any exhibits, annexes or schedules thereto and any related materials and (ii) at the Board Observer’s discretion, to attend each Board meeting or meeting of any committee thereof, either in person or by telephonic conference, and to participate fully in all discussions among directors of the Board at such meetings, and the Company covenants to take reasonable measures to facilitate such attendance and discussion; provided that, notwithstanding any other provision of this Section 3.2, (A) the Board Observer shall agree to hold in confidence all information provided (provided that the Board Observer shall not be restricted in any confidential communications or discussions with or the confidential provision of information to Priceline and its Subsidiaries and their respective directors, officers, employees, accountants, agents, counsel and other representatives), (B) such Board Observer and Priceline shall be subject to the Company’s xxxxxxx xxxxxxx policies and procedures and shall sign an acknowledgement form stating that he or she and it agree to comply with such policies and procedures (it being understood that such xxxxxxx xxxxxxx policies and procedures shall not restrict Priceline or its Affiliates from purchasing ADSs or Ordinary Shares during any “blackout” or similar non-trading period if such purchases are made pursuant to a purchase plan established in accordance with Rule 10b5-1 of the Exchange Act) and (C) the Board Observer may be excluded from all or a portion of any meeting or from receiving all or a portion of any materials provided to the member of the Board (x) to the extent that the presence of the Board Observer at such meeting or any portion thereof or the receipt by the Board Observer of such materials or any portion thereof, as the case may be, could reasonably be expected to result in, based on the advice of the Company’s external counsel, the loss of attorney-client privilege in relation to the Company, its Subsidiaries or its Affiliates, or (y) to the extent the subject matter to be discussed at the meeting concerns (1) the Company’s rights under agreements with Priceline or its Subsidiaries or (2) matters related to business competition between the Company or its Subsidiaries, on the one hand, and Priceline or its Subsidiaries, on the other hand, in the People’s Republic of China); it being understood that the Board Observer shall not constitute a member of the Board and shall not be entitled to vote on, or consent to, any matters presented to the Board. For the avoidance of doubt, subject to the first sentence of this Section 3.2(b), in the event that any regular or special meeting of the Board is convened, the Company shall be deemed to be in full compliance with the provisions of this Section 3.2(b), provided that the Board Observer is given the notice in the same form and manner as, and copies of the same materials as and when provided to, the members of the Board and the Company takes reasonable measures to facilitate the Board Observer’s attendance at any such meeting in accordance with this Section 3.2(b).

• Board Observers At any time during which there is an outstanding balance on the Tranche A Term Loan (as such capitalized term is defined in that certain Amended and Restated Credit Agreement dated October 15, 2009 (the “Credit Agreement”), among Xxxxxx Communications Company, LLC, Xxxxxx Publishing Group, LLC, the Lenders party thereto, and Tranche Manager, LLC, as Administrative Agent), Tranche Holdings, LLC, or its designee, shall be entitled to designate one (1) nonvoting observer (the “Observer”) to the Company’s Board of Directors and to all committees thereof. Such Observer shall be entitled to attend all Board meetings (which meetings shall generally be held telephonically) but will not be entitled to vote at any Board meeting. Such Observer shall be entitled to receive all consents, proposed consents or Board actions, documents, materials, information and notices (whether or not in writing) provided to the Board; provided, however, that the Company reserves the right to exclude such Observer from access to any material or meeting or portion thereof (only if the Observer is notified of such withholding) if the Board votes in good faith after advice of counsel, that such exclusion is necessary (taking into account any confidentiality agreements that such Observer has executed or is willing to execute): (a) to preserve the attorney-client privilege; (b) to prevent a breach by the Board of Directors of its fiduciary duties; or (c) to avoid the impairment of the Company’s ability to enforce its rights under this Agreement in any bona fide dispute with the Observer. Such Observer may be removed from office only by Tranche Holdings, LLC, except that the Observer may be removed for cause by the Board of Directors in the event of willful misconduct or material breach of any confidentiality agreement with the Company or its affiliates; provided such Observer shall not be removed for cause until after Tranche Holdings, LLC has been notified of the Board’s intent to remove such person for cause and is given Tranche Holdings, LLC a reasonable amount of time to appoint another person as an Observer. Upon the payment and satisfaction in full of Tranche A Term Loan, Tranche Holdings, LLC shall cease to possess the right to designate an Observer, and any Observer so designated will automatically and without further action be removed from the Board. At any time during which there is an outstanding balance on the Tranche A Term Loan (as defined in the Credit Agreement), all travel and other reasonable expenses incurred by Tranche Holdings, LLC or its designee in connection with its rights in this Section 3.1.8 shall be reimbursed by the Company.

• Stockholder Lock-Ups The Company has caused to be delivered to you prior to the date of this Agreement a letter, in the form of Exhibit A hereto (the “Lock-Up Agreement”), from each individual or entity listed on Schedule IV. The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.

• Additional Stockholders In connection with the issuance of any additional equity securities of the Company to any Person, the Company may permit such Person to become a party to this Agreement and succeed to all of the rights and obligations of a "Stockholder" under this Agreement by obtaining the consent of the holders of a majority of the Common Stockholder Shares and an executed counterpart signature page to this Agreement, and, upon such execution, such Person shall for all purposes be a "Stockholder" party to this Agreement.

• Stockholder Agreement The Stockholder agrees that, during the period from the date of this Agreement until the Expiration Date:

• Stockholder Rights Plan No claim will be made or enforced by the Company or, with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person” under any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such plan or arrangement, by virtue of receiving Securities under the Transaction Documents or under any other agreement between the Company and the Purchasers.

• Stockholder Rights Plans If the Company has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock, if any, issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable stockholder rights plan, the Conversion Rate shall be adjusted at the time of separation as if the Company distributed to all or substantially all holders of the Common Stock Distributed Property as provided in Section 14.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.

• AMENDMENT OF PARTNERSHIP AGREEMENT; MEETINGS; RECORD DATE Section 13.1 Amendments to be Adopted Solely by the General Partner. Each Partner agrees that the General Partner, without the approval of any Partner, subject to Section 5.12(b)(iii)(B), Section 5.12(b)(iv) and Section 5.13(g), may amend any provision of this Agreement and execute, swear to, acknowledge, deliver, file and record whatever documents may be required in connection therewith, to reflect: (a) a change in the name of the Partnership, the location of the principal place of business of the Partnership, the registered agent of the Partnership or the registered office of the Partnership; (b) the admission, substitution, withdrawal or removal of Partners in accordance with this Agreement; (c) a change that the General Partner determines to be necessary or appropriate to qualify or continue the qualification of the Partnership as a limited partnership or a partnership in which the Limited Partners have limited liability under the laws of any state or to ensure that the Group Members will not be treated as associations taxable as corporations or otherwise taxed as entities for federal income tax purposes; (d) a change that the General Partner determines (i) does not adversely affect the Limited Partners considered as a whole (including any particular class of Partnership Interests as compared to other classes of Partnership Interests) in any material respect (except as permitted by subsection (g) hereof); provided, however, for purposes of determining whether an amendment satisfies the requirements of this Section 13.1(d)(i), the General Partner shall disregard the effect on any class or classes of Partnership Interests that have approved such amendment pursuant to Section 13.3(c), (ii) to be necessary or appropriate to (A) satisfy any requirements, conditions or guidelines contained in any opinion, directive, order, ruling or regulation of any federal or state agency or judicial authority or contained in any federal or state statute (including the Delaware Act) or (B) facilitate the trading of the Units (including the division of any class or classes of Outstanding Units into different classes to facilitate uniformity of tax consequences within such classes of Units) or comply with any rule, regulation, guideline or requirement of any National Securities Exchange on which the Units are or will be listed or admitted to trading, (iii) to be necessary or appropriate in connection with action taken by the General Partner pursuant to Section 5.9 or (iii) is required to effect the intent expressed in the Registration Statement or the intent of the provisions of this Agreement or is otherwise contemplated by this Agreement; (e) a change in the fiscal year or taxable period of the Partnership and any other changes that the General Partner determines to be necessary or appropriate as a result of a change in the fiscal year or taxable period of the Partnership including, if the General Partner shall so determine, a change in the definition of “Quarter” and the dates on which distributions are to be made by the Partnership; (f) an amendment that is necessary, in the Opinion of Counsel, to prevent the Partnership, or the General Partner or its directors, officers, trustees or agents from in any manner being subjected to the provisions of the Investment Company Act of 1940, as amended, the Investment Advisers Act of 1940, as amended, or “plan asset” regulations adopted under the Employee Retirement Income Security Act of 1974, as amended, regardless of whether such are substantially similar to plan asset regulations currently applied or proposed by the United States Department of Labor; (g) an amendment that the General Partner determines to be necessary or appropriate in connection with the creation, authorization or issuance of any class or series of Partnership Interests or options, rights, warrants, appreciation rights or phantom or tracking interests relating to the Partnership Interests pursuant to Section 5.6; (h) any amendment expressly permitted in this Agreement to be made by the General Partner acting alone; (i) an amendment effected, necessitated or contemplated by a Merger Agreement approved in accordance with Section 14.3; (j) an amendment that the General Partner determines to be necessary or appropriate to reflect and account for the formation by the Partnership of, or investment by the Partnership in, any corporation, partnership, joint venture, limited liability company or other entity, in connection with the conduct by the Partnership of activities permitted by the terms of Section 2.4 or 7.1(a); (k) a merger, conveyance or conversion pursuant to Section 14.3(d) or Section 14.3(e); or (l) any other amendments substantially similar to the foregoing.

• Company Lock Up Agreements The Company, on behalf of itself and any successor entity, agrees that, without the prior written consent of the Placement Agent, it will not for a period of thirty (30) days after the date of this Agreement (the “Lock-Up Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any ADSs, Ordinary Shares or other capital stock of the Company or any securities convertible into or exercisable or exchangeable for ADSs, Ordinary Shares or such other shares of capital stock of the Company; (ii) file or cause to be filed any registration statement with the Commission relating to the offering of any ADSs, Ordinary Shares or other shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for shares of capital stock of the Company; or (iii) complete any offering of debt securities of the Company, other than entering into a line of credit with a traditional bank or (iv) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of ADSs, Ordinary Shares or other capital stock of the Company, whether any such transaction described in clause (i), (ii), (iii) or (iv) above is to be settled by delivery of ADSs, Ordinary Shares or other shares of capital stock of the Company or such other securities, in cash or otherwise. The restrictions contained in this Section 3.18 shall not apply to (i) the ADSs, Ordinary Shares and the Placement Agent’s Warrant, (ii) the issuance by the Company of ADSs upon the exercise of the Placement Agent’s Warrant or a stock option or warrant or the conversion of a security outstanding on the date hereof, or issuable pursuant to currently existing undertakings of the Company, which is disclosed in the Registration Statement, Disclosure Package and Prospectus, provided that such options, warrants, and securities have not been amended since the date of this Agreement to increase the number of such securities or to decrease the exercise price, exchange price or conversion price of such securities or to extend the term of such securities, (iii) the issuance by the Company of stock options, shares of capital stock of the Company or other awards under any equity compensation plan of the Company, provided that the underlying shares shall be restricted from sale during the entire Lock-Up Period; and (iv) transactions with members of the management and/or the board of directors of the Company, involving the issuance of equity securities of the Company in consideration of cash, provided that the underlying shares shall be restricted from sale during the entire Lock-Up Period.