Common use of Observation Rights Clause in Contracts

Observation Rights. Pursuant to the terms of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant In addition to the terms rights to nominate one or more directors provided in Section 5.6, for such time as the Buyers or their affiliates continue to hold at least 10% of the total issued and outstanding Common Stock, the Company and its Subsidiaries shall extend Observation Rights (as defined below) to Buyers or their affiliates. For purposes of this AgreementSection, the Observers term “Observation Rights” shall be entitled mean the right of Buyers or their affiliates to attend, have a representative (an “Observer”) attend as observers, an observer all meetings (including telephonic meetings) of the Boards of Directors of the Company and its Subsidiaries and their respective committees. The Observer shall receive prior written notice of all meetings of the Company's Board Boards of Directors (including telephonic meetings); provided, however, of the Company and its Subsidiaries and their respective committees at the same time that (a) notice of such meetings is given to the Company's Board directors and shall receive all materials and information provided from time to time to the members of the Boards of Directors of the Company and its Subsidiaries and their respective committees. Subject to ordinary and reasonable procedural rules, the Observer may require that participate in a meaningful manner in discussions of matters brought to the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary and shall be permitted to be considered by pose questions and the Board of Directors without shall provide complete responses to the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% questions posed. For the avoidance of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meetingdoubt, the Board must provide Observer shall not be deemed to the Observers, at least five (5) business days prior to such be a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board member of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without or any committee of the Observers being Company and its Subsidiaries. The Company shall reimburse the Observer for the out-of-pocket expenses of the Observer in attendance and for so long as attending such individual is entitled to attend Board meetings, such individuals shall be provided with meetings on the same meeting notices and materials as basis that the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consentsdirectors are reimbursed for their out-of-pocket expenses. Notwithstanding anything to the contrary contained herein, the Observers may opt Observation Rights shall be conditioned on the Observer maintaining the confidentiality of all material non-public material and information provided to terminate the Observer and the Boards of Directors and committees of the Company and its Subsidiaries in accordance with procedures and policies established from time to time in writing by the Company and its Subsidiaries and provided to the Observer; however, notwithstanding any such procedures, the Observer shall be permitted to (A) provide, on a confidential basis, such material and information to the Buyers and their Observation rights effective upon 5 business days affiliates and their respective managers, partners, directors, officers, representatives, advisers, auditors, examiners and counsel who have agreed in writing to observe the confidentiality provisions of this Section 5.7, and (B) provided the Observer gives prior written notice to the Company, following which time the Observers will no longer be provided disclose such material and information in accordance with meeting notices and material. Upon electing to terminate their status as Observersapplicable laws or legal process, the Observers will in no way be considered by the Corporation to be insiders any litigation or affiliates, unless required by applicable lawother proceedings under this Agreement or in accordance with regulatory requirements.

Observation Rights. Pursuant For so long as Apollo and its Affiliates continue to hold at least $22,500,000 of the Mezzanine Notes, Apollo shall have the right to have one (1) representative present (whether in person or by telephone) at all meetings of the boards of the Company and its Subsidiaries (and audit committees thereof); provided that such representative shall not be entitled to vote at such meetings; and provided further that such representative is reasonably acceptable to the terms Company. The Company shall send to such representative all of this Agreementthe notices, information and other materials that are distributed to Directors, and shall provide Apollo with a notice and agenda of each meeting of the boards (and audit committees thereof) of the Company and its Subsidiaries, at the same time as delivered to the Directors. Apollo shall provide notice to the Company of the identity and address of, or any change with respect to the identity or address of, their representative. Notwithstanding the foregoing, the Observers Company or its Subsidiaries, as applicable, shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board excuse such representative of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused Apollo from any portions portion of meetings that involve a meeting of the boards (or audit committee thereof) which discusses any matters directly relating to Apollo, the Mezzanine Notes or business that the Company's Board of Directors, in its reasonable discretion, determines involve matters or business necessary to be considered by the Board of Directors without the Observers being in attendance; Mezzanine Notes Indenture and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% withhold information from the Apollo representative delivered to the boards (or audit committees thereof) prior to a meeting of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observersapplicable board (or audit committee thereof), or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to each case if the Company, following which time or its Subsidiaries, as applicable, believes there is a reasonable likelihood that the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered receipt of such information by the Corporation Apollo representative would create a conflict of interest for the Apollo representative or affect the attorney/client privilege of the Company and its legal advisors or its Subsidiaries or their legal advisors, as applicable. The Company shall reimburse or shall cause its Subsidiaries to be insiders reimburse the Apollo representative for all reasonable travel and other out-of-pocket expenses incurred by the Apollo representative in connection with attending board or affiliates, unless required by applicable lawcommittee meetings.

Observation Rights. Pursuant Each of Mitsui & Co. Venture Partners II, L.P. (“Mitsui”) and Easton Capital Partners, L.P. (“Easton”) shall have the right to the terms receive notice of this Agreement, the Observers shall be entitled to attend, as observers, all meetings of the Company's Board of Directors (including telephonic meetings); provided, however, that (a) the Company's Board of Directors may require that the Observers, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that the Company's Board of Directors, and each of Mitsui and Easton shall have the right to attend up to 50% of such meetings in any calendar year (or designate its reasonable discretionrepresentative to attend such meeting on its behalf) as a nonvoting observer and to comment for the record at any such meeting, determines involve matters provided that Mitsui and Easton (or business necessary their designated representatives) shall coordinate their schedules such that they (or their designated representatives) are not in attendance at the same meeting. Xxxxxxx & Xxxxxxx Development Corporation shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at such meeting. Subject to the fulfillment of the obligations contained in Section 5.1(a), effective as of January 1, 2008, Intersouth (as defined below) shall have the right to designate a representative to attend all meetings of the Board of Directors in any calendar year as a nonvoting observer and to comment for the record at any such meeting. Each observer so appointed as provided above shall sign a confidentiality agreement reasonably acceptable to the Board of Directors of the Company prior to his or her first attendance to his or her first meeting of the Board of Directors. The Company shall provide each such observer attending a meeting of the Board of Directors the materials provided to the Board of Directors with respect to such meeting at the time such materials as provided to the members of the Board of Directors. Notwithstanding anything contained herein to the contrary, no observer shall be considered by permitted to attend any meeting of any committee of the Board of Directors without the Observers being in attendance; and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part consent of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board majority of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's such committee. The Board of Directors, including but not limited or the members of any committee thereof, as applicable, shall have the right to copies prevent access by any or all observers to any meeting of all proposed and final resolutionsthe Board of Directors, minutes and written consents. Notwithstanding anything or committee thereof, respectively, or any portion thereof, if a majority of the directors present at such meeting deem, in their sole discretion, such action necessary to protect the contrary herein, confidential information of the Observers may opt Company or in order to terminate their Observation rights effective upon 5 business days written notice to comply with the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable lawprovisions of this Section 4.1(d).

Observation Rights. Pursuant to Two representatives appointed by the terms of this AgreementPurchasers (the "Current Observers" and collectively with the Purchasers' Replacement Observers, the Observers "Observers")) shall be entitled to attend, serve as observers, observers at all meetings of the Company's Board and each Subsidiary Board, and any committees thereof. Such right shall from time to time be exercisable by delivery to the Company of Directors (including telephonic meetings); written notice from the Purchasers specifying the names of the Current Observers. Each Observer shall have all of the rights of a member of the Board and each Subsidiary Board, provided, however, that no Observer shall have the right to vote on matters on which the members of the Board or any Subsidiary Board are entitled to vote. Each of the Company and its Subsidiaries will give each Observer reasonable prior notice (ait being agreed that the same prior notice given to the Board and each Subsidiary Board shall be deemed reasonable prior notice) in any manner permitted in the Company's Board or each Subsidiary's By-laws for notices to directors of Directors may require that the Observers, or either time and place of them, not attend any particular Board proposed meeting or be excused from any portions of meetings that involve matters or business that the Company's each such Board of Directors, such notice in its reasonable discretion, determines involve matters or business necessary all cases to include true and complete copies of all documents furnished to any director in connection with such meeting. Each Observer will be entitled to be considered present in person as an observer at any such meeting or, if a meeting is held by telephone conference, to participate therein. Each of the Company and its Subsidiaries will deliver to each Observer copies of all papers which may be distributed from time to time to the members of the Board and each Subsidiary Board at such time as such papers are so distributed to them, including copies of any written consent. In addition, from time to time upon the request of each Observer, the Company or each Subsidiary will furnish to such Observer such information regarding the business, affairs, prospects and financial condition of the Company or each Subsidiary as such Observer may reasonably request. Each of the Company and its Subsidiaries shall pay, or reimburse, the Observers for all travel and related expenses incurred by the Board Observers in connection with attending such meetings and monitoring the Purchasers' investment in the Convertible Debentures. Each Observer shall hold in confidence all nonpublic information of Directors without the Observers being Company provided or made available to such Observer pursuant to this Section 6.2(b) until such time as such information has become publicly available other than as a consequence of any breach by such Observer or any Purchaser of its confidentiality obligations hereunder (provided that such information may be disclosed to any other Persons who are bound by this provision) and shall not (1) trade or otherwise directly or indirectly transfer any Securities of the Company in attendance; violation of the Securities Act or Exchange Act or (2) use such information for any purpose other than exercise of its rights as a holder of Securities and its rights under this Agreement and the other Financing Documents. The rights of the Purchasers in subsections (a) and (b) such rights shall exist for each such individual only for so long as such individual owns at least 1.0% above are all of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary and rare circumstance exists such that the Observers, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except Purchasers' rights with respect to matters or business as to which the Company's Board appointment of Directors has determined should be considered by the Board of Directors without the Observers being in attendance and for so long as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members of the Company's Board of Directorsand any Subsidiary Board and Observer rights, including but and are not limited to copies of all proposed and final resolutions, minutes and written consents. Notwithstanding anything in addition to the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice provided to the Purchasers pursuant to Section 5.3(c) of the Securities Purchase Agreement dated as of January 10, 2001, among the Purchasers and the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered by the Corporation to be insiders or affiliates, unless required by applicable law.

Observation Rights. Pursuant to The Board of Directors of Borrower shall hold its meetings on a regular basis but in any event shall meet at least quarterly. Unless the terms Obligations shall have been paid in full, then beginning with the six month anniversary of this Agreementthe Termination Date, the Observers Lenders shall be entitled have the right to attend, as observers, have one representative attend any and all meetings of the Company's Board of Directors and all of its committees (including telephonic meetings); providedany adjournments thereof) of each Credit Party either in person or by such other method as shall be allowed under the Bylaws for Directors. Notwithstanding any implication to the contrary contained herein, however, that (a) no meeting of the Company's Board of Directors may require that of any Credit Party or any committee thereof shall be conducted unless such representative of the ObserversLenders shall have been given prior written notice of such meeting at least two (2) Business Days prior to the date of such meeting. 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, or either of them, not attend any particular Board meeting or be excused from any portions of meetings that involve matters or business that and the Company's applicable Board of Directors, Directors shall consider such suggestions and requests in its good faith. Except when the attorney-client privilege would be compromised in the reasonable discretion, determines involve opinion of counsel for the Credit Parties or in order to protect any confidential matters or business necessary discussed therein with respect to which the Lenders may reasonably be considered determined by the Board of Directors without to have a material and substantial conflicting interest, the Observers being Credit Parties hereby waive any right to exclude such representative from any such meeting or any right, whether legal, procedural or otherwise, to conduct any such meetings in attendance; and (b) executive session or otherwise to the exclusion of such rights shall exist for each such individual only for so long as such individual owns at least 1.0% representative. Exercise of the outstanding shares of the Company's Common Stock. Should the Company's Board of Directors determine that an extraordinary rights granted in this Section 6.01(h) shall not be, and rare circumstance exists such that the Observersshall not be deemed to be, or either of them, should be asked not to attend all or part of a Board meeting, the Board must provide to the Observers, at least five (5) business days prior to such a meeting, with a written explanation detailing the reasons for the exclusion; provided that the Company's Board of Directors may not exclude one or both of the Observers from meetings or portions of meetings during which the Board will address either stockholder or compensation matters. 106 Except with respect to matters or business as to which the Company's Board of Directors has determined should be considered participation by any Lender on the Board of Directors without of the Observers being in attendance Borrower or the other Credit Parties. In addition to the foregoing, the representative of the Lenders shall have the right to review any material consent resolutions of the Board of Directors of any Credit Party or any committee thereof prior to the execution thereof, and for so long to make such suggestions and requests with respect thereto as such individual is entitled to attend Board meetings, such individuals shall be provided with the same meeting notices and materials as the members representative deems appropriate on behalf of the Company's Board of Directors, including but not limited to copies of all proposed and final resolutions, minutes and written consentsLenders. Notwithstanding anything to The Borrower will pay for the contrary herein, the Observers may opt to terminate their Observation rights effective upon 5 business days written notice to the Company, following which time the Observers will no longer be provided with meeting notices and material. Upon electing to terminate their status as Observers, the Observers will in no way be considered reasonable out-of-pocket expenses incurred by the Corporation to be insiders representative in attending Board and committee meetings or affiliates, unless required by applicable lawexercising any rights hereunder.