Common use of Observer Right Clause in Contracts

Observer Right. (a) For so long as FRC continues to own beneficially shares of Preferred Stock (or Common Stock issued or issuable upon conversion of Preferred Stock), one representative of FRC, who currently is Xxxxxxx Xxxxxx, shall be entitled to attend all meetings of the Board of Directors in a nonvoting observer capacity. The Company shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that such representative may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential proprietary information, or for other similar reasons. (b) For so long as (x) Fidelity Management & Research Company or any nominee holder therefor or any direct or indirect subsidiary thereof which holds Series D Preferred Stock (collectively, “Fidelity”) continues to own beneficially not less than 4,689,766 shares of Series D Preferred Stock (or an equivalent amount of Common Stock issued or issuable upon conversion thereof), or (y) the Company has not consummated a public offering, one representative of Fidelity shall be entitled to attend all meetings of the Board of Directors in a nonvoting observer capacity. The Company shall give Fidelity and such representative copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that Fidelity shall cause such representative to hold in confidence all such materials to the same extent required by the provisions of Section 3.5; and provided further, that such representative may be excluded from access to any material or meeting or portion thereof if the Board of Directors determines in good faith that such exclusion is reasonably necessary to preserve the attorney-client privilege.

Observer Right. (a) For Subject to Section 2.1(c), for so long as FRC continues Xxxx Investor (together with its Permitted Transferees) beneficially owns in the aggregate a number of Outstanding Capital Shares representing at least eight percent (8%) of the number of Outstanding Capital Shares on a fully diluted basis, Xxxx Investor shall have the right to own beneficially shares of Preferred Stock designate one (1) individual (such designee or Common Stock issued or issuable upon conversion of Preferred Stock)its replacement pursuant to this Article II, one representative of FRCas applicable, who currently is Xxxxxxx Xxxxxx, shall be entitled the “Xxxx Observer”) to attend in person or join telephonically all meetings of the Board of Directors and the audit committee and risk committee thereof in a nonvoting non-voting, observer capacity. The Company Xxxx Observer shall give be given notice of all meetings of the Board, including all audit committee and risk committee meetings, in substantially the same manner and at substantially the same time as notice is sent to the members of the Board or such representative copies committee, as the case may be, and shall receive a copy of all notices, minutes, consents, agendas and other materials that it provides material information distributed to its directorsall the members of the Board or such committee in substantially the same manner and at substantially the same time as sent to the members of the Board or such committee, as the case may be; provided, however, that such representative Xxxx Observer shall agree to hold in confidence and trust and to act in enter into a fiduciary manner mutually acceptable customary confidentiality agreement with the Company with respect to all information so provided; and provided further, that such representative may be excluded the Company reserves the right to withhold any information and to exclude any Xxxx Observer from access to any material or the applicable portion of a meeting or portion thereof if the Board of Directors Company’s general counsel determines in good faith that access to such exclusion is information or attendance at such portion of the meeting would reasonably necessary be expected to preserve the result in (A) a loss of an attorney-client privilegeprivilege or attorney work product protection, (B) disclosure of trade secrets or competitively sensitive information relating to protect highly confidential proprietary information, the Company’s or for other similar reasons. (b) For so long as (x) Fidelity Management & Research a Company or any nominee holder therefor or any direct or indirect subsidiary thereof which holds Series D Preferred Stock (collectively, “Fidelity”) continues to own beneficially not less than 4,689,766 shares of Series D Preferred Stock (or an equivalent amount of Common Stock issued or issuable upon conversion thereof)Subsidiary’s business, or (yC) a conflict of interest (including information or meetings with respect to any action to be taken, or any determination to be made, by the Board or a committee thereof regarding any dispute with Xxxx Investor (or any of its Permitted Transferees or Affiliates)); provided, further, that, with respect to clauses (A)-(C), the Company has not consummated uses reasonable efforts, and cooperates in good faith with Xxxx Investor, to develop and implement reasonable alternative arrangements to provide Xxxx Investor with the intended benefits of this Section 2.1(b). Upon Xxxx Investor (together with its Permitted Transferees) ceasing to beneficially own in the aggregate a public offeringnumber of Outstanding Capital Shares representing at least eight percent (8%) of the number of Outstanding Capital Shares on a fully diluted basis, one representative of Fidelity the Xxxx Observer shall be entitled to attend all immediately cease attending meetings of the Board of Directors in a nonvoting observer capacity. The Company shall give Fidelity and such representative copies of all notices, minutes, consentsthe audit committee and risk committee thereof, and other materials that it provides to its directors; providedall rights of Xxxx Investor and obligations of the Company and the Stockholders, however, that Fidelity shall cause such representative to hold in confidence all such materials to the same extent required by the provisions of Section 3.5; and provided further, that such representative may be excluded from access each case with respect to any material or meeting or portion thereof if the Board of Directors determines in good faith that such exclusion is reasonably necessary Xxxx Observer pursuant to preserve the attorney-client privilegethis Article II, shall terminate.