Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01. (b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 3 contracts
Samples: Stockholders and Registration Rights Agreement (Altice USA, Inc.), Stockholders and Registration Rights Agreement (Altice USA, Inc.), Stockholders and Registration Rights Agreement (Altice USA, Inc.)
Observer Rights. (a) For so As long as each X. Xxxx Price owns not less than ten percent (10%) of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the issued and outstanding Class A Shares and Class B Shares (without regard to Series D Preferred Stock owned by it as of the voting power date of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on this Agreement, the Board, such Sponsor Entity Company shall have the right to designate invite one (1) non-voting observer representative of X. Xxxx Price to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board board reasonably concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a Competitor, each as determined in good faith by the Company.
(b) The Company shall invite one (1) representative of the Investors, which shall be designated by the Lead Investor, to attend all meetings of its Board of Directors and any committees thereof in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors or committee members at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if the board reasonably concludes that access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor, each as determined in good faith by the Company. The Company shall reimburse the representative for its reasonable expenses incurred in connection with attendance at meetings of the material Board of Directors or such portion any of its committees.
(c) As long as the Lead Investor owns not less than ten percent (10%) 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 shares of the BoardSeries E Preferred Stock it originally purchased under the Purchase Agreement (as adjusted for any stock split, independent auditors and/or legal counselstock dividend, as combination, or other recapitalization or reclassification effected after the Board may designate, and date hereof or an Observer (assuming such Observer were a member equivalent amount of the Board) would not meet the then-applicable standards for independence adopted by the New York Common Stock Exchange (the “NYSE”issued upon conversion thereof), or such other exchange on which the Lead Investor will be entitled to appoint one (1) representative to attend any meetings of the Company’s securities subsidiaries’ board of directors or managers (or a similar body) and any committee thereof, as applicable, in a nonvoting observer capacity on the same terms noted in Section 3.3(b) above, if any only if, any of the Company’s holders of Preferred Stock, acting alone as a separate class or series (or a combination thereof), are then tradedspecifically entitled to appoint a board member or manager (or comparable person) of such Company subsidiary and elect to appoint such board member or manager (or comparable person). The Company shall reimburse the representative for its reasonable expenses incurred in connection with attendance at meetings of the Board of Directors or the meetings of the managers (or a similar body), as applicable and the committees thereof.
Appears in 3 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (CarGurus, Inc.), Investors’ Rights Agreement (CarGurus, Inc.)
Observer Rights. (a) For so As long as each Xxxxxx, XxXxxxxx & Partners II, L.P. together with its affiliates (collectively, “TMP”) holds at least fifty percent (50%) of the BCP Entities and shares of Series A Preferred Stock purchased by TMP from the CPPIB Entities individually own four percent (4%) or more Company, the Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard TMP to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a non-voting capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as provided to such directors; provided that such representative shall agree to hold in confidence and trust all information so provided; and provided further that the Company reserves the right to exclude such representative from access to any of such materials or meetings or portions thereof if and to the extent that (i) in the good faith judgment of a majority of the directors of the Board (Company after obtaining the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that counsel such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, (ii) in the good faith judgment of a majority of the directors of the Company, such access would materially impair the due consideration by the Board of any matter, or (iii) any third party has, with respect to materials or information to be distributed to or considered by the Board, requested or required that such information not be shared beyond a group which does not include such representative. The Company shall reimburse such TMP representative for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the Board.
(b) With respect to any Holder of Series C Preferred Stock originally purchased from the Company (an “Original Series C Investor”) which continues to hold (together with its Affiliates) at least 2,000,000 shares of Series C Preferred Stock (as adjusted for stock splits, recapitalizations, etc.), other than TMP (which is addressed in Section 3.5(a) above) as well as any other Original Series C Investor for so long as such Original Series C Investor has the right (considered together with its Affiliates and whether pursuant to a contractual right, ownership of the requisite shares, or otherwise) to have its counselor or (B) nominee elected to the Board, the Company shall invite a representative of such Original Series C Investor to attend all meetings of the Board in a non-voting capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and other materials that an Observer has a potential conflict of interestit provides to its directors at the same time and in the same manner as provided to such directors; provided, howeverthat such representative shall agree to hold in confidence and trust all information so provided; provided, further, that the Company reserves the right to exclude such representative from access to any of such materials or meetings or portions thereof if and to the extent that (i) in the good faith judgment of a majority of the directors of the Company after obtaining the advice of counsel such exclusion shall apply only to such portion of the material or such portion of the meeting which would be required is reasonably necessary to preserve such privilege and not to any other portion thereof; or
the attorney-client privilege, (ii) such portion in the good faith judgment of a meeting is an executive session limited solely majority of the directors of the Company, such access would materially impair the due consideration by the Board of any matter, or (iii) any third party has, with respect to independent director members of materials or information to be distributed to or considered by the Board, independent auditors requested or required that such information not be shared beyond a group which does not include such representative; and provided, finally, that the rights of any such holder pursuant to this Section 3.5(b) shall terminate in the event of any of the following: (x) such Original Series C Investor (considered for this purpose together with all of its Affiliates) fails to participate in each additional financing of the Company on a pro rata basis (assuming and/or legal counselto the extent that such participation is made available to such Original Series C Investor with advance notice and a reasonable opportunity to participate, and “pro rata basis” is determined approximately in accordance with Section 4); or (y) an IPO.
(c) With respect to the Wellington Investors (defined below), as long as the Wellington Investors hold at least fifty percent (50%) of the shares of Series F Preferred Stock purchased from the Company, the Company shall invite one representative of the Wellington Investors to attend all meetings of the Board may designatein a non-voting capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and an Observer other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, that such representative shall agree to hold in confidence and trust all information so provided; provided, further, that the Company reserves the right to exclude such representative from access to any of such materials or meetings or portions thereof if and to the extent that (assuming such Observer were i) in the good faith judgment of a member majority of the Boarddirectors of the Company after obtaining the advice of counsel such exclusion is reasonably necessary to preserve the attorney-client privilege, (ii) in the good faith judgment of a majority of the directors of the Company, such access would not meet materially impair the then-applicable standards for independence adopted due consideration by the New York Stock Exchange (the “NYSE”)Board of any matter, or (iii) any third party has, with respect to materials or information to be distributed to or considered by the Board, requested or required that such other exchange on information not be shared beyond a group which does not include such representative; and provided, finally, that the Company’s securities are then tradedrights of any such holder pursuant to this Section 3.5(c) shall terminate in the event of an IPO.
Appears in 3 contracts
Samples: Investors’ Rights Agreement (Invitae Corp), Investors’ Rights Agreement (Invitae Corp), Investors’ Rights Agreement (Invitae Corp)
Observer Rights. (a) For so long as Kirin meets the Kirin Nomination Requirement, (x) the Company shall cause each of the BCP Entities and the CPPIB Entities individually own four percent its Subsidiaries to invite a representative of Kirin to attend all meetings of its board of directors (4%or applicable governing body) (or more any committee meetings of the issued foregoing), and outstanding Class A Shares and Class B Shares (without regard y) the Company shall use its commercially reasonable efforts to the voting power cause each of such Class B Sharesits controlled Affiliates (including Tecton) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate invite one (1) non-voting observer representative of Kirin to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its board of directors (or applicable governing body) (or any committees of the Board foregoing) in a nonvoting observer capacity and, in this respect, shall give copies of all notices, minutes, consents, and any committee thereof and shall be notified other materials that it provides to directors (or other members of any such meeting by reasonable prior notice, including such meeting’s the applicable governing body) at the same time and place, in the same manner as the provided to such directors (or other members of the Board applicable governing body); provided, however, that each such representative shall agree in writing to a nondisclosure agreement in a reasonable and customary form approved by the Company (provided any such agreement shall be in substantially the “same form and no more restrictive than any similar agreement signed by the other directors or other members of the applicable governing body and otherwise consistent with the conditions set forth in Section 2(e)), which shall provide that such representative will hold in confidence and trust all information so provided; and provided, further, that each Subsidiary and controlled Affiliate may withhold any information and exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting reasonably would, after consultation with the Company’s (or such controlled Affiliate’s) outside legal counsel, adversely affect the attorney-client privilege between the respective Subsidiary or controlled Affiliate and its counsel or result in disclosure of trade secrets or a conflict of interest, as determined in good faith by a majority of the members of such Subsidiary’s board of directors who were not nominated by, and are not affiliated with, Kirin or Mitsui, or a majority of the members the board of directors (or applicable governing body) of such controlled Affiliate who were not nominated by, and are not affiliated with, Kirin or Mitsui, or the Disinterested Directors”.
(b) For so long as Mitsui meets the Mitsui Nomination Requirement, (x) the Company shall cause each of its Subsidiaries to invite a representative of Mitsui to attend all meetings of its board of directors (or applicable governing body) (or any committee meetings of the foregoing), and (y) the Company shall receive use its commercially reasonable efforts to cause each of its controlled Affiliates (including Tecton) to invite one (1) representative of Mitsui to attend all meetings of its board of directors (or applicable governing body) (or any committees of the foregoing) in a nonvoting observer capacity and, in this respect, shall give copies of all written notices, minutes, consents, and other materials distributed that it provides to directors (or other members of the Directors for purposes of such meetings applicable governing body) at the same time and in the same manner as provided to such directors (or other members of the Directors (except to applicable governing body and otherwise consistent with the extent an Observer has been excluded therefrom pursuant to conditions set forth in Section 3.01(b3(e)); provided, however, that each such representative shall agree in writing to a nondisclosure agreement in a reasonable and customary form approved by the Observer Company (provided any such agreement shall have executed a non-disclosure be in substantially the same form and confidentiality no more restrictive than any similar agreement and such signed by the other acknowledgments and agreements reasonably satisfactory to directors or other members of the Board and the Sponsor Entity that designated such Observerapplicable governing body), which for the avoidance of doubt, shall permit the Observer to share provide that such representative will hold in confidence and trust all information as provided in Section 5.04so provided; and provided, further, that each Subsidiary and controlled Affiliate may withhold any information and exclude such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board representative from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faithif access to such information or attendance at such meeting reasonably would, upon advice of after consultation with the Company’s (or Tecton’s) outside legal counsel, (A) that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company respective Subsidiary or controlled Affiliate and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion as determined in good faith by a majority of the material members of such Subsidiary’s board of directors who were not nominated by, and are not affiliated with, Kirin or such portion Mitsui, or a majority of the meeting which would be required to preserve members the board of directors (or applicable governing body) of such privilege and controlled Affiliate who were 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 designatenominated by, and an Observer (assuming such Observer were a member of the Board) would are not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)affiliated with, Kirin or Mitsui, or such other exchange on which the Company’s securities are then tradedDisinterested Directors.
Appears in 3 contracts
Samples: Nominating, Observer and Secondment Agreement (Thorne Healthtech, Inc.), Nominating, Observer and Secondment Agreement (Thorne Healthtech, Inc.), Nominating, Observer and Secondment Agreement (Thorne Healthtech, Inc.)
Observer Rights. (a) For So long as the Company shall not be a company required to file reports with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, the Company shall allow (1) two representatives designated by Longitude Venture Partners III, L.P. (“Longitude”), who are reasonably acceptable to the Company and who shall initially be Xxxxxx Xxxxxxxx and Xxxx Xxxxxxx, so long as each Longitude shall hold any shares of Preferred Stock, (2) one representative designated by New Enterprise Associates 15, L.P. (“NEA”), who is reasonably acceptable to the Company and who shall initially be Xxxxx Xxxxxx, so long as NEA shall hold any shares of Preferred Stock, (3) one representative designated by Novo, who is reasonably acceptable to the Company and who shall initially be Xxxxxxxx Xxx, so long as Novo shall hold any shares of Preferred Stock, (4), one representative designated by Sanofi US (“Sanofi”), who is reasonably acceptable to the Company and who shall initially be Xxxxxxx Xxxxx, so long as Sanofi shall hold any shares of Preferred Stock, (5) Xx. Xxxxxxxxx Xxxxxxxx (“Xxxxxxxx”) so long as he shall own at least 25% of the BCP Entities shares of Common Stock that he owned on April 13, 2017, subject to appropriate adjustment for any stock splits, stock dividends, combinations, recapitalizations and the CPPIB Entities individually own four percent like, and (4%6) or more of the issued and outstanding Class A Shares and Class B Shares one representative designated by Pivotal bioVenture Partners LLC (without regard “Pivotal”), who is reasonably acceptable to the voting power Company and who shall initially be Xxx Xxxxxxx, so long as Pivotal shall hold any shares of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardPreferred Stock, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board as observers, but without any right to make any motion or to vote (the “Observers”), and any committee thereof and in connection therewith, the Company shall be notified give the Observers copies of any such meeting by reasonable prior noticeall notices, including such meeting’s time and placeminutes, in the same manner as the directors written consents of the Board (to action taken without a meeting and other materials, financial or otherwise, which the “Directors”) and shall receive copies of all written materials distributed Company provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))Board; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer observation rights (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend including the right to appoint an Observer in accordance with this Section 3.01.
(breceive notices, minutes, consents and other materials) Notwithstanding the foregoingprovided hereby shall be temporarily suspended, the Company may exclude an Observer and any one or more Observers shall be excluded from access to any material or meeting or portion thereof if:
thereof, if (i) the Board concludes in good faithCompany believes, upon the advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary or appropriate to preserve the attorney-client privilege between or to protect confidential or proprietary information of the Company and its counselor or a third party; or (Bii) that with respect to Xxxxxxxx, there exists, with respect to any meeting of the Board or any portion thereof or any deliberation by the Board or consent or material being furnished to the Board, an Observer has a actual or potential conflict of interestinterest between Xxxxxxxx and the Company. The rights of observation provided hereby shall not extend to any meeting of any committee of the Board; provided, however, that the Company will furnish to the Observer copies of minutes of committee meetings and actions taken by each committee by written consent, subject to the foregoing limits.
(b) Before an initial Observer named in this Section or any subsequent designee as an Observer shall attend any meeting or receive any information or materials, such exclusion Observer each shall apply only execute and deliver to the Company an agreement requiring such portion Observer to maintain the confidentiality of information and restricting the use thereof, such agreement to be in the form specified by the Company.
(c) The Holders agree that any action duly taken by the Board shall not be invalidated by virtue of the material fact that an Observer was not properly notified of, or such portion of was not in attendance at, the meeting at which would be required to preserve such privilege and not action was taken or that the Company may have breached this Section 3.7.
(d) If a Special Mandatory Conversion occurs with respect to any other portion thereof; or
(ii) Investor entitled to designate one or more Observers pursuant to this Section 3.7 or with respect to any Affiliate of such portion Investor, then such Investor’s right to designate one or more Observers under this Section 3.7 shall immediately terminate and the observation rights 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 an Observer (assuming all Observers designated by such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedInvestor shall immediately terminate.
Appears in 3 contracts
Samples: Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.), Investor Rights Agreement (Inozyme Pharma, Inc.)
Observer Rights. (a) For so As long as each the Wellington Investors own, collectively, at least 2,308,000 shares (appropriately adjusted for any stock split, dividend, combination or other recapitalization) of Series E Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Company shall have the right to designate invite one (1) non-voting observer representative of the Wellington Investors, collectively to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placein a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer all information so provided shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory be subject to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.043.8 hereof; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
if (a) access to such information or attendance at such meeting could (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and its counselor counsel or (Bii) result in disclosure of trade secrets or similar confidential information to such representative or (b) such representative is affiliated with a Competitor of the Company. For clarity, the Wellington Investors are responsible for the acts and omissions of any such observer as their Permitted Disclosee for purposes of Section 3.8 hereof.
(b) As long as the Fidelity Investors own, collectively, at least 3,464,000 shares (appropriately adjusted for any stock split, dividend, combination or other recapitalization) of Series E Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one (1) representative of the Fidelity Investors, collectively to attend all meetings of its Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and other materials that an Observer has a potential conflict of interestit provides to its directors; provided, however, that all information so provided shall be subject to Section 3.8 hereof; provided, further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if (a) access to such portion of information or attendance at such meeting could (i) adversely affect the material attorney-client privilege between the Company and its counsel or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or
(ii) result in disclosure of trade secrets or similar confidential information to such portion of representative or (b) such representative is affiliated with a meeting is an executive session limited solely to independent director members Competitor of the BoardCompany. For clarity, independent auditors and/or legal counsel, the Fidelity Investors are responsible for the acts and omissions of any such observer as the Board may designate, and an Observer (assuming such Observer were a member their Permitted Disclosee for purposes of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedSection 3.8 hereof.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Peloton Interactive, Inc.), Investors’ Rights Agreement (Peloton Interactive, Inc.)
Observer Rights. (a) For so long as The Company shall invite a representative of each Investor which has purchased, together with its affiliates, shares of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more Preferred Stock by payment of the issued and outstanding Class A Shares and Class B Shares (without regard consideration to the voting power Company in excess of such Class B Shares) $2,000,000 and there is no Director who is a designee of such Sponsor Entity not represented on the Board, such Sponsor Entity shall have the right to designate one Company’s Board of Directors (1) non-voting observer to the Board (each, an “ObserverObserver Investor”). The appointment and removal of any Observer shall be by written notice , to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written materials distributed notices, minutes, consents, and other material that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
if (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interestcounsel; 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 Observer Investor or its representative is a direct competitor of the Company; or (iii) a meeting is an executive session limited solely to independent director majority of the members of the Board, independent auditors and/or legal counsel, as Board of Directors vote to exclude such representative from any meeting or from any portion thereof. Such representative may participate in discussions of matters brought to the Board may designateof Directors. Each Observer Investor agrees, and an Observer (assuming such Observer were a member any representative of the BoardObserver Investor will agree, to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to it or learned by it in connection with its rights hereunder, except to the extent otherwise required by law and any other regulatory process to which Observer Investor is subject. The covenants of the Company set forth in this Section 4.6 shall terminate and be of no further force or effect upon the earliest to occur of (i) would not meet the then-applicable standards sale of all or substantially all of the assets of the Company or the acquisition of the Company by another entity by means of merger or consolidation resulting in the exchange of the outstanding shares of the Company for independence adopted securities or consideration issued, or caused to be issued, by the New York Stock Exchange (acquiring corporation or its subsidiary, unless the “NYSE”)stockholders of the Company hold at least 50% of the voting power of the surviving corporation in such a transaction, or such other exchange (ii) the first date on which the Company’s securities are then tradedCompany becomes subject to the reporting requirements of Sections 13 of 15(d) of the Exchange Act.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Endocyte Inc), Investors’ Rights Agreement (Endocyte Inc)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent OrbiMed Private Investments V, L.P. (4%“OrbiMed”) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee Major Investor, the Company shall invite a representative of such Sponsor Entity on the Board, such Sponsor Entity shall have the right OrbiMed to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a competitor of the Company. For so long as Novartis Institutes for BioMedical Research, Inc. or its Affiliates (“Novartis”) is a Major Investor, the Company shall invite a representative of Novartis to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a competitor of the material or such portion Company. For the purposes of this Subsection 3.3, Novartis shall not be deemed a competitor of the meeting which would be required to preserve such privilege Company. For so long as 667, L.P. and not to any other portion thereof; or
Xxxxx Brothers Life Sciences, L.P. (iicollectively, “Xxxxx Bros”) such portion of a meeting is an executive session limited solely to independent director members own at least 75% of the Boardaggregate Series B Preferred Stock Xxxxx Bros purchased pursuant to the Purchase Agreement, independent auditors and/or legal counselthe Company shall invite a representative of Xxxxx Bros to attend all meetings of its Board of Directors in a nonvoting observer capacity and, as the Board may designatein this respect, shall give such representative copies of all notices, minutes, consents, and an Observer (assuming other materials that it provides to its directors at the same time and in the same manner as provided to such Observer were directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a member fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a competitor of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Intellia Therapeutics, Inc.), Investors' Rights Agreement (Intellia Therapeutics, Inc.)
Observer Rights. (a) For so long Beginning on the First Closing Date (as each of defined in the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B SharesPurchase Agreement) and there is no Director who is a designee of such Sponsor Entity ending on the Boarddate on which all principal, interest and all other sums payable under the Notes held by the Investor and any of its Affiliates are paid and satisfied in full (the “Board Rights Termination Date” and such Sponsor Entity shall have period from the right to designate one (1) non-voting observer date of this Agreement to the Board Rights Termination Date, the “Observation Period”), the REIT grants to the Investor the option and right, exercisable at any time during the Observation Period by delivering a written notice of such appointment to the REIT, to appoint a single representative (each, an the “Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings (including telephonic or videoconference meetings and meetings held in executive session) of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior noticeall Committees during the Observation Period in a non-voting, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))observer capacity; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which (x) for the avoidance of doubt, Investor may designate more than one representative of Investor as an Observer but only one such representative shall permit the Observer be entitled to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by attend any particular meeting of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business Committee, and (y) any such representative shall have executed and delivered to the REIT a copy of the Acknowledgement and Agreement to be Bound in the form attached hereto as Exhibit A (the “Acknowledgement”). The Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration, but in no event shall the Observer (i) be deemed to be a member of the Board or any Committee; (ii) except for (and without limitation of) the obligations expressly set forth in this Agreement and the Acknowledgement, have or be deemed to have, or otherwise be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to, any duties (fiduciary or otherwise) to the extent permitted by applicable lawREIT or its stockholders; provided, further, that if at any time or (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend iii) have the right to appoint an propose or offer any motions or resolutions to the Board or Committees. Upon request, the REIT shall allow the Observer in accordance with this Section 3.01to attend Board or Committee meetings by telephone or electronic communication. The presence of the Observer shall not be required for purposes of establishing a quorum.
(b) The REIT shall provide to the Observer copies of all notices, minutes, consents and other materials that it provides to Board members (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the Board members.
(c) Notwithstanding anything herein to the foregoingcontrary, the Company REIT may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company REIT or its Affiliates and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
or (ii) such portion Board Materials or discussion relates to an existing or potential contractual relationship or transaction between the REIT or any of a meeting is an executive session limited solely to independent director members of its Affiliates and the Board, independent auditors and/or legal counsel, as Investor or its Affiliates.
(d) From and after the Board may designateRights Termination Date, any rights of Investor and an the Observer (assuming such Observer were a member of the Boardprovided in Sections 1(a) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedand 1(b) shall cease.
Appears in 2 contracts
Samples: Note Purchase Agreement (Sotherly Hotels Lp), Board Observer Agreement (Sotherly Hotels Lp)
Observer Rights. (a) For so As long as each Novo Holdings A/S together with its Affiliates own not less than 100,000 shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations), the BCP Entities and the CPPIB Entities individually own four percent Company shall invite a representative of Novo (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer which representative shall be by designated in a written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled Company) to be present at attend all meetings of the its Board of Directors and any committee thereof its committees and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors meetings of the Board Boards of Directors and committees thereof of its subsidiaries in a nonvoting observer capacity (the “DirectorsNovo Observer”) and and, in this respect, shall receive give the Novo Observer copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Novo Observer shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding withhold any information and to exclude the foregoing, the Company may exclude an Novo Observer from access to any material or meeting or portion thereof if:
(i) if the Board concludes of Directors determines in good faith, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion information or attendance at such meeting is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor counsel or result in disclosure of trade secrets or other highly confidential proprietary technical information.
(Bb) As long as Eventide together with its Affiliates own not less than 100,000 shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations), the Company shall invite a representative of Eventide (which representative shall be designated in a written notice to the Company) to attend all meetings of its Board of Directors and its committees and meetings of the Boards of Directors and committees thereof of its subsidiaries in a nonvoting observer capacity (the “Eventide Observer”) and, in this respect, shall give the Eventide Observer copies of all notices, minutes, consents, and other materials that an Observer has a potential conflict of interestit provides to its directors; provided, however, that the Eventide Observer shall agree to hold in confidence and trust; and provided further, that the Company reserves the right to withhold any such exclusion shall apply only information and to exclude the Eventide Observer from any meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that access to such portion information or attendance at such meeting is reasonably necessary to preserve the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or other highly confidential proprietary technical information. Eventide may terminate its representative’s status as the Eventide Observer at any time in Eventide’s discretion, including such period of time prior to the consummation of an IPO as Eventide may determine.
(c) As long as Surveyor together with its Affiliates own not less than 100,000 shares of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof) (subject to appropriate adjustment for stock splits, stock dividends, combinations, and other recapitalizations), the Company shall invite a representative of Surveyor (which representative shall be designated in a written notice to the Company) to attend all meetings of its Board of Directors and its committees and meetings of the material or such portion Boards of the meeting which would be required to preserve such privilege Directors and not to any other portion thereof; or
(ii) such portion committees thereof of its subsidiaries in 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange nonvoting observer capacity (the “NYSESurveyor Observer”)) and, in this respect, shall give the Surveyor Observer copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that the Surveyor Observer shall agree to hold in confidence and trust; and provided further, that the Company reserves the right to withhold any information and to exclude the Surveyor Observer from any meeting or portion thereof if the Board of Directors determines in good faith, upon advice of counsel, that access to such information or attendance at such meeting is reasonably necessary to preserve the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or other exchange on which the Company’s securities are then tradedhighly confidential proprietary technical information.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Praxis Precision Medicines, Inc.), Investors’ Rights Agreement (Praxis Precision Medicines, Inc.)
Observer Rights. (a) For so long as each the shares of the BCP Entities and the CPPIB Entities individually own four percent (4%) Series A Stock constitute 8% or more of the issued and outstanding Class A Shares share capital of the Company (excluding the shares of Preferred F Stock and Class B Shares (without regard to treating the voting power Warrant, for such purpose, as if it was exercised on the applicable date of such Class B Shares) and there is no Director who is calculation), the holders representing a designee majority of such Sponsor Entity on the BoardSeries A Stock, such Sponsor Entity voting as a separate class, shall have the right be entitled to designate one (1) non-voting observer, which designee, subject to a customary confidentiality undertaking by such designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other materials which the Company provides to its Board (eachincluding committees thereof) and the right to attend, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at but not vote at, all meetings of the Board (including executive sessions and any committee thereof and shall be notified of any such meeting by reasonable prior noticemeetings), including such meeting’s time and placeprovided that the Board, acting in the same manner as the directors of good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal professional (the “Directors”or attorney/client) and shall receive copies privilege, to avoid a conflict of all written materials distributed interests or to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, protect information that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements it reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not considers to be taken by the Board a trade secret or be counted for purposes of determining whether there is a sufficient quorum for the Board similar confidential information, exclude such observer from any meeting or part thereof or to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board refrain from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the providing such observer with certain information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01or documentation.
(b) Notwithstanding For so long as the foregoingshares of Series B Stock constitute 5% or more of the issued and outstanding share capital of the Company (excluding the shares of Preferred F Stock and treating the Warrant, for such purpose, as if it was exercised on the applicable date of such calculation), the holders representing a majority of the Series B Stock, voting as a separate class, shall be entitled to designate one (1) non-voting observer, which designee, subject to a customary confidentiality undertaking by such designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other materials which the Company may exclude an Observer from access provides to any material or meeting or portion thereof if:
its Board (iincluding committees thereof) and, the right to attend, but not vote at, all meetings of the Board concludes (including executive sessions and committee meetings), provided that the Board, acting in good faith, upon advice of may, where the Company’s outside legal counsel, (A) that such exclusion is Board considers it reasonably necessary to do so in order to preserve legal professional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
(c) For so long as the shares of Series C Stock constitute 5% or more of the issued and outstanding share capital of the Company (excluding the shares of Preferred F Stock and treating the Warrant, for such purpose, as if it was exercised on the applicable date of such calculation), the holders representing a majority of the Series C Stock, voting as a separate class, shall be entitled to designate one (1) non-voting observer, which designee, subject to a customary confidentiality undertaking by such designee (for the avoidance of doubt a confidentiality undertaking substantially similar to confidentiality undertaking set forth in the Management Rights Letter (as defined in the Purchase Agreement) shall be deemed to be customary for the purposes of this Agreement), shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other materials which the Company provides to its Board (including committees thereof) and, the right to attend, but not vote at, all meetings of the Board (including executive sessions and committee meetings), provided that the Board, acting in good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal professional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
(d) For so long as Mitsui & Co. Venture Partners III, LLC (“Mitsui”) continues to hold Preferred Stock having an aggregate original purchase price of at least $4,000,000, it shall be entitled to designate one (1) non-client privilege voting observer, which designee, subject to a customary confidentiality undertaking by such designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other materials which the Company provides to its Board (including committees thereof) and, the right to attend, but not vote at, all meetings of the Board (including executive sessions and committee meetings), provided that the Board, acting in good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal professional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
(e) Notwithstanding anything to the contrary in this Agreement, the terms and conditions set forth in the Letter Agreement entered by and between the Company and its counselor or Intel Capital Corporation (B“Intel Capital”) that an Observer has a potential conflict of interest; providedon November 22, however2010, that any such exclusion shall apply only with respect to such portion Intel Capital's entitlement to Board observation rights.
(f) For so long as Sapphire Ventures continues to hold 2% or more of the material or such portion issued and outstanding share capital of the meeting Company (excluding the shares of Preferred F Stock and treating the Warrant, for such purpose, as if it was exercised on the applicable date of such calculation), it shall be entitled to designate one (1) non-voting observer, which would be required designee, subject to preserve a customary confidentiality undertaking by such privilege designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and not to any other portion materials which the Company provides to its Board (including committees thereof; or
) and, the right to attend, but not vote at, all meetings of the Board (ii) such portion of a meeting is an including executive session limited solely to independent director members of sessions and committee meetings), provided that the Board, independent auditors and/or acting in good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal counselprofessional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
(g) For so long as NGP III SPV continues to hold 2% or more of the issued and outstanding share capital of the Company (excluding the shares of Preferred F Stock and treating the Warrant, for such purpose, as if it was exercised on the applicable date of such calculation), it shall be entitled to designate one (1) non-voting observer, which designee, subject to a customary confidentiality undertaking by such designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other materials which the Company provides to its Board (including committees thereof) and, the right to attend, but not vote at, all meetings of the Board may designate(including executive sessions and committee meetings), provided that the Board, acting in good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal professional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
(h) For so long as Xxxxxxx Xxxxx & Co. (“GS”) continues to hold the Warrant and an Observer (assuming such Observer were a member Warrant has not expired and is exercisable for at least 30% of the Board) would not meet Initial Warrant Shares (as such term is defined in the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”Warrant), or GS shall be entitled to designate one (1) non-voting observer, which designee, subject to a customary confidentiality undertaking by such designee, shall have customary observer rights, including without limitation the right to receive all notices, minutes, consents and any other exchange on materials which the Company’s securities are then tradedCompany provides to its Board (including committees thereof) and, the right to attend, but not vote at, all meetings of the Board (including executive sessions and committee meetings), provided that the Board, acting in good faith, may, where the Board considers it reasonably necessary to do so in order to preserve legal professional (or attorney/client) privilege, to avoid a conflict of interests or to protect information that it reasonably considers to be a trade secret or similar confidential information, exclude such observer from any meeting or part thereof or to refrain from providing such observer with certain information or documentation.
Appears in 2 contracts
Samples: Investor Rights Agreement (Kaltura Inc), Investor Rights Agreement (Kaltura Inc)
Observer Rights. (a) For so long as each a Venture Investor owns at least 1,000,000 shares of the BCP Entities Common Stock, on an as if converted basis (adjusted for stock splits, combinations and the CPPIB Entities individually own four percent (4%) or more of the issued like), and outstanding Class A Shares and Class B Shares (any Series C Investor without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Boardshare ownership, such Sponsor Entity Venture Investor or Series C Investor shall have be entitled to designate, upon written notice to the right to designate Company, one (1) non-voting observer individual reasonably acceptable to the Board Company (eachsuch designee, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer "OBSERVER") who shall be entitled to be present at notice of, to attend, and to any documentation distributed to the directors before, during or after, all meetings (including any action to be taken by written consent) of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))committees thereof; provided, however, that the Company reserves the right to withhold any information and to exclude such Observer shall have executed a nonfrom any meeting or portion thereof if access to such information or attendance at such meeting could
(i) in the judgment of the Company's outside counsel, adversely affect the attorney-disclosure client privilege between the Company and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to its counsel or cause the Board to breach its fiduciary duties, or
(ii) in the good faith determination of a majority of the Board, result in a conflict between the interests of the Company and the Sponsor Entity that designated those of such Observer, which for such Venture Investor, such Series C Investor or any of their affiliates. The Company will use its best efforts to ensure that any withholding of information or any restriction on attendance is strictly limited only to the avoidance of doubt, shall permit extent necessary set forth in the preceding sentence. Such Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect be permitted to actions taken or elected not to be taken by vote at any meeting of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business. Each Venture Investor, Series C Investor and Observer shall maintain the confidentiality of all financial, confidential and proprietary information of the Company obtained by them as a result of the rights granted pursuant to this Section 3.7. By designating an Observer, a Venture Investor or Series C Investor agrees to cause such Observer upon the Company's request to execute an agreement providing for nondisclosure of the Company's proprietary information consistent with such agreements signed by the Company's employees. The parties hereto hereby acknowledge and agree that, except as set forth in this Section 3.7, an Observer shall not owe any fiduciary or other duties to the shareholders of the Company or otherwise have any directorial or other duties or liabilities to the Company or its shareholders as a result of the Observer's exercise of his rights hereunder. A Venture Investor or Series C Investor shall designate, and may replace, its Observer with or without cause in its sole discretion by providing written notice to the Company at least five (5) business days prior to any such action taking effect. In addition to the limitations set forth in Section 3.8, any rights granted to an Observer under this Section 3.7 shall immediately terminate if the Venture Investor who appointed such Observer (x) in the case of a Venture Investor who is entitled to appoint an observer solely because of his stock ownership, no longer owns at least 1,000,000 shares of Common Stock, on an as if converted basis (adjusted for stock splits, combinations and the like) or (y) in the case of a Venture Investor who is deemed to be a Venture Investor solely because of his status as a VCOC, no longer is a VCOC. Exercise of the observer rights granted in this Section 3.7 by a transferee or assignee of shares of the Company's capital stock shall be subject to all rules governing the Board and nothing of Directors prior resolution that the conditions set forth in Section 9.11 shall all have been satisfied. Notwithstanding anything contained herein to the contrary, the Company's failure to comply with any provision of this Section 3.7 shall prevent not affect the Board from acting validity of any action taken (whether at a meeting or by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided consent) by the Company under Section 5.04(b)Board, such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoingor any committee thereof, the Company may exclude an Observer from access to or by any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice all of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded's stockholders.
Appears in 2 contracts
Samples: Investors' Rights Agreement (Cosine Communications Inc), Investors' Rights Agreement (Cosine Communications Inc)
Observer Rights. (a) For Each of 5AM Ventures V, L.P. (“5AM”), New Enterprise Associates 16, L.P. (“NEA”), Sofinnova Venture Partners X, L.P. (“Sofinnova”), Partners Innovation Fund, LLC and Partners Innovation Fund II, L.P. (“Partners”), Novartis Bioventures Ltd. (“Novartis”) and RA Capital Healthcare Fund, L.P. (“RA Capital”) shall be entitled to designate one representative each to attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity, in each case for so long as each such Investor or group of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”)affiliated Investors qualify as Major Investors hereunder. The appointment representatives appointed as board observers shall initially be Jamil Beg for 5AM, Xxxxx Xxxxxx for NEA, Xxx Xxxxxxx for Partners, Xxxxx Xxxxxx for Sofinnova, Xxxxxxxx Xxxxxx for Novartis, and removal Xxxxxxx Xxxxxxx for RA Capital.
(b) As long as Pivotal owns not less than 3,160,889 shares of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer Series B Preferred Stock, Pivotal shall be entitled to be present at invite one representative to attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity, who shall initially be Xxx Xxxxxxx.
(c) The Company shall give such representatives designated in accordance with clauses (a) and any committee thereof (b) above copies of all notices, minutes, consents, and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representatives shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer any such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that or if any such exclusion shall apply only to such portion of representative (or the material Major Investor designating him or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereof; or
(iiher) such portion of is 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedCompetitor.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Akouos, Inc.), Investors’ Rights Agreement (Akouos, Inc.)
Observer Rights. (a) For so long as each In lieu of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard appointing any EDH Holder Company Designee to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one EDH Holder may appoint a representative of the EDH Holder chosen by the EDH Holder in its sole discretion (1) non-voting observer to the “Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee all committees thereof (whether in person, telephonic or other) in a non-voting, observer capacity, and in this respect the Company shall be notified provide to the Board Observer complete copies of any such meeting by reasonable prior noticeall notices, including such meeting’s time minutes, consents and place, in other materials that are sent to the same manner as the directors members of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings or any committee thereof, at the same time as the Directors (except such notices, minutes, consents and other materials are provided to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))Company’s directors; provided, however, that the such Board Observer shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity provided further that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an such Board 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest.
(b) In lieu of appointing any EDH Holder Subsidiary Designee to the governing body of any Subsidiary of the Company, the EDH Holder may appoint a representative of the EDH Holder chosen by the EDH Holder in its sole discretion (in each case, a “Subsidiary Observer”) to attend all meetings of the governing body of any Subsidiary of the Company and all committees thereof (whether in person, telephonic or other) in a non-voting, observer capacity, and in this respect such Subsidiary of the Company shall provide to the Subsidiary Observer complete copies of all notices, minutes, consents and other materials that are sent to the members of the governing body of such Subsidiary of the Company or any committee thereof, at the same time such notices, minutes, consents and other materials are provided to such to the members of such Subsidiary’s governing body; provided, however, that such Subsidiary Observer shall agree to hold in confidence and trust all information so provided; and provided further that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only Subsidiary Observer from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between such Subsidiary and its counsel or result in disclosure of the material trade secrets or such portion a conflict 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinterest.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gsi Commerce Inc), Stock Purchase Agreement (Gsi Commerce Inc)
Observer Rights. (a) For so long as each OFS remains a Major Investor, the Company shall invite a representative of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard OFS to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
if access to such information or attendance at such meeting could (i) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a reasonable and customary form mutually acceptable to the Board concludes in good faith, upon advice of the Company’s outside legal counselCompany and OFS), (Aii) that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and its counselor or counsel, (Biii) that an Observer has result in a potential conflict of interest, or (iv) if such Investor or its representative is a competitor of the Company (as reasonably determined by the Board of Directors).
(b) For so long as Xxxx Managed Capital remains a Major Investor, the Company shall invite a representative of Xxxx Managed Capital to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could (i) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a reasonable and customary form mutually acceptable to the material or such portion of the meeting which would be required to preserve such privilege Company and not to any other portion thereof; or
Xxxx Managed Capital), (ii) such portion of a meeting is an executive session limited solely to independent director members of adversely affect the Board, independent auditors and/or legal attorney-client privilege between the Company and its counsel, as the Board may designate, and an Observer or (assuming such Observer were iii) result in a member conflict of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinterest.
Appears in 2 contracts
Samples: Investors’ Rights Agreement, Investors’ Rights Agreement (Acacia Communications, Inc.)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity The PG Stockholders shall have the right to designate and remove, and the Company shall take all Necessary Action to appoint or remove, as applicable, one (1) or more non-voting observer to the Board observers (each, an “Observer”). The appointment and removal ) to the Board of Directors (or any committees thereof) or any board of directors or equivalent governing body of any Observer shall be by written notice to Subsidiary of the BoardCompany (or any committees thereof). Each Observer shall be a natural person. Each Observer shall be entitled to be present shall, at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as provided to the directors of the Board of Directors (or members of any applicable committee thereof) or directors or members of the “Directors”board of directors or equivalent governing body of any Subsidiary of the Company (or members of any applicable committee thereof), as applicable, be entitled to (i) and shall be given notice of all meetings (whether in person, telephonic or otherwise) of the Board of Directors (or any applicable committee) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, (ii) receive copies of all written notices, agendas, consents, minutes and other materials distributed to the Directors for purposes Board of such meetings at the same time as the Directors (except or any committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, whether provided to such directors or members in advance, during or after any meeting, regardless of whether such Observer shall be in attendance at such meeting and (iii) participate in (but not vote on) all discussions conducted at meetings of the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, except, in the case of clauses (ii) and (iii), to the extent an Observer has been excluded therefrom from such meeting pursuant to Section 3.01(b)3.2(b); provided, however, provided that the such Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04PG Stockholders; provided, further, that such Observer shall (xA) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, to conduct its business and (yB) shall be subject to all rules governing the Board and nothing herein shall prevent of Directors (or any applicable committee thereof) or the Board from acting by written instrument to board of directors or equivalent governing body of any Subsidiary of the extent permitted by Company (or any applicable law; provided, further, that if at any time (upon written notice to the Companycommittee thereof), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01as applicable.
(b) Notwithstanding the foregoing, the Company or any Subsidiary of the Company, as applicable, may exclude an Observer from access to any material or meeting or portion thereof if:
: (i) the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, concludes in good faith, upon advice of the Company’s outside legal counsel, that (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company or such Subsidiary, as applicable, and its counselor or (B) that an such Observer has a potential conflict of interest; 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
or (ii) such portion of a meeting is an executive session limited solely to independent director members of the BoardIndependent Directors (or an applicable committee thereof), independent auditors and/or legal counsel, as the Board of Directors (or such applicable committee thereof) may designate, and an Observer (assuming such Observer were a member of the BoardBoard of Directors) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedExchange.
Appears in 2 contracts
Samples: Stockholders Agreement (KinderCare Learning Companies, Inc.), Stockholders Agreement (KinderCare Learning Companies, Inc.)
Observer Rights. From and after the Closing, as long as (a) For so long as each the Purchaser owns all the Series A Preferred Stock that it has purchased hereunder, (b) the Purchaser owns all the Series A Preferred Stock that it has purchased hereunder except for any such Series A Preferred Stock that have been converted into, at the initiation of the BCP Entities and Company, shares of Common Stock, but only if the CPPIB Entities individually own four percent Purchaser owns all the shares of Common Stock into which such Series A Preferred Stock were converted into or (4%c) the Observer Threshold is equal to or more greater than $25,000,000, the Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Purchaser to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors substantially at the same time and place, substantially in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer shall have executed such representative shall, prior to receiving any such information, agree to hold in confidence all information so provided pursuant to a non-disclosure and customary confidentiality agreement provided by the Company; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets, a potential conflict of interest; providedinterest or a violation of Law, howeveror if the Purchaser, that any such exclusion shall apply only to such portion of its Affiliates or its representative is a competitor of the material Company or such portion its Subsidiaries. Such representative shall (x) not have been involved in any of the meeting which would be required to preserve events enumerated under Item 401(f) of Regulation S-K under the Securities Act, or any successor provision thereto, (y) satisfy all such privilege other criteria and not to any other portion thereof; or
(ii) such portion of a meeting is qualifications for service as an executive session limited solely to independent director members observer of the Board, independent auditors and/or legal counsel, as determined by the Board may designatefrom time to time reasonably and in good faith and (z) be either (I) a partner of Ampersand Capital Partners and reasonably acceptable to the Company, which approval shall not be unreasonably withheld or (II) otherwise acceptable to the Company in its sole discretion. If, from and an Observer after the Closing, the Purchaser, at any point in time, satisfies none of clauses (assuming such Observer were a member a), (b) or (c) of the Boardfirst sentence of this Section 4.4, then the Purchaser shall permanently lose its rights under this Section 4.4. The “Observer Threshold” means the sum of (1) would not meet the then-applicable standards for independence adopted product of (i) the number of shares of Series A Preferred Stock owned by the New York Purchaser and (ii) the Purchase Price and (2) the product of (i) the number of shares of Common Stock Exchange owned by the Purchaser resulting from a conversion of Series A Preferred Stock owned by the Purchaser and (ii) the “NYSE”)fair market value of each share of Common stock. Notwithstanding anything to the contrary, the rights in this Section 4.4 shall inure solely to the benefit of the Purchaser and shall not be assignable in whole or such other exchange on which in part to any person, regardless of any assignment hereunder or any Transfer of the Company’s securities are then tradedSeries A Preferred Stock. Any assignment in violation of this Section 4.4 shall be void ab initio and the Company shall not be required to give any effect thereto.
Appears in 2 contracts
Samples: Merger Agreement (Ani Pharmaceuticals Inc), Equity Commitment and Investment Agreement (Ani Pharmaceuticals Inc)
Observer Rights. (ai) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) The Company shall invite Xxxxxx Xxxxxxxxx, M.D., or more of the issued and outstanding Class A Shares and Class B Shares (without regard an individual designated by Xx. Xxxxxxxxx, to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give Xx. Xxxxxxxxx or his representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such ObserverXx. Xxxxxxxxx or, which for the avoidance of doubtif applicable, his representative, shall permit the Observer agree to share hold in confidence and trust and to act in a fiduciary manner with respect to all information as so provided; and provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer Xx. Xxxxxxxxx or his representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary information or attendance to preserve such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if Xx. Xxxxxxxxx or his representative is a competitor of the Company.
(ii) The Company shall invite one individual designated by Hatteras (the “Hatteras Observer”), which individual shall initially be Xxxx Xxxxx, to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give the Hatteras Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that Hatteras and the Hatteras Observer 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 the Company reserves the right to withhold any such exclusion shall apply only information and to exclude the Hatteras Observer from any meeting or portion thereof if access to such portion information or attendance to such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if Hatteras or the Hatteras Observer is a competitor of the material or such portion Company.
(iii) The Company shall invite one individual designated by Lumira Capital II, L.P. and its Affiliates (“Lumira”), which individual shall initially be Xxxxxxxx Xxxxxxxx, to attend all meetings of the meeting which would be required to preserve such privilege and not to any other portion thereof; or
(ii) such portion of Board in 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange nonvoting observer capacity (the “NYSELumira Observer”) and, in this respect, shall give the Lumira Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that Lumira and the Lumira Observer 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 the Company reserves the right to withhold any information and to exclude the Lumira Observer from any meeting or portion thereof if access to such information or attendance to such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if Lumira or the Lumira Observer is a competitor of the Company.
(iv) The Company shall invite one individual designated by Cormorant and its Affiliates (the “Cormorant Observer”), which individual shall initially be Xxxxx Xxxx, to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give the Cormorant Observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that Cormorant and the Cormorant Observer 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 the Company reserves the right to withhold any information and to exclude the Cormorant Observer from any meeting or portion thereof if access to such other exchange on which information or attendance to such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if Cormorant or the Cormorant Observer is a competitor of the Company’s securities are then traded.
Appears in 2 contracts
Samples: Stockholders' Agreement, Stockholders Agreement (G1 Therapeutics, Inc.)
Observer Rights. (ai) For so After such time as Xxxxxxx Xxxxxx no longer serves on the Company’s Board of Directors, as long as each AMV Partners II, L.P. (“AMV”) owns any shares of the BCP Entities and Company’s capital stock, the CPPIB Entities individually own four percent Company shall invite a representative of AMV to attend all meetings of its Board of Directors in a nonvoting observer capacity, (4%ii) or more as long as IGC Fund VI, L.P. (“IGC”) owns any shares of the issued Company’s capital stock, the Company shall invite a representative of IGC to attend all meetings of its Board of Directors in a nonvoting observer capacity, (iii) as long as KCK Ltd. (“KCK”) owns any shares of the Company’s capital stock, the Company shall invite a representative of KCK to attend all meetings of its Board of Directors in a nonvoting observer capacity and outstanding Class A Shares (iv) as long as Xxxxxxxxx Xxxxxx Principal Strategies PRIMA Fund LP or Xxxxxxxxx Xxxxxx Principal Strategies PRIMA Co-Invest Fund III LP (the “NB Funds”) hold shares of New Series B/B-1 Preferred or New Series C/C-1 Preferred and Class B Shares (without regard to until such time as the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity NB Funds shall have the right to designate one (1) non-voting observer to appoint a member of the Board (eachof Directors, an “Observer”). The appointment and removal the Company shall invite a representative of any Observer shall be by written notice the NB Funds to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior noticeDirectors in a nonvoting observer capacity, including such meeting’s time and placeand, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representatives copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representatives shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representatives from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that any or if such exclusion shall apply only to such portion Holder or its representative is a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Intuity Medical, Inc.), Investors’ Rights Agreement (Intuity Medical, Inc.)
Observer Rights. If the Investor elects to have Observer Rights in accordance with Section 2.1, then, so long as such election is in effect:
(a) For Subject to the provisions of this Section 2.3, the Investor shall initially be entitled (but shall not be obligated) to designate up to two persons (each an “Investor Observer”) to attend all meetings of the Board, solely in the capacity of a non-voting observer, by providing the Company with a written notice (the “Observer Notice”) identifying the Investor Observer.
(b) The Investor may elect to remove a previously appointed Investor Observer at any time, with or without cause, by providing written notice to the Company.
(c) Subject to Sections 2.3(d) and (e) and Section 2.5, the Company shall provide to each Investor Observer, concurrently with the Directors, and in the same manner, notice of each meeting of the Board and copies of any materials provided to the Directors, including all materials provided to Directors in connection with any action to be taken by the Board without a meeting and copies of any written consents.
(d) Each Investor Observer shall only be allowed to observe meetings of the full Board (and not committee meetings or any meetings of the Board in executive session), provided, however that one Investor Observer shall be allowed to observe meetings of the Audit Committee, and no Investor Observer shall in any circumstances have any right to participate in any vote, consent or other action of the Board or any committee thereof, nor shall any Investor Observer’s presence, vote, consent or other action be required for any action of the Board or any committee thereof.
(e) The Investor acknowledges and agrees that the Company reserves the right (i) not to provide notice of any meeting of the Board, or any committee thereof, or any materials provided in connection with any meeting or otherwise to any Investor Observer, (ii) to exclude the Investor Observers from any meeting or portion thereof and (iii) to redact portions of any Board materials delivered to the Investor Observers, in each case where and to the extent that the Board determines in good faith (without the participation of any Investor Director) that the delivery of any materials or attendance at any meeting or portion thereof by any Investor Observer would or may be reasonably necessary: (A) to preserve attorney-client, work product or similar privilege, (B) to comply with the terms and conditions of confidentiality agreements with third parties, (C) to comply with applicable law, (D) if the Board determines that there exists, with respect to the subject of a meeting or of Board materials, an actual or potential conflict of interest between the Investor or any Investor Observer and the Company or (E) to the extent permitted pursuant to Section 2.5; provided that, in the event any of the actions described in subclauses (i), (ii) or (iii) of this Section 2.3(e) are taken, the Board, to the extent practicable, shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which the restrictions of subclauses (A)-(E) of this Section 2.3(e) apply, including the execution of a joint defense agreement to allow the Investor Observer to obtain information protected by the attorney client privilege or work product doctrine, or as otherwise restricted for the reasons described in subclauses (A)-(E) of this Section 2.3(e).
(f) Any Investor Observer must, prior to being permitted to attend any Board meeting or receive any materials pursuant to this Section 2.3, enter into an agreement (a “Investor Observer Agreement”) with and for the benefit of the Company in the form attached hereto as Exhibit A affirming the terms of this Agreement and agreeing to abide with the limitations on observation rights, confidentiality restrictions and other terms set forth herein and therein.
(g) No individual shall serve as an Investor Observer if (i) such individual is a plaintiff in any litigation involving the Company or its affiliates or (ii) in the event that any relevant antitrust governmental authority requires such individual to terminate his position as an Investor Observer, and either such event, such individual shall immediately resign as an Investor Observer and, failing such a resignation, the Investor shall remove and replace such individual. In the event that the Investor fails to remove and replace such individual, the Sole Member may remove such individual by giving notice to the Investor to the effect that such individual has been removed pursuant to this clause (g).
(h) The Investor’s right to designate two Investor Observers shall continue for so long as each of the BCP Entities and Investor maintains the CPPIB Entities individually own four percent (4%) or more of Two Director Ownership Threshold. Upon the issued and outstanding Class A Shares and Class B Shares (without regard Investor’s failure to maintain the voting power of such Class B Shares) and there is no Two Director who is a designee of such Sponsor Entity on Ownership Threshold, but so long as the BoardInvestor maintains the One Director Ownership Threshold, such Sponsor Entity then the Investor shall continue to have the right to designate one (1) non-voting observer to the Board (each, an “Investor Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Investor Rights Agreement (Regency Energy Partners LP), Investor Rights Agreement (Regency LP Acquirer, L.P.)
Observer Rights. (a) For so As long as each Perceptive Credit Holdings II, LP (“Perceptive CH II”), owns not less than 500,000 shares of the BCP Entities and Series B Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Perceptive CH II to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings its directors at the same time and in the same form as the Directors (except such materials are provided to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))such directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a competitor of the Company.
(b) As long as Perceptive Life Sciences Master Fund LTD. (“Perceptive”) owns not less than 500,000 shares of the Series C Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Perceptive to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same form as such materials are provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Investor Rights Agreement (ArcherDX, Inc.), Investor Rights Agreement (ArcherDX, Inc.)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity The Required Purchasers shall have the right to designate one have an observer attend (1or participate by telephone in) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board boards of directors of Parent and any each of its Subsidiaries and each committee thereof and (such observer shall not be notified entitled hereby to become a member of any such meeting by reasonable prior notice, including board of directors). The Issuer shall pay the expenses of such meeting’s time and place, in observer to attend such meetings. Meetings of the same manner as the boards of directors of the Board (the “Directors”) and Note Parties shall receive copies of all written materials distributed to the Directors for purposes of such meetings be held at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))least annually; provided, however, that such observer shall (i) participate in a management update call for each of Parent and its Subsidiaries in any fiscal quarter during which no board meeting is held for such entity and (ii) be provided with such information and access to management as would otherwise be provided at a meeting of the Observer boards of directors of the Note Parties at least quarterly. The Note Purchasers shall have executed a non-disclosure receive all reports, meeting materials, notices and confidentiality agreement other materials as and such other acknowledgments and agreements reasonably satisfactory when provided to the Board and the Sponsor Entity that designated board members or any committee thereof in connection with a vote or such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt meetings of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) board of directors or committees thereof. Notwithstanding the foregoing, the Company upon advance notice being given, such observer may exclude an Observer be excluded from having access to any material materials produced by counsel to the Note Parties in connection with pending or meeting threatened litigation against, or portion thereof if:
(i) by, any Note Party and may be excluded from the Board concludes in good faith, upon advice portions of any meetings at which such pending or threatened litigation is considered so long as the Company’s outside legal counsel, (A) Note Party reasonably believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between of such Note Party. Notwithstanding the Company and its counselor foregoing, upon advance notice, such observer may be excluded from having access to the portions of any board or committee meetings during which material discussions in connection with the Notes shall occur, including, without limitation, (Bi) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only proposed material modifications to such portion the terms 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
Notes are considered, (ii) such portion any failure to comply with the terms of a meeting is an executive session limited solely to independent director members of this Agreement or the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)other Note Documents, or such other exchange on which (iii) any litigation involving the Company’s securities Note Purchasers are then tradedconsidered.
Appears in 2 contracts
Samples: Note Purchase Agreement (Encompass Group Affiliates, Inc), Note Purchase Agreement (Advanced Communications Technologies Inc)
Observer Rights. (a) For so long as each Star Rising Ltd. holds any Preferred Shares, Xx. Xxx Xxxxxxx shall be entitled to attend all meetings of the BCP Entities Board in a non-voting observer capacity (the “Star Rising Observer”).
(b) In the event NewQuest no longer has the power to solely appoint, remove from office or replace the Preferred E Director, for so as long as NewQuest continues to hold at least thirty percent (30%) of the Series E Preferred Shares (as adjusted for stock splits, stock dividends, consolidation and the CPPIB Entities individually own four percent (4%like) or more as held by NewQuest as of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardSeries F-1 First Closing Date, such Sponsor Entity NewQuest shall have the right to designate one (1) non-voting appoint an observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board a non-voting observer capacity (the “DirectorsNewQuest Observer”, and together with Star Rising Observer, the “Observers”).
(c) All of the notification, background information, resolution, plans and shall receive copies of all written materials distributed schedules relating to the Directors for purposes of such Board meetings at shall be delivered to the Observers under the same time notification requirements as the Directors (except applicable to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))members of the Board; provided, however, that the Observer Observers shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observerall information so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding withhold any information and to exclude the foregoing, the Company may exclude an Observer Observers from access to any material or meeting or portion thereof if:
if the Board, with the affirmative vote of two-thirds (i2/3) the Board concludes in good faith, upon advice of the Company’s outside legal counselmembers of the Board, (A) determines that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor or (B) counsel or, in the good faith determination of the Board as set forth in a written summary of its determination that an Observer has such exclusion is necessary due to a potential conflict of interest; providedinterest and the bases of such determination, 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 certified by the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Shareholders Agreement, Shareholders Agreement (iKang Healthcare Group, Inc.)
Observer Rights. (a) For so long as each the Elephant Parties together with their Affiliates and Permitted Transferees own not less than 91,925 shares of Preferred Stock (or an equivalent number of shares of Common Stock issued upon conversion thereof, such number to be adjusted for any stock splits, dividends, reorganizations or the like), the Company shall invite a representative of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard Elephant Parties to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or result in disclosure of trade secrets of the Company.
(Bb) For so long as the Goldman Parties together with their Affiliates and Permitted Transferees own not less than 41,148 shares of Preferred Stock (or an equivalent number of shares of Common Stock issued upon conversion thereof, such number to be adjusted for any stock splits, dividends, reorganizations or the like), the Company shall invite a representative of Xxxxxxx Sachs to attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that an Observer has a potential conflict of interestit provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets of the material Company.
(c) For so long as the KKR Parties together with their Affiliates and Permitted Transferees own not less than 41,148 shares of Preferred Stock (or an equivalent number of shares of Common Stock issued upon conversion thereof, such portion number to be adjusted for any stock splits, dividends, reorganizations or the like), the Company shall invite two representatives of the KKR Parties to attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representatives copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representatives shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representatives from any meeting which would be required or portion thereof if access to preserve such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and not to any other portion thereof; orits counsel or result in disclosure of trade secrets of the Company.
(d) For so long as Xxxx Xxxxxxxx (i) is an executive officer of the Company or (ii) such portion owns or holds stock options or outstanding Shares representing not less than one (1%) percent 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedoutstanding Shares, on an as-converted basis, the Company shall invite Xxxx Xxxxxxxx to attend all meetings of the Company’s Board of Directors in a nonvoting observer capacity and, in this respect, shall give Xxxx Xxxxxxxx copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that Xxxx Xxxxxxxx shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude Xxxx Xxxxxxxx from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets of the Company. The right pursuant to this clause (c) is exclusive to Xxxx Xxxxxxxx and non- transferable and non-assignable.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (KnowBe4, Inc.), Investors’ Rights Agreement (KnowBe4, Inc.)
Observer Rights. (a) For so As long as each Xxxxxxx-Xxxxx Squibb Company, Tax ID No: 00-0000000 (“BMS”) owns shares of the BCP Entities and Series C-2 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard BMS to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a Competitor of the Company to the extent such information or portion of such meeting involves competitive sensitive information.
(b) As long as Merck Ventures BV, Reg. No. 601910929 (“Merck”) owns shares of the Series C-2 Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Merck to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company to the extent such information or 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; orinvolves competitive sensitive information.
(iic) such portion So long as Soleus owns shares 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, Series D Preferred Stock (or Common Stock issued upon conversion thereof) and an Observer (assuming such Observer were Affiliate of Soleus is not a member of the Board, the Company shall invite a representative of Soleus to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company to the extent such information or portion of such meeting involves competitive sensitive information.
(d) would So long as Eir owns shares of Series D Preferred Stock (or Common Stock issued upon conversion thereof) and an Affiliate of Eir is not meet a member of the thenBoard, the Company shall invite a representative of Eir to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-applicable standards for independence adopted client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company to the extent such information or portion of such meeting involves competitive sensitive information.
(e) So long as Hadean owns shares of Series D Preferred Stock (or Common Stock issued upon conversion thereof) and an Affiliate of Hadean is not a member of the Board, the Company shall invite a representative of Hadean to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company.
(f) Any Investor that may from time to time designate a member of the Board pursuant to the Voting Agreement, dated of even date herewith, by and among the New York Stock Exchange Company and the other parties thereto (the “NYSEVoting Agreement”)) may, or at such Investor’s sole discretion, elect to keep such seat vacant, and may, in place of such Board designee, invite a representative of such Investor to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, the Company shall give such representative copies of all notices, minutes, consents, and other exchange materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided that if such Board designee is nominated by such Investor, the observer rights set forth in this Subsection 3.3 shall be suspended for so long as the Board designee shall remain on which the Company’s securities are then tradedBoard.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Galecto Inc.), Investors’ Rights Agreement (Galecto Inc.)
Observer Rights. (a) For so As long as each Xxxxx X. Xxxxxxx or Xxxxxxx Investments, LLC shall own any shares of capital stock of the BCP Entities Company, (b) as long as Columbia Ventures Corporation (“CVC”) shall own at least 287,769 shares of Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), (c) as long as KBI shall own at least 178,754 shares of Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), and (d) as long as Xxxxxxx Innovation Center LLC and its Affiliates (collectively, “DIC”) shall own at least 153,218 shares of Preferred Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the CPPIB Entities individually own four percent (4%) or more date hereof), respectively, the Company shall invite a representative of Xx. Xxxxxxx, a representative of CVC, a representative of KBI, and a representative of DIC, as the issued and outstanding Class A Shares and Class B Shares (without regard case may be, to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in this respect, shall give Xx. Xxxxxxx, and the same manner as the directors of the Board (the “Directors”) CVC, KBI, and shall receive DIC representatives copies of all written notices, minutes, consents and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer each such observer shall have executed a non-disclosure agree to hold in confidence all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that any or if such exclusion shall apply only to such portion Investor or its representative is a Competitor. Each of the material Investors agrees that except as expressly set forth above, no other Investor or such portion stockholder of the meeting which would be required to preserve such privilege and not Company is entitled to any Board observer rights, and any and all observer rights between the Company or any of its predecessors and any other portion thereof; or
(ii) such portion of a meeting is an executive session limited solely to independent director members Investor or stockholder of the BoardCompany, independent auditors and/or legal counselincluding without limitation those set forth in the Fifth Amended and Restated Limited Liability Company Agreement of AbSci, LLC, dated December 5, 2019, as the Board may designateamended, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), restated or such other exchange on which the Company’s securities are then tradedotherwise modified from time to time.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (AbSci Corp), Investors’ Rights Agreement (AbSci Corp)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent The Company shall allow (4%i) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board representative designated by New Enterprise Associates 15, L.P., or its Affiliates (each, an “ObserverNEA”). The appointment , who shall initially be Xxxx Xxxxxx, (ii) one (1) representative designated by Osage University Partners I, L.P., or its Affiliates (“Osage”), who shall initially be Xxxx Xxxxxxxxxx, (iii) one (1) representative designated by Xxxxxxx Healthcare VI, L.P., or its Affiliates (“Xxxxxxx”), who shall initially be Xxx Xxxxx, (iv) one (1) representative designated by Altitude Life Science Ventures, or its Affiliates (“Altitude”), who shall initially be Xxxx Xxxx, (v) one (1) representative designated by Roche Finance Ltd., or its Affiliates (“Roche”), who shall initially be Xxxxxx Nuetcherlein, (vi) one (1) representative designated by Xxxxx Street Partners, LLC, or its Affiliates (“Xxxxx Street”), who shall initially be Xxxxxx X. Xxxxx III and removal of any Observer (vii) one (1) representative from Longwood Fund III GP, LLC, or its Affiliates (“Longwood”), who shall initially be by written notice Xxxxx Xxxxxxxxxx, to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and in a nonvoting capacity, so long such designating entity is a Major Investor. The Company shall be notified of any give such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive representative copies of all written materials distributed notices, minutes, consents and other materials, financial or otherwise, which the Company provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its Board; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes Company in good faithfaith believes, upon with advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect highly confidential information or for other similar reasons. The decision of the Board with respect to the privileged or confidential nature of such information shall be final and binding.
(b) The Company shall allow one (1) representative designated by AstraZeneca AB who shall initially be Kumar Srinivasan, to attend all meetings of the Board in a nonvoting capacity. The Company shall give such representative copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company and provides to its counselor or (B) that an Observer has a potential conflict of interestBoard; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company in good faith believes, with advice of counsel, that such exclusion shall apply only is reasonably necessary to such portion preserve the attorney-client privilege, to protect highly confidential information or for other similar reasons (including actual or potential conflicts of interest). The decision of the material Board with respect to the privileged or confidential nature of such portion information shall be final and binding. Notwithstanding any other provision contained herein, this Section 3.7(b) shall expire and terminate as to AstraZeneca AB upon the earliest of (i) AstraZeneca AB’s disposition of fifty percent (50%) or more of the meeting which would be required Series B Preferred Stock issued to preserve such privilege AstraZeneca AB pursuant to that certain License Agreement between the Company and not to any other portion thereof; or
AstraZeneca AB dated August 25, 2015, (ii) such portion the effective date 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinitial public offering of its Common Stock or any other transaction that results in the Company or any successor being a publicly traded company, (iii) upon an Acquisition (as defined in the Charter) or (iv) at such time AstraZeneca AB holds less than one percent (1%) of the Company’s outstanding Common Stock (treating all shares of Convertible Stock on an as converted basis).
(c) For so long as any shares of New Preferred Stock remain outstanding, the Company shall allow two (2) representatives designated by the holders of a majority of shares of New Preferred Stock, who shall initially be Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxxxx, to attend all meetings of the Board in a nonvoting capacity. The Company shall give such representative copies of all notices, minutes, consents and other materials, financial or otherwise, which the Company provides to its Board; provided, however, that the Company reserves the right to exclude such representative from access to any material or meeting or portion thereof if the Company in good faith believes, with advice of counsel, that such exclusion is reasonably necessary to preserve the attorney-client privilege, to protect highly confidential information or for other similar reasons (including actual or potential conflicts of interest). The decision of the Board with respect to the privileged or confidential nature of such information shall be final and binding. Notwithstanding any other provision contained herein, this Section 3.7(c) shall expire and terminate as to the holders of New Preferred Stock upon the earliest of (i) at such time as the holders of New Preferred Stock collectively hold less than five percent (5%) of the Company’s outstanding Common Stock (treating all shares of Convertible Stock on an as converted basis), (ii) the effective date of the Company’s initial public offering of its Common Stock or any other transaction that results in the Company or any successor being a publicly traded company or (iii) upon an Acquisition (as defined in the Charter).
Appears in 2 contracts
Samples: Investor Rights Agreement, Investor Rights Agreement (OvaScience, Inc.)
Observer Rights. (a) For so As long as each any shares of the BCP Entities Series A Preferred Stock, the Series A-1 Preferred Stock, or the Series B Preferred are outstanding, the holders of a majority of the Series A Preferred, the Series A-1 Preferred, and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class Series B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Preferred shall have the right right, by a vote of a majority of the holders of such series of Preferred Stock, voting together as a single class on an as converted to Common Stock basis, to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer representative thereof who shall be invited by written notice the Company to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and in a nonvoting observer capacity and, in this respect, shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive given copies of all written notices, minutes, consents, and other materials distributed that the Company provides to the Directors for purposes of Board, such meetings materials to be made available to such representative at or about the same time as the Directors (except such materials are provided to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))Board; provided, however, that the Observer such representative shall have executed a non-disclosure and confidentiality agreement and agree to hold in confidence all information so provided (it being understood that such other acknowledgments and agreements reasonably satisfactory representative shall be entitled to provide such information to the Board holders of the outstanding shares of the Series A Preferred Stock, the Series A-1 Preferred Stock, and the Sponsor Entity that designated such ObserverSeries B Preferred, which for subject to the avoidance of doubt, shall permit confidentiality and the Observer to share information as provided other restrictions set forth in Section 5.04this Agreement); provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) has determined that such exclusion representative is reasonably necessary a Competitor and/or if the representative’s access to preserve such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in a potential conflict of interestinterest or disclosure of trade secrets; and provided, howeverfurther, that the Company may instruct such representative to withhold (and such representative shall withhold) such information from any such exclusion shall apply only to such portion holder of shares of the material or such portion of Series A Preferred Stock, 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 Series A-1 Preferred Stock, and/or the Board, independent auditors and/or legal counsel, as Series B Preferred if the Board may designate, and an Observer (assuming has determined that such Observer were holder is a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedCompetitor.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Caribou Biosciences, Inc.), Investors’ Rights Agreement (Caribou Biosciences, Inc.)
Observer Rights. (a) For so long as During the Term, the Parent shall:
(i) provide the Observer with notice, if any, of each meeting of the BCP Entities Board of Directors (telephonic or otherwise), in the same manner and at the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer same time as provided to the Board of Directors;
(each, an “Observer”). The appointment and removal of any Observer shall be by written notice ii) provide to the Board. Each Observer shall be copies of all materials provided to the Board of Directors, in the same manner and at the same time as provided to the Board of Directors;
(iii) provide to the Observer drafts of all resolutions proposed for signature by the Board of Directors (in lieu of a natural person. Each meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board of Directors; and
(iv) permit the Observer shall be entitled to be present at all meetings attend each meeting of the Board and of Directors (telephonic or otherwise), including, without limitation, any committee thereof meeting of the Board of Directors or executive sessions, as an observer, except with respect to materials or resolutions, or attendance at such portions of any such meeting, in which (A) the subject matter relates to a transaction, proceeding or matter in which the Investors or their Affiliates or investee entities (other than the Parent) are or may be interested parties, and shall be notified where the participation in such portion of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed Observer or access to Confidential Information relating to the Directors for purposes Parent would, upon the advice of such meetings at counsel, give rise to a conflict of interest between the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board Investors and the Sponsor Entity that designated such ObserverParent, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken determined by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct Directors in its business and sole discretion, (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(iB) the Board concludes in good faithof Directors determines, upon the advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorneysolicitor-client privilege between the Company and its counselor privilege, or (BC) the Board of Directors determines, upon the advice of counsel, that an such exclusion is reasonably necessary for the Parent or its subsidiaries to comply with any of their respective confidentiality obligations. Notwithstanding the foregoing, each of the following committees of the Board of Directors shall be entitled to exclude the Observer has a potential conflict from attending any meeting, or portion thereof, of interestsuch committee in its discretion: the Audit Committee, the Corporate Governance Committee and the Compensation Committee.
(b) The Parent shall not be required to (i) pay any compensation to the Observer or (ii) provide any indemnification, or maintain coverage under any policies of directors' and officers' insurance, in favour of the Observer; provided, however, that the Parent shall reimburse any such exclusion shall apply only to such portion reasonable costs or expenses incurred by the Observer in connection with his or her attendance at meetings of the material or such portion Board of Directors, committee meetings of the meeting which would be required to preserve such privilege Board of Directors and not to any other portion thereof; orexecutive sessions.
(iic) such portion of a The Observer shall not have the right to vote at any meeting is an executive session limited solely to independent director members of the BoardBoard of Directors or be counted towards determining whether there is quorum for such meeting, independent auditors and/or legal counsel, as but shall be entitled to participate in the discussions of the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedDirectors.
Appears in 2 contracts
Samples: Investor Rights Agreement (SunOpta Inc.), Observer Governance and Confidentiality Agreement (SunOpta Inc.)
Observer Rights. (a) For so As long as each NEA owns any shares of the BCP Entities and Series A Preferred or any Registrable Securities, the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard NEA to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
if (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion is information or attendance at such meeting would reasonably necessary be expected to preserve adversely affect the attorney-client privilege between the Company and its counselor counsel or necessary to protect highly confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company), or (Bii) the Board of Directors determines in good faith that an Observer has such Investor or its representative is a potential conflict competitor of interestthe Company, provided that NEA shall not be considered, and neither the Company nor the Board of Directors shall determine that NEA is, a competitor of the Company if NEA does not control or substantially engage in a business that competes with a material product, process or service in existence or being developed by the Company (of which existence or development the Company shall notify NEA).
(b) As long as Lonza owns any shares of the Series A Preferred or any Registrable Securities, the Company shall invite a representative of Lonza to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, 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 all information so provided; provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from a portion of a meeting if (i) access to such portion of information or attendance at such meeting would reasonably be expected to adversely affect the material attorney-client privilege between the Company and its counsel or such portion of necessary to protect highly confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the meeting which would be required to preserve such privilege and not to any other portion thereof; or
Company), or (ii) the Board of Directors determines reasonably and in good faith that Lonza or its representative is a competitor of the Company, provided that Lonza shall not be considered, and neither the Company nor the Board of Directors shall determine that Lonza is, a competitor of the Company if Lonza does not control or substantially engage in a business that competes with a material product, process or service in existence or being developed by the Company (of which existence or development the Company shall notify Lonza), and further provided that the parties hereto acknowledge and agree that as of the date of this Agreement, Lonza is not a competitor of the Company and does not control and does not engage in such competitive business referred to in this clause (ii), or (iii) the Board of Directors in good faith reasonably determines that Lonza has an actual conflict of interest with the Company with respect to such information or the matter being discussed at such portion of a meeting meeting, it being agreed that such a determination by the Board of Directors may only occur with respect to the following subject matter (in each case to the extent the Board of Directors determines there is an executive session limited solely such conflict of interest): (a) discussions relating to independent director members the procurement or provision of manufacturing services to the Company; (b) the Company’s discussion or negotiation of licensing, collaboration or other research arrangements with third parties in areas or with partners that are of strategic interest to Lonza (except if such strategic interest is due to Lonza’s interest in the Company); or (c) matters related to the Exclusive License Agreement dated September 9, 2019 by and between MEEI, the Schepens Eye Research Institute, Inc., Lonza and the Company.
(c) As long as Partners owns any shares of the BoardSeries A Preferred or any Registrable Securities, independent auditors and/or legal counsel, as the Company shall invite a representative of Partners to attend all meetings of the Board may designateof Directors in a nonvoting observer capacity and, in this respect, 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 all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if (i) access to such information or attendance at such meeting would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel or necessary to protect highly confidential information (unless covered by an Observer (assuming such Observer were enforceable confidentiality agreement, in a member of form reasonably acceptable to the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”Company), or (ii) the Board of Directors determines in good faith that such other exchange on which Investor or its representative is a competitor of the Company’s securities are then traded, provided that Partners shall not be considered, and neither the Company nor the Board of Directors shall determine that Partners is, a competitor of the Company if Partners does not control or substantially engage in a business that competes with a material product, process or service in existence or being developed by the Company (of which existence or development the Company shall notify Partners).
(d) As long as Farallon owns any shares of Series B Preferred Stock or any Registrable Securities, the Company shall invite a representative of Farallon to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting would reasonably be expected to adversely affect the attorney-client privilege between the Company and its counsel or necessary to protect highly confidential information (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company).
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Affinia Therapeutics Inc.), Investors’ Rights Agreement (Affinia Therapeutics Inc.)
Observer Rights. (a) For so So long as each of the BCP Entities and Credit Agreement remains outstanding, the CPPIB Entities individually own four percent Majority Lenders (4%) or more of as defined in the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardCredit Agreement), such Sponsor Entity shall have the right to designate one (1) non-observer, without voting observer to the Board (eachrights, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall who will be entitled to be present at attend all meetings of the Board and of Managers (including any committee thereof and committees thereof). Any observer designated by the Majority Lenders shall be notified entitled to notice of any such meeting by reasonable prior notice, including such meeting’s time all meetings and place, proposed written actions in the same manner as the directors lieu of meetings of the Board of Managers (the “Directors”including committee meetings) and shall receive copies to information and written material provided to any members of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and of Manager in connection with the Sponsor Entity that designated such Observer, which same. Such observer shall be entitled to a reimbursement for reasonable out-of-pocket expenses from the avoidance Company incurred in connection with attendance at meetings of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board of Managers (or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Companycommittees thereof), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) . Notwithstanding the foregoing, the Company Board of Managers may exclude an Observer such observer from access to any material or meeting or portion thereof if:
(i) to the Board concludes in good faithextent that the observer’s presence at such meeting or portion thereof would, upon advice of counsel to the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve disrupt the attorney-client privilege between the Company and its counselor or counsel.
(Bb) So long as 3RP Holding Company, LLC owns at least 50% of the Units (on a Fully-Diluted Basis) that an Observer has a potential conflict of interest; providedit owns on the date hereof, howeverit shall have the right to designate one observer, that any such exclusion shall apply only without voting rights, who will be entitled to such portion attend all meetings of the material or such portion Board of Managers (including any committees thereof). Any observer designated by 3RP Holding Company, LLC shall be entitled to notice of all meetings and proposed written actions in lieu of meetings of the meeting which would be required Board of Managers (including committee meetings) and to preserve such privilege information and not written material provided 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 Board of Manager in connection with the same. Such observer shall be entitled to a reimbursement for reasonable out-of-pocket expenses from the Company incurred in connection with attendance at meetings of the Board of Managers (or committees thereof). Notwithstanding the foregoing, the Board of Managers may designateexclude such observer from any meeting or portion thereof to the extent that the observer’s presence at such meeting or portion thereof would, and an Observer (assuming such Observer were a member upon advice of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which counsel to the Company’s securities are then traded, disrupt the attorney-client privilege between the Company and its counsel.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Kadmon Holdings, LLC), Limited Liability Company Agreement (Kadmon Holdings, LLC)
Observer Rights. (a) For so As long as each Foresite Capital Fund I, L.P., together with its affiliates (collectively, “Foresite”), owns not less than twenty-five percent (25%) of the BCP Entities shares of the Series B-1 Preferred Stock purchased by Foresite under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Foresite, which representative of Foresite shall be Xxxxx Xxxxxxxxx, unless otherwise agreed to by a majority of the members of the Board of Directors of the Company (the “Foresite Observer”), and (b) as long as Xxxxxx Xxxxxxx (“Shacham”) and Xxxxxx Xxxxxxx (“Draetta”) remain associated with the Company, the Company shall invite Shacham and Draetta (Shacham, Draetta and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardForesite Observer, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, each an “Observer” and collectively the “Observers”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors (and, with respect to the Board and Foresite Observer, any committee thereof and shall be notified meetings of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors committees of the Board (the “of Directors”) and in a nonvoting observer capacity and, in this respect, shall receive give each Observer copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the each Observer shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an any 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that any or if such exclusion shall apply only to Observer or the stockholder such portion Observer represents is a competitor of the material or such portion of Company. Notwithstanding the meeting which would be required foregoing, Foresite shall not have the right 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 appoint an Observer (assuming such Observer were at any time during which Foresite has the right to nominate a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which director to the Company’s securities are then tradedBoard of Directors pursuant to Section 3(e) of the Voting Agreement.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Karyopharm Therapeutics Inc.), Investors’ Rights Agreement (Karyopharm Therapeutics Inc.)
Observer Rights. (a) For so As long as each BVF owns not less than fifty percent (50%) of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the Preferred Stock such Investor purchased under that certain Series A Preferred Stock Purchase Agreement dated as of November 2, 2021 (the “Series A Purchase Agreement”) (or an equivalent amount of Common Stock issued and outstanding Class upon conversion thereof) in the Initial Closing (as defined in the Series A Shares and Class B Shares (without regard Purchase Agreement), the Company shall invite a representative of BVF to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give each such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings its directors at the same time as the Directors (except provided to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))such directors; provided, however, that the Observer each such representative shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer any such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if the applicable Investor or its representative is a competitor of the Company.
(b) As long as RA Capital owns not less than fifty percent (50%) of the shares of the Preferred Stock such Investor is purchasing under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof) in the Initial Closing (as defined in the Purchase Agreement), the Company shall invite a representative of RA Capital to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give each such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that each such representative shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude any such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the applicable Investor or its representative is a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 2 contracts
Samples: Investors’ Rights Agreement (Septerna, Inc.), Investors’ Rights Agreement (Septerna, Inc.)
Observer Rights. The Company hereby agrees that at all times on and after the date hereof, so long as BCC continues to hold more than 10 million shares of Common Stock or Warrants to purchase more than 10 million shares of Common Stock or any combination of Common Stock and Warrants to purchase Common Stock that, in the aggregate, is more than 10 million shares of Common Stock (including on a Warrant exercised basis), the Company shall:
(a) For so long as each Make appropriate officers and/or directors of the BCP Entities Company available periodically and at such times as reasonably requested by BCC for consultation with BCC or its designated representative (to the CPPIB Entities individually own four percent (4%extent not prohibited by Applicable Law) or more with respect to matters relating to the business and affairs of the issued Company and outstanding Class A Shares its subsidiaries, including, without limitation, significant changes in management personnel and Class B Shares compensation of employees, introduction of new products or new lines of business, important acquisitions or dispositions of plants and equipment, significant research and development programs, the purchasing or selling of important trademarks, licenses or concessions or the proposed commencement or compromise of significant litigation;
(without regard b) Provide BCC or its designated representative (to the voting power extent not prohibited by Applicable Law) with such other rights of such Class B Sharesconsultation as may reasonably be determined by BCC to be necessary to qualify BCC's investment in the Company as a "venture capital investment" for purposes of the United States Department of Labor Regulation published at 29 C.F.R. Section 2510.3-101(d)(3)(i) and there is no Director who is a designee of such Sponsor Entity on (the Board, such Sponsor Entity shall have "Plan Asset Regulation");
(c) Grant BCC the right to designate one (1) non-voting board observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall who will be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified board of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) Company and shall receive copies of all written materials distributed provided to the Directors for purposes board of directors of the Company, provided that such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have no voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes board of determining whether there is a sufficient quorum for directors of the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable lawCompany; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
observer (i) is deemed acceptable to the Board concludes board of directors of the Company acting reasonably and in good faith and (ii) executes, prior to his or her attendance at the first of such meetings, a standard non-disclosure and market stand-off agreement with the Company in a form acceptable to the Company and BCC; and
(d) Consider, in good faith, upon advice the recommendation of BCC or its designated representative in connection with the matters on which it is consulted as described above, recognizing that the Company shall retain the ultimate discretion with respect to all such matters. In the event Blackstone transfers all or any of the Company’s outside legal counselSecurities to an affiliated entity that is intended to qualify as a "venture capital operating company" under the Plan Asset Regulation, (A) that such exclusion is reasonably necessary transferee shall be afforded the same rights with respect to preserve the attorney-client privilege between the Company afforded to BCC hereunder and its counselor or (B) that an Observer has a potential conflict of interest; providedshall be treated, however, that any for 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 counselpurposes, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedthird party beneficiary hereunder.
Appears in 2 contracts
Samples: Registration Rights Agreement (Sirius Satellite Radio Inc), Registration Rights Agreement (Sirius Satellite Radio Inc)
Observer Rights. (a) For so As long as each Domain Partners VII, L.P. or its Affiliates (collectively, “Domain”) owns not less than 400,000 shares (appropriately adjusted for any stock split, dividend, combination or other recapitalization) of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the BCP Entities and the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Domain, initially Xxxxx Xxxxx, to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observerall information so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if access to such information or attendance at such meeting could adversely affect the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-attorney client privilege between the Company and its counselor counsel or would result in disclosure of trade secrets to such representative or if Domain or its representative is or is affiliated with a direct competitor of the Company.
(Bb) As long as Xxxxxxx Healthcare V, L.P. or its Affiliates (collectively, “Xxxxxxx”) owns not less than 400,000 shares (appropriately adjusted for any stock split, dividend, combination or other recapitalization) of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Xxxxxxx, initially Xxxxxxx Xxx, to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and other materials that an Observer has a potential conflict of interestit 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney client privilege between the Company and its counsel or would result in disclosure of trade secrets to such representative or if Xxxxxxx or its representative is or is affiliated with a direct competitor of the material Company.
(c) As long as Canaan VII, L.P. or its Affiliates (collectively, “Canaan”) owns not less than 400,000 shares (appropriately adjusted for any stock split, dividend, combination or other recapitalization) of Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Canaan, initially Xxxxx Xxxxxx, to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, 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 the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney client privilege between the Company and its counsel or would result in disclosure of trade secrets to such representative or if Canaan or its representative is or is affiliated with a direct competitor of the meeting which would Company.
(d) Any representative designated pursuant to this Section 3.9, above shall be required to preserve such privilege and not enter into a confidentiality agreement containing substantially similar terms as those set forth in Section 3.3 hereof with the Company prior to any other portion thereof; or
(ii) such portion of a meeting is an executive session limited solely to independent director members the exercise of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedrights contained in this Section 3.9.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Tobira Therapeutics, Inc.)
Observer Rights. (a) For so long as each of At any time when the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard Academic Founder who is then providing services to the voting power of such Class B Shares) and there Company as an employee, officer or consultant is no Director who is a designee of such Sponsor Entity not serving on the BoardBoard of Directors, such Sponsor Entity the Company shall have invite the right Academic Founder to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior noticeDirectors in a nonvoting, including such meeting’s time and placenonspeaking observer capacity and, in this respect, shall give the same manner as the directors of the Board (the “Directors”) and shall receive Academic Founder copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer Academic Founder shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Company, upon the approval of a majority of the members of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; providedDirectors, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding withhold any information and to exclude the foregoing, the Company may exclude an Observer Academic Founder from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has could result in disclosure of trade secrets and/or other confidential information, a potential breach of the fiduciary duties of the Board of Directors, or a conflict of interest, or if the Academic Founder is employed by, or is otherwise providing services to, a Competitor of the Company.
(b) Until the first time that OrbiMed and its Affiliates collectively cease to hold at least 3,948,517 shares of Preferred Stock and/or Common Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), the Company shall invite a representative of OrbiMed to attend all meetings of the Board of Directors in a nonvoting, nonspeaking observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that any such exclusion representative shall apply only agree to such portion hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and provided further, that the Company, upon the approval of a majority 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 BoardBoard of Directors, independent auditors reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or could result in disclosure of trade secrets and/or legal counselother confidential information, as a breach of the fiduciary duties of the Board may designateof Directors, or a conflict of interest.
(c) Until the first time that F-Prime Capital Partners Healthcare Fund V LP (“F-Prime”) and its Affiliates collectively cease to hold at least 3,948,517 shares of Preferred Stock and/or Common Stock (as adjusted for any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the date hereof), the Company shall invite a representative of F-Prime to attend all meetings of the Board of Directors in a nonvoting, nonspeaking observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and an Observer (assuming other materials that it provides to its directors; provided, however, that such Observer were representative shall agree to hold in confidence and trust and to act in a member fiduciary manner with respect to all information so provided; and provided further, that the Company, upon the approval of a majority of the Boardmembers of the Board of Directors, reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or could result in disclosure of trade secrets and/or other confidential information, a breach of the fiduciary duties of the Board of Directors, or a conflict of interest.
(d) would not meet Until the then-applicable standards first time that FACIT, Inc. (“FACIT”) and its Affiliates collectively cease to hold at least 3,948,517 shares of Preferred Stock and/or Common Stock (as adjusted for independence adopted by any stock split, stock dividend, combination, or other recapitalization or reclassification effected after the New York Stock Exchange (the “NYSE”date hereof), or the Company shall invite a representative of FACIT to attend all meetings of the Board of Directors in a nonvoting, nonspeaking observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other exchange on which 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 the Company’s securities are then traded, upon the approval of a majority of the members of the Board of Directors, reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or could result in disclosure of trade secrets and/or other confidential information, a breach of the fiduciary duties of the Board of Directors, or a conflict of interest.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Turnstone Biologics Corp.)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard a. Subject to the voting power terms and conditions of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on this Agreement, the Board, such Sponsor Entity shall have Company grants to the Shareholder the right to designate and appoint one representative (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice ) who is reasonably satisfactory to the Board. Each Observer shall be a natural person. Each Observer shall be entitled , to be present at attend all meetings (including telephonic or videoconference meetings of the Board and any committee thereof Committees) of (i) the Board and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors (ii) all committees of the Board (the “DirectorsCommittees”) to the extent that all non-Committee members of the Board are not excluded from such Committee meetings, in a non-voting, observer capacity. Except as otherwise set forth herein, the Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration and provide input and advice with respect thereto (the “Approved Purposes”), but in no event shall receive the Observer (i) be deemed to be a member of the Board or any Committee; (ii) without limitation of the obligations 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 (iii) have the right to propose or offer any motions or resolutions to the Board or any Committee or to vote upon any motions or resolutions duly brought before the Board or any Committee. The presence of the Observer shall not be required or counted for purposes of establishing a quorum at any meeting of the Board or Committee.
b. The Company shall provide to the Observer copies of all notices, minutes, consents and other materials that it provides to Board members (collectively, “Board Materials”), including any draft versions, proposed written materials distributed consents, and exhibits and annexes to the Directors for purposes of any such meetings materials, at the same time and in the same manner as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory information is delivered to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing members.
c. Notwithstanding anything herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoingcontrary, the Company may exclude an the Observer from access to any material Board Materials or any Board meeting (or portion thereof if:
(ithereof) if the Board concludes determines, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company (and/or its affiliates and/or its subsidiaries) and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
(ii) such portion exclusion is necessary to comply with applicable laws, regulations, or any agreement to which the Company (and/or its affiliates and/or its subsidiaries) is a party or is otherwise bound; or (iii) such Board Materials or discussion relates to the relationship, contractual or otherwise, between the Company (and/or its affiliates and/or its subsidiaries), on one hand, and the Shareholder and/or the Observer, on the other hand, or their respective affiliates (a “Conflict of Interest”). In addition, if the Observer has knowledge of a meeting is an executive session limited solely Conflict of Interest, or reasonably believes that a Conflict of Interest may exist, the Observer shall disclose such Conflict of Interest to independent director members of the Board, independent auditors and/or legal counsel, as .
d. The Parties agree that neither the Board may designate, and an Observer (assuming such Observer were a Company nor its affiliates nor any member of the Board) would not meet the then-applicable standards for independence adopted Board or Committee shall be entitled to rely on any statements or views expressed by the New York Stock Exchange Observer in any Board or Committee meeting. The Parties further agree that all Confidential Information (as defined below) is provided to the Observer “NYSE”)AS IS” and the Company does not make, and expressly disclaims, any representation or such other exchange warranty as to the accuracy or completeness thereof. Without limiting the foregoing, the Company shall have no liability to the Observer, the Shareholder or their respective affiliates or Representatives (as defined below) resulting from any use or reliance on which the Company’s securities are then tradedany Confidential Information.
Appears in 1 contract
Observer Rights. (a) For During the Special Voting Period, so long as each the Junior Stockholders continue to hold at least 50% of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of Common Stock they held as of the issued Effective Time, the Company shall (i) give the Junior Stockholders written notice of each meeting of its Board of Directors and outstanding Class A Shares (ii) permit two representatives of the Junior Stockholders, in each case designated by their Stockholder Representative, to attend as an observer all meetings of its Board of Directors.
(b) During the Special Voting Period, so long as the Hornets Stockholders continue to hold at least 50% of the shares of Common Stock they held as of the Effective Time, the Company shall (i) give the Hornets Stockholders written notice of each meeting of its Board of Directors and Class B Shares (without regard ii) permit one representative of the Hornets Stockholders, designated by the Hornets Stockholder Representative, to the voting power attend as an observer all meetings of such Class B Sharesits Board of Directors.
(c) Each representative appointed pursuant to Section 3.5(a) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (13.5(b) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”i) and shall receive copies of all written materials distributed and other information (including, without limitation, copies of meeting minutes) given to the Directors for purposes of in connection with such meetings at the same time as the Directors (except such materials and information are given to the extent an Observer has been excluded therefrom Directors, and, upon reasonable notice and during normal business hours (ii) visit and inspect any of the properties of the Company and its Subsidiaries and (iii) discuss the affairs, finances and accounts of any such entities with the Directors, officers and key employees of the Company and its Subsidiaries. All travel and other expenses incurred by a representative in connection with attending any meeting of the Board of Directors or otherwise in connection with the rights granted in this Section 3.5 shall be the responsibility of such representative and/or the Stockholder Group by which such representative was designated. The Company shall have no liability or obligation with respect to such expenses.
(d) As a condition to attending any meetings of the Board of Directors and receiving the written materials and other information contemplated in Section 3.5(c), each representative must enter into a confidentiality and non-use agreement, in form satisfactory to the Company, pursuant to Section 3.01(b))which such representative agrees not to, without the prior written consent of the Company, disclose to any third party any information obtained about the Company or its operations or business which it may have acquired pursuant to this Agreement and the observer rights granted hereunder; provided, however, that the Observer any information that is otherwise publicly available, without breach of this provision, or has been obtained from a third party without a breach of such third party's duties, shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory not be deemed confidential information. Notwithstanding anything to the Board and the Sponsor Entity that designated such Observercontrary set forth in this Section 3.5, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer any representative from access to any material or meeting or portion thereof if:
if the Company believes (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect highly confidential proprietary information, to satisfy the Company and its counselor or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion fiduciary duties of the material Board of Directors or such portion of the meeting which would be required to preserve such privilege and not to any for other portion thereof; or
similar reasons or (ii) that such portion of representative has or intends to use information obtained about the Company or its operations or business which it may have acquired pursuant to this Agreement or the observer rights granted hereunder for unlawful or improper purposes. Each representative shall be subject to recusal in any circumstance in which a meeting is an executive session limited solely Director would be subject to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedrecusal.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Venturi Partners Inc)
Observer Rights. (a) For so long as Mitsui is a 5% Holder, (x) the Company shall, and shall cause each of the BCP Entities and the CPPIB Entities individually own four percent its Subsidiaries to, invite up to two (4%2) or more representatives of the issued and outstanding Class A Shares and Class B Shares (without regard Mitsui to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board of Directors and each Subsidiary’s board of directors (or any committee thereof of the foregoing), and (y) the Company shall be notified use its reasonable best efforts to cause each of Tecton and Pillar to invite one (1) representative of Mitsui to attend all meetings of the respective board of directors (or applicable governing body) of Tecton and Pillar (or any such meeting by reasonable prior noticerespective committees of the foregoing), including such meeting’s in each case with respect to (x) and (y), in a nonvoting observer capacity and, in this respect, shall give copies of all notices, minutes, consents, and other materials that it provides to directors (or other members of the applicable governing body) at the same time and place, in the same manner as the provided to such directors (or other members of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)applicable governing body); provided, however, that each such representative shall agree in writing to a nondisclosure agreement in a reasonable and customary form approved by the Observer Company (provided any such agreement shall have executed a non-disclosure be in substantially the same form and confidentiality no more restrictive than any similar agreement and such signed by the other acknowledgments and agreements reasonably satisfactory to directors or other members of the Board and the Sponsor Entity that designated such Observerapplicable governing body), which for the avoidance of doubt, shall permit the Observer to share provide that such representative will hold in confidence and trust all information as provided in Section 5.04so provided; and provided, further, that the Company, each Subsidiary, Tecton and Pillar may withhold any information and exclude such Observer representative from any meeting or portion thereof if access to such information or attendance at such meeting reasonably would adversely affect the attorney-client privilege between the Company, the respective Subsidiary, Tecton or Pillar and its counsel or result in disclosure of trade secrets or a conflict of interest, as determined in good faith by the disinterested members of the Board of Directors, such Subsidiary’s board of directors, the board of directors (or applicable governing body) of Tecton or the board of directors (or applicable governing body) of Pillar (as applicable).
(b) For so long as Kirin is a 5% Holder, (x) the Company shall, and shall not have voting rights with respect cause each of its Subsidiaries to, invite up to actions taken or elected not two (2) representatives of Kirin to be taken by attend all meetings of the Board of Directors and each Subsidiary’s board of directors (or be counted for purposes any committee of determining whether there is a sufficient quorum for the Board to conduct its business foregoing), and (y) the Company shall use its reasonable best efforts to cause each of Tecton and Pillar to invite one (1) representative of Kirin to attend all meetings of the respective board of directors (or applicable governing body) of Tecton and Pillar (or any respective committees of the foregoing), in each case with respect to (x) and (y), in a nonvoting observer capacity and, in this respect, shall give copies of all notices, minutes, consents, and other materials that it provides to directors (or other members of the applicable governing body) at the same time and in the same manner as provided to such directors (or such other members of the applicable governing body); provided, however, that each such representative shall agree in writing to a nondisclosure agreement in a reasonable and customary form approved by the Company (provided any such agreement shall be subject to in substantially the same form and no more restrictive than any similar agreement signed by the other directors or other members of the applicable governing body), which shall provide that such representative will hold in confidence and trust all rules governing the Board information so provided; and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the each Subsidiary, Tecton and Pillar may withhold any information provided by the Company under Section 5.04(b), and exclude such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer representative from access to any material or meeting or portion thereof if:if access to such information or attendance at such meeting reasonably would adversely affect the attorney-client privilege between the Company, the respective Subsidiary, Tecton or Pillar and its counsel or result in disclosure of trade secrets or a conflict of interest, as determined in good faith by the disinterested members of the Board of Directors, such Subsidiary’s board of directors, the board of directors (or applicable governing body) of Tecton or the board of directors (or applicable governing body) of Pillar (as applicable).
(ic) For so long as ELUS is a 5% Holder, the Company shall, and shall cause each of its Subsidiaries to, invite a representative of ELUS to attend all meetings of the Board concludes in good faith, upon advice of Directors and each Subsidiary’s board of directors (or any committee of the Company’s outside legal counselforegoing) in a nonvoting observer capacity and, (A) in this respect, shall give copies of all notices, minutes, consents, and other materials that it provides to directors at the same time and in the same manner as provided to such directors; provided, however, that such exclusion is representative shall agree in writing to a nondisclosure agreement in a reasonable and customary form approved by the Company (provided any such agreement shall be in substantially the same form and no more restrictive than any similar agreement signed by the other Directors), which shall provide that such representative will hold in confidence and trust all information so provided; and provided, further, that the Company and each Subsidiary may withhold any information and exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting reasonably necessary to preserve would adversely affect the attorney-client privilege between the Company or the respective Subsidiary and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion of as determined in good faith by 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 disinterested members of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), Directors or such other exchange on which the CompanySubsidiary’s securities are then tradedboard of directors (as applicable).
Appears in 1 contract
Observer Rights. (a) For so long as each In the event the OMERS Group Designee is not an employee of OMERS, the BCP Entities and the CPPIB Entities individually own four percent OMERS Group shall also be entitled to designate one observer (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity “Observer”). Such Observer shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board; provided, however, that such Observer shall not be entitled to vote on any matter presented to the Board.
(b) The Corporation shall give written notice (including any proposed agenda) to OMERS (and, upon OMERS’ written request, to the Observer) of each meeting of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s at the same time and place, in the same manner as the directors members of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes notice of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))meetings; provided, however, that the Observer failure to give such notice shall have executed a non-disclosure and confidentiality agreement and not affect the validity of any action taken at any such other acknowledgments and agreements reasonably satisfactory meeting. OMERS (and, upon OMERS’ written request, to the Board Observer) shall be entitled to receive all written materials and other information given to the Sponsor Entity that designated directors of the Corporation in connection with such Observermeetings at the same time such materials are given to such directors. If the Corporation proposes to take action by written consent in lieu of a meeting of the Board, which for the avoidance Corporation shall give a copy of doubt, shall permit the Observer such consent to share information as provided in Section 5.04OMERS; provided, furtherhowever, that the failure to give a copy of such Observer (x) consent shall not have voting rights with respect affect the validity of any action taken pursuant to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01consent.
(bc) OMERS acknowledges that the Observer may be furnished with non-public information related to the Corporation pursuant to this Section 2.4 or may learn of such information as a result of his or her attendance at meetings of the Board. OMERS shall cause the Observer, if any, to hold all confidential or proprietary information in confidence, and not to use or disclose, any such information provided to or learned by the Observer in connection with the rights provided in this Section 2,4 except in furtherance of OMERS’ internal management of its investment. OMERS shall be responsible for any use or disclosure by the Observer in violation of this Section 2.4. Notwithstanding any other provision of this Section 2.4 to the foregoingcontrary, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) the Corporation reserves the right not to provide information to the Observer and to exclude the Observer from any meeting (or portion thereof) of the Board concludes if delivery of such information or attendance at any such meeting (or portion thereof) by the Observer would, or could reasonably be expected to, cause, in good faith, the good-faith judgment of the Board (based upon advice of outside counsel), the Company’s outside legal counsel, Corporation to (A) that such exclusion is reasonably necessary to preserve lose or waive the attorney-client privilege between the Company Corporation and its counselor counsel or (B) that an Observer has a potential conflict of interest; providedviolate any obligation under any confidentiality or other similar agreement negotiated in good faith by the Corporation, 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 the Observer shall not be entitled to attend any meeting of the Board during discussions regarding a meeting transaction or other action relating to OMERS or any Affiliate thereof.
(d) The Board shall have the right to require OMERS to change the Observer for cause. This Section 2.4 shall (i) have no force or effect during any period in which the OMERS Group Designee is an executive session limited solely to independent director members employee of OMERS, and (ii) automatically terminate, and the rights and obligations of the Boardparties hereunder shall cease to have any further effect, independent auditors and/or legal counsel, at such time as the Board may designate, and an Observer (assuming such Observer were a member of OMERS Group ceases to own the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedOMERS Minimum Percentage.
Appears in 1 contract
Observer Rights. (a) For Company further acknowledges and agrees that commencing on the Closing Date and for so long as each Tontine and/or its Affiliates own at least ten percent (10%) of the BCP Entities and outstanding shares of Common Stock (including the CPPIB Entities individually own four percent (4%) or more Conversion Shares issuable upon Conversion of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity Notes on the Boardan as converted basis), such Sponsor Entity Tontine shall have the right to designate one Person who is either an employee of Tontine or is otherwise reasonably acceptable to the Board (1the “Designee”) non-voting to act as an observer to the Board as provided below (each, an “ObserverObserver Rights”). The appointment and removal of During such time as Tontine has Observer Rights, Company shall invite the Designee to attend any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee committees thereof (at the same time directors are invited thereto) and shall provide the Designee with such materials (at the same time such materials are provided to directors) as Company provides to directors in connection with their service on the Board and any committees thereof, provided that the Designee need not be notified permitted to attend (i) any portion of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes or be provided with any portion of such meetings at the same time as the Directors (except materials to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); providedthat so doing would jeopardize any legal privilege, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve including the attorney-client privilege between privilege, and to the Company extent the subject of such meeting or materials is potentially adverse to Tontine and its counselor or (B) that an Observer has a potential conflict of interest; 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 any portion of a any such meeting is an executive session limited solely to independent director attended only by the members of the Board, independent auditors and/or legal counsel, as Board in executive session. The exercise by Tontine of Observer Rights is conditioned upon Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to Company providing for Tontine’s and the Designee’s preservation of the confidentiality of any materials provided or information received at any meeting of the Board may designate, and an Observer (assuming or any committee thereof. Company shall promptly reimburse the Designee for all reasonable expenses incurred in connection with the Designee’s attendance at such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedmeetings.
Appears in 1 contract
Samples: Senior Secured Convertible Note Purchase Agreement (Westmoreland Coal Co)
Observer Rights. On and after the Closing until the earlier of (ai) For so long the fifth anniversary of this Agreement or (ii) the date on which the Purchaser Group (as each defined in Section 10.4 below) ceases to collectively own a number of shares of Common Stock equal to at least thirty percent (30%) of the BCP Entities shares of Common Stock held collectively by the Purchaser Group immediately after the Closing (as adjusted for stock splits, stock dividends, combinations, reorganizations, reclassifications and other similar events), the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Company shall have the right to designate permit one (1) representative designated by the Purchaser and reasonably acceptable to the Company (the "PURCHASER OBSERVER") to attend, in a non-voting observer to the Board (eachcapacity, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings each meeting of the Board of Directors of the Company and each meeting of any committee thereof and to participate in all discussions during each such meeting. The Company shall be notified send to the Purchaser Observer notice of the time and place of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except notice is sent to its directors. The Company shall also provide to the extent an Purchaser Observer has been excluded therefrom pursuant to Section 3.01(b)); providedcopies of all notices, howeverreports, that minutes, contracts and other documents, at the Observer shall have executed a non-disclosure time and confidentiality agreement and in the same manner as such other acknowledgments and agreements reasonably satisfactory documents are provided to the Board of Directors of the Company. Any materials furnished to the Purchaser Observer and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided discussions and presentations in Section 5.04; provided, further, that such Observer (x) shall not have voting rights connection with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) at any meeting shall be subject considered confidential information and the Purchaser Observer will keep such materials and discussions confidential and will not disclose or divulge such materials and discussions to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) third party. Notwithstanding the foregoing, the Company may reserves the right to exclude an the Purchaser Observer from access to any material materials or meeting meetings or portion portions thereof if:
(i) if the Board concludes in good faithof Directors or management of the Company shall reasonably determine, upon advice of counsel in the Company’s outside legal counsel, case of (A) or (B), that such exclusion is reasonably necessary (A) to preserve the attorney-client privilege between the Company and its counselor or privilege, (B) that an Observer has to prevent a potential conflict of interest; provided, however, (C) to protect confidential proprietary information or (D) because the Purchaser Observer's presence may otherwise be detrimental to the business interests of the Company. The Company expressly acknowledges that any such exclusion shall apply only to such portion of the material or such portion of the meeting which following persons would be required acceptable to preserve such privilege and not the Company if selected by the Purchaser to any other portion thereof; or
(ii) such portion of a meeting is an executive session limited solely to independent director members of the Boardserve as Purchaser Observer: Xxxxxx Xxxx, independent auditors and/or legal counselXxxx Xxxxx, as the Board may designateXxxx Xxxx, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedXxxxx Xxxx.
Appears in 1 contract
Samples: Common Stock and Warrant Purchase Agreement (Seachange International Inc)
Observer Rights. (a) For so long as any Notes remain outstanding, (i) each holder of more than 25% of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more aggregate principal amount of the issued and Notes then outstanding Class A Shares and Class B Shares (without regard to the voting power of so long as such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall Noteholder does not have the right to designate appoint an observer under any Senior Debt Document) will have the right to appoint one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer boards of directors of the Issuers and their Subsidiaries, and each committee of the boards of directors of the Issuers and their Subsidiaries (other than the compensation and audit committees), who shall be entitled to be present at attend all meetings of the Board boards of directors and any each committee thereof of the boards of directors (other than the compensation and audit committees) of the Issuers and their Subsidiaries, and (ii) each Observer and Required Notice Party shall be notified of any such entitled to receive all reports, meeting by reasonable prior noticematerials, including such meeting’s time notices, and place, in the same manner other materials as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed when provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))board members; provided, however, that the Issuers and their Subsidiaries may exclude any Observer shall have executed a non-disclosure from portions of meetings and confidentiality agreement any Observer or Required Notice Party from the receipt of reports, meeting materials, notices, and such other acknowledgments and agreements reasonably satisfactory materials solely to the Board extent that (i) outside counsel to the Issuers and their Subsidiaries reasonably determines that the Sponsor Entity that designated such Observer, which for the avoidance participation of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights in such portions of meetings or the receipt of such materials by such Observer would result in the loss of the attorney-client privilege by the Issuers and their Subsidiaries with respect to the underlying subject matter thereof or (ii) the underlying subject matter relates specifically to actions taken or elected not to be taken by the Board or be counted for purposes Issuers and their Subsidiaries with respect to the Notes. All reasonable expenses of determining whether there is a sufficient quorum for the Board to conduct its business Observer and (y) all expenses of providing the foregoing materials shall be subject to all rules governing paid by the Board and nothing herein shall prevent Issuers. The Issuers agree that the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt boards of directors of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01Issuers and their Subsidiaries will meet at least quarterly.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Securities Purchase Agreement (Roadrunner Transportation Services Holdings, Inc.)
Observer Rights. (a) For so As long as each 5AM holds at least 11,321,376 shares of Common Stock issued or issuable upon shares of Preferred Stock (subject to appropriate adjustment in the BCP Entities and the CPPIB Entities individually own four percent (4%) event of any stock dividend, stock split, combination or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power other similar recapitalization of such Class B Shares) and there is no Director who is shares), the Company shall invite a designee representative of such Sponsor Entity on the Board, such Sponsor Entity shall have the right 5AM to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all attend meetings of the Board of Directors in a nonvoting observer capacity, and any committee thereof and in this respect the Company shall be notified give such representative copies of any notices, minutes, consents, and other materials related to each such meeting by reasonable prior notice, including such meeting’s that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel, result in disclosure of trade secrets or (B) that an Observer has a potential conflict of interest, would violate any agreement with any third party, or if such Investor or its representative is a Competitor. The initial representative of 5AM is Pxxxxxxx Xx.
(b) As long as Northpond holds at least 8,269,463 shares of Common Stock issued or issuable upon shares of Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization of such shares), the Company shall invite a representative of Northpond to attend meetings of the Board of Directors in a nonvoting observer capacity, and in this respect the Company shall give such representative copies of any notices, minutes, consents, and other materials related to each such meeting that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel, result in disclosure of trade secrets or a conflict of interest, would violate any agreement with any third party, or if such Investor or its representative is a Competitor. The initial representative of Northpond is Sxxxx X. Xxxxxx.
(c) As long as Patient Square holds at least 13,583,265 shares of Common Stock issued or issuable upon shares of Preferred Stock (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization of such shares), the Company shall invite a representative of Patient Square to attend meetings of the material Board of Directors in a nonvoting observer capacity, and in this respect the Company shall give such representative copies of any notices, minutes, consents, and other materials related to each such meeting that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such portion of information or attendance at such meeting could adversely affect the meeting which would be required to preserve such attorney-client privilege between the Company 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 its counsel, as the Board may designateresult in disclosure of trade secrets or a conflict of interest, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)violate any agreement with any third party, or if such other exchange on which the Company’s securities are then tradedInvestor or its representative is a Competitor.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Camp4 Therapeutics Corp)
Observer Rights. (a) For so As long as each entities controlling, controlled by or under common control with XXXXXXXX Xxxxxxxxxxxx (“Qualcomm”) own not less than fifty percent (50%) of the BCP Entities and aggregate number of shares of Series B Preferred Stock acquired pursuant to that certain Series B Purchase Agreement dated as of December 1, 2006, the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Qualcomm, who shall be reasonably acceptable to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardCompany, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, provided however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
if the Company reasonably determines (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; providedcounsel, 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) access to such portion information or attendance at such meeting could result in disclosure of trade secrets, and (iii) access to such information or attendance at such meeting could result in a meeting conflict of interest between Qualcomm or its representative and the Company or its counsel. Qualcomm agrees, and any representative of Qualcomm will agree, to hold in confidence and trust and to act in a fiduciary manner with respect to all information provided to it or learned by it in connection with its rights under this Agreement, except to the extent otherwise required by law and any other regulatory process to which Qualcomm is an executive session limited solely subject. Qualcomm also agrees to independent director members execute a Non-Disclosure Agreement, which is in form and substance satisfactory to Qualcomm and the Company. The rights described herein shall terminate and be of no further force or effect upon the earliest of the Board, independent auditors and/or legal counseldate of: (i) the closing of an Initial Public Offering or (ii) when the Company first becomes subject to the periodic reporting requirement of Sections 12(g) or 15(d) of the Securities Exchange Act of 1934, as the Board may designate, and an Observer (assuming amended. The confidentiality provision hereof will survive any such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedtermination.
Appears in 1 contract
Observer Rights. (a) For so As long as each Xxxxx Xxxxxxxx is an employee (but not a member of the BCP Entities Board of Directors) of the Company and the CPPIB Entities individually own four owns greater than one percent (41%) or more of the issued and shares of the Company’s Common Stock (after giving effect to conversion into Common Stock of all outstanding Class A Shares and Class B Shares (without regard securities), the Company shall invite Xxxxx Xxxxxxxx to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such observer copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such observer shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor or counsel.
(Bb) As long as Xxxx Xxxxxx is an employee (but not a member of the Board of Directors) of the Company and owns greater than one percent (1%) of the shares of the Company’s Common Stock (after giving effect to conversion into Common Stock of all outstanding securities), the Company shall invite Xxxx Xxxxxx to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such observer copies of all notices, minutes, consents, and other materials that an Observer has a potential conflict of interestit provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such observer 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only observer from any meeting or portion thereof if access to such portion of information or attendance at such meeting could adversely affect the material or such portion of attorney-client privilege between the meeting which would be required to preserve such privilege Company and not to any other portion thereof; orits counsel.
(iic) such portion of a meeting As long as Xxxxxxxx Xxxxx 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 an Observer employee (assuming such Observer were but not a member of the BoardBoard of Directors) would not meet of the then-applicable standards for independence adopted by Company and owns greater than one percent (1%) of the New York Stock Exchange (the “NYSE”), or such other exchange on which shares of the Company’s securities are then tradedCommon Stock (after giving effect to conversion into Common Stock of all outstanding securities), the Company shall invite Xxxxxxxx Xxxxx to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such observer copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such observer 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 the Company reserves the right to withhold any information and to exclude such observer from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel.
(d) As long as GIM owns not less than 895,416 shares of the Series C Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of GIM to attend all meetings of the Board of Directors and committee meetings (including executive sessions) in a nonvoting observer capacity in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold all information so provided in confidence on the same basis as if such information had been provided directly to GIM; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel and the Company has withheld any such information from, or excluded from any such meeting or portion thereof, all Persons invited to attend the meetings of the Board of Directors pursuant to this Subsection 3.3 or (ii) if such Investor or its representative is, as determined by the Board of Directors reasonably and in good faith, a Competitor of the Company. Such representative shall initially be Xxxx Xxxxxxx.
(e) As long as LEC owns not less than 716,333 shares of the Series C Preferred Stock (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of LEC to attend all meetings of the Board of Directors and committee meetings (including executive sessions) in a nonvoting observer capacity in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold all information so provided in confidence on the same basis as if such information had been provided directly to LEC; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel and the Company has withheld any such information from, or excluded from any such meeting or portion thereof, all Persons invited to attend the meetings of the Board of Directors pursuant to this Subsection 3.3 or (ii) if such Investor or its representative is, as determined by the Board of Directors reasonably and in good faith, a Competitor of the Company. Such representative shall initially be Xxxxx Xxxxxx.
(f) As long as X. Xxxx Price Investors collectively own not less than 889,813 shares of Series D Preferred Stock (or the equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of X. Xxxx Price to attend all meetings of the Board of Directors and committee meetings (including executive sessions) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold all information so provided in confidence on the same basis as if such information had been provided directly to X. Xxxx Price; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if (i) access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel and the Company has withheld any such information from, or excluded from any such meeting or portion thereof, all Persons invited to attend the meetings of the Board of Directors pursuant to this Subsection 3.3 or (ii) if X. Xxxx Price or its representative is, as determined by the Board of Directors reasonably and in good faith, a Competitor of the Company. Such representative shall initially be Xxxxx Xxx.
Appears in 1 contract
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent Amgen Ventures, LLC (4%“Amgen”) shall be entitled to designate an individual (an “Amgen Observer”), who shall initally [SIC] be Xxxxx Xxxxx (or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on some other individual approved by the Board, such Sponsor Entity shall have the right to designate including at least one (1) non-voting observer to the Board (eachSeries C Director), an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer who shall be entitled (i) to be present at all meetings of the Board Board, and any committee thereof and shall be notified (ii) to receive advance notice of any all such meeting by reasonable prior noticemeetings, including such meeting’s meetings’ time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an directors. The Amgen Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect the right to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if vote at any time (upon written notice meetings and shall not be entitled to the Company), a Sponsor Entity elects to suspend the receipt of the information any indemnification or insurance coverage provided by the Company under Section 5.04(b)particular to officers and directors of the Company. The Company, such Sponsor Entity may also elect to suspend in its sole discretion, reserves the right to appoint an exclude the Amgen Observer in accordance with from all or part of any meeting of the Board and to withhold information and redact portions or entire documents to the extent reasonably necessary to protect confidential information of the Company, maintain a legal privilege or address any actual or potential conflict of interest between the Amgen Observer or Amgen or any of Amgen’s affiliates, on the one hand, and the Company, on the other hand. The observer rights provided under this Section 3.012.8(a) shall terminate upon the date that Amgen owns less than the full amount of shares of Series C Preferred than it has purchased pursuant to the Purchase Agreement. Any amendment or waiver to this Section 2.8(a) shall require the prior written consent of Amgen.
(b) Notwithstanding Following the foregoingdate Xxxxx Xxxxx shall cease to be a director of the Company, for so long as LVP holds at least five percent (5%) of the Company may exclude then outstanding shares of Preferred Stock of the Company, LVP shall be entitled to designate an Observer from access to any material or meeting or portion thereof if:
individual (a “LVP Observer”) (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 present at all meetings of the Board, independent auditors and/or legal counseland (ii) to receive advance notice of all such meetings, including such meetings’ time and place, in the same manner as the directors. The LVP Observer shall not have the right to vote at any meetings and shall not be entitled to any indemnification or insurance coverage provided by the Company particular to officers and directors of the Company. The Company, in its sole discretion, reserves the right to exclude the LVP Observer from all or part of any meeting of the Board may designateand to withhold information and redact portions or entire documents to the extent reasonably necessary to protect confidential information of the Company, maintain a legal privilege or address any actual or potential conflict of interest between the LVP Observer or LVP or any of LVP’s affiliates, on the one hand, and the Company, on the other hand. Any amendment or waiver to this Section 2.8(b) shall require the prior written consent of LVP.
(c) For so long as The Vertical Group, L.P. together with its affiliates (“Vertical”) holds at least five percent (5%) of the then outstanding shares of Preferred Stock of the Company, Vertical shall be entitled to designate an Observer individual (assuming such Observer were a member “Vertical Observer”) (i) to be present at all meetings of the Board, and (ii) would to receive advance notice of all such meetings, including such meetings’ time and place, in the same manner as the directors. The Vertical Observer shall not meet have the then-applicable standards for independence adopted right to vote at any meetings and shall not be entitled to any indemnification or insurance coverage provided by the New York Stock Exchange Company particular to officers and directors of the Company. The Company, in its sole discretion, reserves the right to exclude the Vertical Observer from all or part of any meeting of the Board and to withhold information and redact portions or entire documents to the extent reasonably necessary to protect confidential information of the Company, maintain a legal privilege or address any actual or potential conflict of interest between the Vertical Observer or Vertical or any of Vertical’s affiliates, on the one hand, and the Company, on the other hand. Any amendment or waiver to this Section 2.8(c) shall require the prior written consent of Vertical.
(the d) For so long as Nextech III Oncology, LPCI (“NYSENextech”), together with its affiliates, holds at least fifty percent (50%) of the shares of Series C-1 Preferred originally purchased by it under the Purchase Agreement, Nextech shall be entitled to designate an individual (a “Nextech Observer”) (i) to be present at all meetings of the Board, and (ii) to receive advance notice of all such meetings, including such meetings’ time and place, in the same manner as the directors. The Nextech Observer shall not have the right to vote at any meetings and shall not be entitled to any indemnification or such other exchange on which insurance coverage provided by the Company particular to officers and directors of the Company. The Company, in its sole discretion, reserves the right to exclude the Nextech Observer from all or part of any meeting of the Board and to withhold information and redact portions or entire documents to the extent reasonably necessary to protect confidential information of the Company, maintain a legal privilege or address any actual or potential conflict of interest between the Nextech Observer or Nextech or any of Nextech’s securities are then tradedaffiliates, on the one hand, and the Company, on the other hand. Any amendment or waiver of this Section 2.8(d) shall require the prior written consent of Nextech.
Appears in 1 contract
Observer Rights. (a) For so Subject to Section 4 of the Fourth Restated Voting --------------- Agreement of even date herewith, as long as each Xerox Corporation ("Xerox") owns not less than 455,000 shares of Series A Preferred Stock or Common Stock issued or issuable upon conversion thereof (as adjusted for any subsequent stock dividends, combinations, splits or recapitalizations), the BCP Entities and the CPPIB Entities individually Company shall invite Xerox to send at Xerox' own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate expense one (1) non-voting observer representative of Xerox reasonably acceptable to the Company's Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice Directors to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeattend, in the same manner as the directors a nonvoting observer capacity, each meeting of the its Board (the “of Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share all information as provided in Section 5.04connection with such meetings; providedand, provided further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that Company believes access to such exclusion is reasonably necessary to preserve information or attendance at such meeting or portion thereof could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has would result in disclosure of highly confidential proprietary information on matters where Xerox or its representative may be a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion competitor of the material Company. Xerox agrees, and any representative of Xerox will agree, to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with its rights under this Section 2.6, and such portion obligations will survive any termination of this Section 2.6 or this Agreement. The rights (but not the obligations) of Xerox under this Section 2.6 shall not be assignable and shall terminate as to Xerox and be of no further force or effect upon the earlier to occur of:
(i) the date upon which the Company or a parent of the meeting Company consummates a sale of securities pursuant to a registration statement filed by the Company under the Act in connection with the firm commitment underwritten offering of its securities to the general public or the date upon which would be required the Company first becomes subject to preserve such privilege and not to any other portion thereofthe periodic reporting requirements of Section 12(g) or 15(d) of the 1934 Act, whichever event shall first occur; or
(ii) the date upon which the Company consummates (i) a consolidation or merger of the Company or any affiliated corporation with or into any other corporation or corporations (other than a consolidation or merger of this Company with or into a wholly owned subsidiary of this Company), (ii) a sale of all or substantially all of the assets or business of the Company in one or more related transactions, (iii) a transaction or series of related transactions (other than a public offering of the Company's securities) in which the stockholders of the Company immediately prior to such portion transaction(s) own, as a result of such transaction(s), less than a majority of the voting securities of the successor or surviving corporation, which shall not be the Company in the event of a meeting is an executive session limited solely to independent director members consolidation or merger, immediately thereafter, or (iv) a transaction or series of related transactions (other than a public offering of the Board, independent auditors and/or legal counsel, as Company's securities) in which the Board may designate, and an Observer (assuming such Observer were a member Company issues shares representing more than 50% of the Board) would not meet voting power of the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or Company immediately after giving effect to such other exchange on which the Company’s securities are then tradedtransaction.
Appears in 1 contract
Observer Rights. A Class B Limited Partner Majority shall be entitled to appoint a representative (awho shall be an employee of a Limited Partner) For so long as each of the BCP Entities and Limited Partners holding Class B Limited Partnership Interests (the CPPIB Entities individually own four percent “Observer”) to (4%i) or more attend in a non-voting capacity any meeting of the issued board of directors of the General Partner, or of any committee of the board of directors of the General Partner, whether in person, telephonically, or by such other means whereby all attendees of the meeting can hear each other, (ii) receive notices of any such meeting, and outstanding Class A Shares any other information distributed in connection with any such meeting, concurrently with the delivery of such notices and Class B Shares (without regard other information to the voting power directors or committee members, as the case may be, (iii) receive minutes of any such meeting, concurrently with the delivery of such Class B Sharesminutes to the directors or committee members, as the case may be, and (iv) receive a copy of any unanimous consent action (and there is no Director who is a designee any supporting materials in respect thereof) proposed to be taken in lieu of any such meeting, concurrently with the delivery of such Sponsor Entity on consent action (and supporting materials) to the Boarddirectors or committee members, as the case may be, and (v) receive a copy of any signed unanimous consent action taken in lieu of any such Sponsor Entity meeting, within one (1) week after the date of such consent. However, the General Partner shall have the right to designate one (1) non-voting observer to withhold from the Board (eachObserver any materials or other information, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings including portions of the Board minutes of meetings, and to exclude the Observer from any committee thereof and shall be notified portion of any such meeting by meeting, if the General Partner determines, in its reasonable prior noticediscretion, including that the Observer’s access to such information, or participation in such portion of any such meeting, could (x) jeopardize an attorney-client privilege, (y) result in a breach by the Partnership of its obligations under any agreement (including any LGS Transaction Document) or violate any applicable law, or (z) interfere with the proper discharge of the fiduciary duties of the General Partner’s time and placedirectors. Furthermore, in if the same manner as the board of directors of the Board (General Partner, or any committee of the “Directors”) and shall receive copies board of all written materials distributed to directors of the Directors for purposes General Partner, is considering any transaction or matter in which the General Partner or the Partnership may have an adversarial relationship with any Limited Partner holding Class B Limited Partnership Interests, or any of such meetings at Limited Partner’s Affiliates, then the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer General Partner shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an withhold from the Observer in accordance with this Section 3.01.
(b) Notwithstanding any materials or other information relating to such transaction or matter and exclude the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 in which such transaction or matter is an executive session limited solely to independent director members discussed. The Partnership will reimburse the Observer’s reasonable out-of-pocket costs incurred in connection with attending any meeting of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member board of directors of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)General Partner, or such other exchange on which any committee of the Company’s securities are then tradedboard of directors of the General Partner.
Appears in 1 contract
Samples: Limited Partnership Agreement (CorEnergy Infrastructure Trust, Inc.)
Observer Rights. ARCC (a) For so long as it is a Continuing Series C Share Holder) and each of the BCP Entities Credit Suisse, NYL and the CPPIB Entities individually own four percent PennantPark (4%) or more so long as such New Mezzanine Investor holds Series A Shares that constitute at least 50% of the issued and outstanding Class Series A Shares and Class B Shares (without regard to the voting power of acquired by such Class B Shares) and there is no Director who is a designee of such Sponsor Entity New Mezzanine Investor on the Board, such Sponsor Entity date hereof) shall have the right to designate one a separate individual (1) non-voting observer to the “Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present attend (in person or telephonically, at all meetings such individual’s option) each meeting of the Board and the board of directors of each of the Company’s Significant Subsidiaries (a “Sub Board”) and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s board of directors; provided that each Member entitied to designate a Board Observer will notify the Company from time and place, in to time of the same manner as the directors identity of the Board Observer and his or her address (the “Directors”including facsimile number) for notice and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04communications; provided, further, that the Board Observer may be excluded from any such Observer (x) shall not have voting rights with respect meeting to actions taken or elected not to be taken by the extent that the Board or be counted for purposes of determining whether there is a sufficient quorum for the Sub Board to conduct its business and (yor such committee) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) the Board concludes determines in good faith, upon advice of the Company’s outside legal counsel, (A) faith that such exclusion is reasonably necessary required to preserve any evidentiary privilege or any portion of any such meeting during which the attorney-client privilege between respective interests of the Company and its counselor Subsidiaries and those of such Member, as to the matter(s) to be discussed or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only actions to be taken during such portion of such meeting, materially conflict (in the material good faith judgment of the Board or such portion Sub Board). The Company will send, or cause to be sent, to each such Member the notice of the time and place of any such meeting which would be required in the same manner and at the same time as notice is sent 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 the members of the Board, independent auditors and/or legal counselsuch Sub Board or such committee, as the case may be. The Company shall also provide, or cause to be provided, to each such Member copies of all notices, reports, minutes and other documents and materials at the same time and in the same manner as they are provided to the members of each the Board, such Sub Board may designateor such committee; provided that the failure to deliver or make available one or more of the items described in this sentence or the preceding sentence will have no impact on the validity of any action taken by the Board, such Sub Board or such committee. If the Company or any of its Significant Subsidiaries proposes to take any action by written consent in lieu of a meeting of its board of directors or any committee thereof, the Company or such Significant Subsidiary shall provide a copy thereof to each such Member in the same manner and an Observer (assuming such Observer were a member at the same time as notice is sent to the members of the Board) would not meet , the then-applicable standards for independence adopted Sub Board or such committee, as the case may be; provided that the failure to deliver or make available one or more of the items described in this sentence will have no impact on the validity of any action taken by the New York Stock Exchange (the “NYSE”)Board, such Sub Board or committee. The Company shall reimburse, or cause one of its Subsidiaries to reimburse, each Board Observer for all reasonable, documented out-of-pocket costs incurred by him or her in connection with traveling to and from and attending such other exchange on which meetings of the Company’s securities are then tradedBoard, each such Sub Board or any committees thereof.
Appears in 1 contract
Samples: Members Agreement
Observer Rights. (a) For During the Special Voting Period, so long as each the Junior Stockholders continue to hold at least 50% of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of Common Stock they held as of the issued and outstanding Class A Shares and Class B Shares Effective Time, the Company shall permit two representatives of the Junior Stockholders, in each case designated by their Stockholder Representative, to attend as an observer all meetings of its Board of Directors.
(without regard b) During the Special Voting Period, so long as the Venturi Stockholders continue to hold at least 50% of the voting power shares of such Class B SharesCommon Stock they held as of the Effective Time, the Company shall permit one representative of the Venturi Stockholders, designated by the Venturi Stockholder Representative, to attend as an observer all meetings of its Board of Directors.
(c) Each representative appointed pursuant to Section 3.5(a) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (13.5(b) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”i) and shall receive copies of all written materials distributed and other information (including, without limitation, copies of meeting minutes) given to the Directors for purposes of in connection with such meetings at the same time as the Directors (except such materials and information are given to the extent an Observer has been excluded therefrom Directors, and, upon reasonable notice and during normal business hours (ii) visit and inspect any of the properties of the Company and its Subsidiaries and (iii) discuss the affairs, finances and accounts of any such entities with the Directors, officers and key employees of the Company and its Subsidiaries. All travel and other expenses incurred by a representative in connection with attending any meeting of the Board of Directors or otherwise in connection with the rights granted in this Section 3.5 shall be the responsibility of such representative and/or the Stockholder Group by which such representative was designated. The Company shall have no liability or obligation with respect to such expenses.
(d) As a condition to attending any meetings of the Board of Directors and receiving the written materials and other information contemplated in Section 3.5(c), each representative must enter into a confidentiality and non-use agreement, in form satisfactory to the Company, pursuant to Section 3.01(b))which such representative agrees not to, without the prior written consent of the Company, disclose to any third party any information obtained about the Company or its operations or business which it may have acquired pursuant to this Agreement and the observer rights granted hereunder; provided, however, that the Observer any information that is otherwise publicly available, without breach of this provision, or has been obtained from a third party without a breach of such third party's duties, shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory not be deemed confidential information. Notwithstanding anything to the Board and the Sponsor Entity that designated such Observercontrary set forth in this Section 3.5, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer any representative from access to any material or meeting or portion thereof if:
if the Company believes (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect highly confidential proprietary information, to satisfy the Company and its counselor or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion fiduciary duties of the material Board of Directors or such portion of the meeting which would be required to preserve such privilege and not to any for other portion thereof; or
similar reasons or (ii) that such portion of representative has or intends to use information obtained about the Company or its operations or business which it may have acquired pursuant to this Agreement or the observer rights granted hereunder for unlawful or improper purposes. Each representative shall be subject to recusal in any circumstance in which a meeting is an executive session limited solely Director would be subject to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedrecusal.
Appears in 1 contract
Observer Rights. 6.1 The Company shall invite a representative of Investor (a) For so long as each the "Representative"), which Representative must be reasonably acceptable to the Company, to attend all meetings of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more Company's Board of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is Directors in a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer capacity and, in this respect, shall give such Representative copies of all notices, minutes, consents and other materials that it provides to all of its directors; provided, however, (i) that the Board (eachCompany reserves the right to withhold any information and to exclude such Representative from any meeting, an “Observer”). The appointment and removal of or any Observer shall be portion thereof, as is reasonably determined by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings Chairman of the Board and any committee thereof and shall be notified or a majority of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors members of the Board (the “Directors”) and shall receive copies of all written materials distributed Directors to the Directors be necessary for purposes of such meetings confidentiality, competitive factors, attorney-client privilege or other reasonable purposes; and (ii) that in no event shall the failure to provide the notice described above invalidate in any way any action taken at a meeting of the Board of Directors. The Company shall not compensate Investor nor reimburse Investor for expenses incurred in exercising its rights under this paragraph 6.1. The Investor and its Representative shall use commercialy reasonable efforts to maintain the confidentiality of all financial, confidential and proprietary information of the Company acquired as a result of the Investor exercising its rights under this paragraph 6.1 in accordance with the same standard of care that the Investor applies to protect its own confidential information of like character (but which in any event shall be not less than a reasonable standard of care). This obligation shall not apply to any information which (a) at the same time as of disclosure or discovery, is in the Directors public domain; or (b) after disclosure, becomes part of the public domain by publication or otherwise except by breach of this Agreement; or (c) was in the Investor's possession prior to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))time of disclosure by the Company and was not acquired, directly or indirectly, from the Company; or (d) the Investor or its Representative receives from a third party; provided, however, that to the Observer shall have executed knowledge of the Company, the source of such information is not bound by a non-disclosure and confidentiality agreement and such or other acknowledgments and agreements reasonably satisfactory contractual or legal obligation of confidentiality to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights Company with respect to actions taken such information; or elected not to be taken (e) is developed by the Board or be counted for purposes Investor subsequent to and independent of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Stock Purchase Agreement (Qmed Inc)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard Activant shall be allowed to the voting power of such Class B Shares) and there is no Director who is appoint a designee of such Sponsor Entity on (the Board, such Sponsor Entity shall have the right “Observer”) to designate one (1) act as a non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board Company’s board of directors and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))committees thereof; provided, however, that if a Series C Director Triggering Event has occurred, or Xxxxx Xxxxxxxxx is serving as a member of the Observer shall have executed a non-disclosure and confidentiality agreement Company’s board of directors, then any designee and such other acknowledgments designee’s participation in any meeting of the Company’s board of directors and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observerany committees thereof, which for the avoidance of doubtin each case, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to the prior approval of the Common Designee (which approval shall not be unreasonably withheld, conditined or delayed). The Company will provide the Observer notice of all rules governing meetings of the Board Company’s board of directors and nothing herein shall prevent board committees at the Board from acting by written instrument time notice is given to the extent permitted by applicable law; provided, further, that if at directors and will provide copies of any time (upon written notice material distributed to the Company), a Sponsor Entity elects to suspend the receipt of the information directors; provided by that the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding exclude the foregoing, the Company may exclude an Observer from access to any material of such materials or meeting meetings or portion portions thereof if:
if (ia) the Board concludes in good faith, Company believes upon advice of the Company’s outside legal counsel, (A) counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege, (b) the Company believes that such exclusion is reasonably necessary to protect the Company’s trade secrets, (c) the Observer or one of its affiliates has a direct interest in the subject matter that is adverse to that of the Company, or (d) if a Series C Director Triggering Event has occurred, or Xxxxx Xxxxxxxxx is serving as a member of the Company’s board of directors, such participation or access has not been approved in advance by the Common Designee (which approval shall not be unreasonably withheld, conditined or delayed). The Company will provide the Observer with copies of any minutes of the meetings of the Board, its committees or sub-committees at the same time such minutes are made available to the Board or the committee or sub-committee members; provided, however, the Company shall not be obligated to provide such minutes to the extent that it is necessary (i) upon the advice of counsel, to protect the attorney-client privilege between the Company and its counselor counsel; (ii) in order to discharge the fiduciary duties of the Company’s board of directors (or any committees or sub-committees thereof); (iii) to protect the Company’s trade secrets; (iv) and in the best interests of the Company, where the Observer or one of its affiliates has a direct interest in the subject matter that is adverse to that of the Company; or (Bv) if the Observor is excluded from such meeting pursuant to item (d) above. Activant agrees, and any representative of Activant will agree, that an Observer has a potential conflict of interestall information provided to it or learned by it in connection with its rights under this Section 2.5 shall be held in confidence and trust and shall not disclose any such confidential information; provided, however, it being understood and agreed that any notwithstanding the foregoing, the Observer shall be permitted to disclose such exclusion shall apply only information to such portion Activant and their respective employees on an as-needed basis solely for the purpose 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which managing Activant’s investment in the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (1) During the Term, the Company shall:
(a) For so long as provide the Observer with notice, if any, of each meeting of the BCP Entities Board of Directors (telephonic or otherwise), in the same manner and at the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer same time as provided to the Board of Directors, including, without limitation, executive sessions;
(each, an “Observer”). The appointment and removal of any Observer shall be by written notice b) provide to the Board. Each Observer shall be copies of all materials provided to the Board of Directors, in the same manner and at the same time as provided to the Board of Directors;
(c) provide to the Observer drafts of all resolutions proposed for signature by the Board of Directors (in lieu of a natural person. Each meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board of Directors; and
(d) permit the Observer shall be entitled to be present at all meetings attend each meeting of the Board and of Directors (telephonic or otherwise), including, without limitation, any committee thereof meeting of the Board of Directors or executive sessions, as an observer, except with respect to materials or resolutions, or attendance at such portions of any such meeting, in which (A) the subject matter relates to a transaction, proceeding or matter in which the Investor or its Affiliates or investee entities (other than the Company) are or may be interested parties, and shall be notified where the participation in such portion of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed Observer or access to Confidential Information relating to the Directors for purposes Company would, upon the advice of such meetings at counsel, give rise to a conflict of interest between the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board Investor and the Sponsor Entity that designated such ObserverCompany, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken determined by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct Directors in its business and sole discretion, (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(iB) the Board concludes in good faithof Directors determines, upon the advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorneysolicitor-client privilege between privilege, or (C) the Board of Directors determines, upon the advice of counsel, that such exclusion is reasonably necessary for the Company or its subsidiaries to comply with any of their respective confidentiality obligations. Notwithstanding the foregoing, each of the following committees of the Board of Directors shall be entitled to exclude the Observer from attending any meeting, or portion thereof, of such committee in its discretion: the Audit Committee and its counselor the Nomination, Governance and Compensation Committee.
(2) The Company shall not be required to (i) pay any compensation to the Observer or (Bii) that an Observer has a potential conflict provide any indemnification, or maintain coverage under any policies of interestdirectors' and officers' insurance, in favour of the Observer; provided, however, that the Company shall reimburse any such exclusion shall apply only to such portion reasonable costs or expenses incurred by the Observer in connection with his or her attendance at meetings of the material or such portion Board of Directors, committee meetings of the meeting which would be required to preserve such privilege Board of Directors and not to any other portion thereof; orexecutive sessions.
(ii3) such portion of a The Observer shall not have the right to vote at any meeting is an executive session limited solely to independent director members of the BoardBoard of Directors or be counted towards determining whether there is quorum for such meeting, independent auditors and/or legal counsel, as but shall be entitled to participate in the discussions of the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedDirectors.
Appears in 1 contract
Observer Rights. (a) For so As long as each 5AM owns not less than 1,000,000 shares of Preferred Stock, the BCP Entities and the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard 5AM, which individual shall initially be Xxxxx Xxxx, to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a Competitor of the Company;
(b) As long as RAC owns not less than 1,000,000 shares of Preferred Stock, the Company shall invite a representative of RAC, which individual shall initially be Xxxxx Xxxxxxx, to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the material or such portion Company
(c) As long as PureTech owns not less than 1,000,000 shares of Series A-2 Preferred Stock, the Company shall invite a representative of PureTech, which individual shall initially be Xxxxxxx Xxxxxxxx to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such representative from any meeting which would be required or portion thereof if access to preserve such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and not to any other portion thereof; orits counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company;
(iid) such portion As long as JJDC owns not less than 1,000,000 shares of Series A-2 Preferred Stock, the Company shall invite a meeting is an executive session limited solely representative of JJDC, which individual shall initially be Xxxxxx Xxxxxxx, to independent director members attend all meetings of the BoardBoard of Directors in a nonvoting observer capacity and, independent auditors and/or legal counselin this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the Company
(e) As long as NIBR owns not less than 1,000,000 shares of Series A-2 Preferred Stock, the Company shall invite a representative of NIBR, which individual shall initially be Xxxxxx Xxxxxxx, to attend all meetings of the Board may designateof Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and an Observer (assuming other materials that it provides to its directors at the same time and in the same manner as provided to such Observer were directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a member fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a Competitor of the BoardCompany. Any person other than the persons initially specified in Subsections 3.3(a)-(e) would not meet that is invited to represent an Investor in a nonvoting observer capacity pursuant to this Section 3.3 shall be mutually agreeable to the then-applicable standards for independence adopted by appointing Investor and the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are Requisite Directors then tradedin office.
Appears in 1 contract
Observer Rights. (a) For Each of the Amerindo Group (as defined as set forth on Schedule 4 attached hereto), the MSD Group (as defined as set forth on Schedule 5 attached hereto) and Cisco shall be allowed by the Company to designate a representative (for so long as each such Investor continues to own respectively no less than 25% of the BCP Entities and the CPPIB Entities individually own four percent Series D Preferred Stock purchased by each such Investor pursuant to this Agreement (4%) or more of the issued and outstanding Class A Shares Common Stock into which such shares may be converted, in each case such number of shares appropriately adjusted for stock splits, stock dividends and Class B Shares (without regard similar recapitalizations)), to the voting power of such Class B Shares) attend and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of observe any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings meeting of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors, in the same manner as the directors a nonvoting capacity. The Company shall give each such Investor notice of each meeting of the Board (the “of Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); , provided, however, that a failure to comply with the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance requirements of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) this paragraph shall not have voting rights with respect to actions affect the validity of any meeting of directors, or any action taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01meeting.
(b) Notwithstanding the foregoingThe Company shall allow a representative designated by Axiom Venture Partners II, the Company may exclude an Observer from access Limited Partnership (for so long as such Investor continues to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice own no less than 40% of the Company’s outside legal counselSeries D Preferred Stock purchased by such Investor pursuant to this Agreement and Series C Preferred Stock purchased by each such Investor pursuant to the Preferred Stock Purchase Agreement, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between dated as of April 19, 1999, by and among the Company and its counselor the other parties thereto (the "Series C Purchase Agreement") (or (B) that an Observer has Class A Common Stock into which such shares of Series D Preferred Stock and Series C Preferred Stock may be converted, in each case such number of shares appropriately adjusted for stock splits, stock dividends and similar recapitalizations)), to attend and observe any meeting of the Board of Directors, in a potential conflict nonvoting capacity. The Company shall give such Investor notice of interest; each meeting of the Board of Directors, provided, however, that a failure to comply with the requirements of this paragraph shall not affect the validity of any meeting of directors, or any action taken at any such exclusion shall apply only meeting.
(c) With respect to each of CII/NEV LLC, and subject to the provisions of Section 24 hereof, Xxxxxxxxx X. Xxxxxxxxxx, for so long as each such portion Investor continues to own no less than 40% of the material aggregate number of shares of Series D Preferred Stock purchased by each such Investor pursuant to this Agreement (if applicable) and, if applicable, Series A Preferred Stock purchased by each such Investor pursuant to the Series A Purchase Agreement and the Amendatory Agreement (each as hereinafter defined) and Series C Preferred Stock purchased by each such Investor pursuant to the Series C Purchase Agreement (or Class A Common Stock into which such portion shares of Series D Preferred Stock, Series A Preferred Stock and Series C Preferred Stock may be converted, in each case such number of shares appropriately adjusted for stock splits, stock dividends and similar recapitalizations)), the Company shall invite each such Investor (or in the case of CII/NEV LLC, a representative designated by such Investor) to attend and observe two meetings of the meeting which would be required to preserve Board of Directors during each calendar year in a non-voting capacity. The Company shall give each 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 Investor notice of the Board, independent auditors and/or legal counsel, as meetings of the Board may designateof Directors to which such Investor is invited to attend, and an Observer (assuming such Observer were provided, however, that a member failure to comply with the requirements of this paragraph shall not affect the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)validity of any meeting of Directors, or any action taken at any such other exchange on which the Company’s securities are then tradedmeeting.
Appears in 1 contract
Observer Rights. Until MasTec, Inc., a Florida corporation (“MasTec”) ceases directly or indirectly through one or more of its Subsidiaries to beneficially own (as such term is defined for purposes of Section 13(d) under the Exchange Act) an amount of shares of Common Stock equal to at least 50.0% of the Conversion Shares issuable to the MasTec immediately following the Initial Closing or Debentures convertible in the aggregate into such amount:
(a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity MasTec shall have the right to designate from time to time and at any time one (1) non-voting observer to representative (the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board of Directors (and any committee thereof all committees thereof) of the Company (such board and committees, collectively, the “Board”) as a non-voting observer (it being understood that the failure to appoint an Observer shall not be notified deemed or claimed to be waiver of any such meeting by reasonable prior right).
(b) the Company shall (i) give the Observer notice, including such meeting’s time and place, in at the same manner time as furnished to the directors directors, of all meetings of the Board, (ii) provide to the Observer all notices, documents and information furnished to the members of the Board (the “Directors”) and shall receive copies whether at or in anticipation of all a meeting, an action by written materials distributed to the Directors for purposes of such meetings consents or otherwise, at the same time as the Directors (except furnished to the extent an Directors, (iii) notify the Observer has been excluded therefrom pursuant by telephone or email of, and permit the Observer to Section 3.01(b))attend in person, or by telephone or other electronic means, any and all meetings (including virtual and emergency meetings) of the Board, and (iv) provide the Observer copies of the minutes of all such meetings at the time such minutes are furnished to the Directors; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) Company shall not have voting rights with respect be obligated hereunder to actions taken or elected not provide information (i) that the Company reasonably determines in good faith to be taken a trade secret or confidential information (unless covered by the Board or be counted for purposes of determining whether there is an enforceable confidentiality agreement, in a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice form reasonably acceptable to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
; or (b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(iii) the Board concludes in good faith, upon advice disclosure of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve which would adversely affect the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interestcounsel; 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; orand
(iic) such portion the Observer will be reimbursed for his or her reasonable out of a meeting is an executive session limited solely to independent director members pocket expenses incurred in connection with the exercise of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), his or such other exchange on which the Company’s securities are then tradedher rights under this Section 7.6.
Appears in 1 contract
Samples: Securities Purchase Agreement (American Virtual Cloud Technologies, Inc.)
Observer Rights. (a) For so As long as each Xxxxxxx Xxxxx and its affiliates own not less than fifty percent (50%) of the BCP Entities and the CPPIB Entities individually own four percent shares of Series C Preferred Stock (4%or Common Stock or other securities issued or issuable upon conversion or exchange thereof) or more of the issued and outstanding Class A Shares and Class B Shares (without regard it originally purchased pursuant to the voting power Series C Agreement (such number to be proportionally adjusted for stock splits, stock dividends, and similar events), the Company shall invite a representative of such Class B SharesXxxxxxx Sachs to attend all meetings (whether in person, or telephonic or other) of its Board of Directors, and there is no Director who is all committees thereof, in a designee nonvoting observer capacity and, in this respect, shall, concurrently with the members of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive manner, give such representative copies of all written notices, minutes, consents and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observerall information so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by a majority of the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) acting in good faith shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend have the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if withholding such information or exclusion of attendance at such meeting, based on the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the Company’s attorney-client privilege between the Company and its counselor counsel. The Company agrees to reimburse such representative for its reasonable expenses incurred in connection with attending meetings of the Board of Directors.
(b) As long as Meritech Capital Partners II, L.P. (“Meritech”) and its affiliates own not less than fifty percent (50%) of the shares of Series D Preferred Stock (or Common Stock or other securities issued or issuable upon conversion or exchange thereof) it originally purchased pursuant to the Series D Agreement (Bsuch number to be proportionally adjusted for stock splits, stock dividends, and similar events), the Company shall invite a representative of Meritech to attend all meetings (whether in person, or telephonic or other) of its Board of Directors, and all committees thereof, in a nonvoting observer capacity and, in this respect, shall, concurrently with the members of the Board, and in the same manner, give such representative copies of all notices, minutes, consents and other materials that an Observer has a potential conflict of interestit provides to its directors; provided, however, that any such exclusion representative shall apply only agree to such portion hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and, provided further, that a majority of the material Board acting in good faith shall have the right to withhold any information and to exclude such representative from any meeting or portion thereof if withholding such portion information or exclusion of attendance at such meeting, based on the meeting which would be required advice of counsel, is necessary 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedattorney-client privilege between the Company and its counsel. The Company agrees to reimburse such representative for its reasonable expenses incurred in connection with attending meetings of the Board of Directors.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Riverbed Technology, Inc.)
Observer Rights. (a) For so long as each From the Effective Time until the termination of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardManagement Agreement in accordance with its terms, such Sponsor Entity Purchaser shall have the right to designate one (1) a non-voting observer to (the Board (each, an “Observer”) to attend each meeting of CHC’s Board of Trustees (and any committee thereof) held after the Effective Time, whether such meeting is conducted in person or by teleconference. The Observer shall have the right to present matters for consideration by CHC’s Board of Trustees (or any committee thereof) and to speak on matters presented by others at such meetings of CHC’s Board of Trustees (or any committee thereof). The appointment and removal of any Observer shall be by written notice Subject to the Board. Each confidentiality provisions of this Section 6.15 and any applicable related person, recusal or similar policy or practice of CHC, CHC shall cause the Observer shall be a natural person. Each Observer shall be entitled to be present at provided with all meetings communications and materials that are provided by CHC or its consultants to the members of the Board and of Trustees (or any committee thereof and shall be notified of any such meeting by reasonable prior noticethereof) generally, including such meeting’s at the same time and place, in the same manner that such communications and materials are provided to such members, including all notices, board packages, reports, presentations, minutes and consents. Promptly following the Effective Time, CHC shall add the Observer as an additional named insured under its directors and officers’ liability insurance policy and provide evidence thereof to Purchaser. Purchaser shall keep (and shall cause the directors Observer to keep) confidential any and all information obtained in connection with the exercise of the Board (the “Directors”) rights under this Section 6.15 and shall receive copies not disclose any such information (or use the same except for purposes reasonably related to Purchaser’s interest as a shareholder of all CHC) to unaffiliated third parties, except: (a) with the prior written materials distributed consent of CHC’s Board of Trustees; (b) to the Directors for purposes legal counsel, accountants and other professional advisors of such meetings at CHC or the same time Purchaser on a need to know basis; (c) to Governmental Authorities having jurisdiction over the Observer or Purchaser, CHC or any of their respective Subsidiaries; (d) as required by Law or legal process to which Purchaser, the Directors (except Observer or any Person to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))whom disclosure is permitted hereunder is a party; provided, however, that if Purchaser and/or the Observer is required to disclose such information pursuant to clause (c) or clause (d), Purchaser and/or the Observer shall have executed promptly notify CHC so that it may seek a non-disclosure protective order or other appropriate remedy; and confidentiality agreement and such further provided, that in the absence of a protective order or other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observerremedy, which for the avoidance of doubt, shall permit if Purchaser and/or the Observer is compelled to share information as provided in Section 5.04; provideddisclose such information, further, that such then Purchaser and/or the Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to disclose such portion of the material or such portion of information that Purchaser and/or the meeting which would be Observer is legally required to preserve disclose; or (e) to the extent such privilege and not to any other portion thereof; or
(ii) such portion information is otherwise publicly available through the actions of a meeting is an executive session limited solely Person other than Purchaser or the Observer not resulting from the violation by Purchaser or the Observer of this Section 6.15 or, to independent director members the Knowledge of Purchaser or the BoardObserver, independent auditors and/or a violation of a legal counsel, as or contractual obligation to CHC that would prohibit the Board may designate, and an Observer (assuming disclosure of such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinformation.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Centerline Holding Co)
Observer Rights. 1.1 Subject to the terms and conditions of this Agreement, the Company grants to PCM the option and right to appoint one (a1) For so long as each representative (the “Observer”) to attend all meetings (including telephonic or videoconference meetings of the BCP Entities Board in a non-voting, observer capacity; provided that any such representative shall have executed and delivered to the CPPIB Entities individually own four percent (4%) or more Company a copy of the issued Acknowledgement and outstanding Class Agreement to be Bound in the form attached hereto as Exhibit A Shares and Class B Shares (without regard the “Acknowledgement”). The Company shall have the right, in its reasonable discretion, to approve or reject any person who is to be appointed by PCM to serve as an Observer hereunder. Except as otherwise set forth herein, the Observer may participate fully in discussions of all matters brought to the voting power Board for consideration, but in no event shall the Observer (i) be deemed to be a member of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board; (ii) without limitation of the obligations expressly set forth in this Agreement or the Acknowledgement, such Sponsor Entity shall have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its shareholders; or (iii) have the right to designate one (1) non-voting observer propose or offer any motions or resolutions to the Board . Upon request, the Company shall allow the Observer to attend Board meetings by telephone or electronic communication. The presence of the Observer shall not be required for purposes of establishing a quorum.
1.2 The Company shall provide to the Observer copies of all notices, minutes, consents and other materials that it provides to Board members (eachcollectively, an “ObserverBoard Materials”). The appointment , including any draft versions, proposed written consents, and removal of any Observer shall be by written notice exhibits and annexes to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior noticematerials, including such meeting’s at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory information is delivered to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing members.
1.3 Notwithstanding anything herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoingcontrary, the Company may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the Bsquare Corporation Board Observer and Standstill Agreement attorney-client or work product privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interestcounsel; 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 Board Materials or discussion relates to independent director members of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedrelationship, contractual or otherwise, with PCM or its affiliates or any actual or potential transactions between or involving the Company and PCM; or (iii) such exclusion is necessary to avoid a conflict of interest or disclosure that is restricted by any agreement to which the Company is a party or otherwise bound.
Appears in 1 contract
Samples: Board Observer and Standstill Agreement (Bsquare Corp /Wa)
Observer Rights. (a) For so long as each of the BCP Entities MSCP IV may, at its election and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by upon written notice to the Board. Each Observer Company, appoint one nonvoting “observer”, who shall (i) be a natural person. Each Observer shall be entitled provided by the Company with all notices of meeting, consents, minutes and other written materials that are provided to be present at all meetings the Board of Directors of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings Company at the same time as such materials are provided to such Board of Directors and (ii) be entitled to attend all meetings of such Board of Directors. The Company shall reimburse MSCP IV (and any subadvisor thereof, including Metalmark) for all travel and lodging expenses in connection with attending any Board of Directors meeting of the Company on the same terms, and subject to the same policies, as shall apply to other directors of the Company. Anything herein to the contrary notwithstanding, neither the Company nor any of its subsidiaries shall be required to disclose any information to MSCP IV, any subadvisor of MSCP IV, or any “observer” appointed pursuant to this Section 2.2(a), or permit any such “observer” to attend any board of directors meeting pursuant to this Section 2.2(a), if, in the reasonable judgment of the Board of Directors, such disclosure or attendance would be inconsistent with the obligations of the Company or any subsidiary thereof under any applicable laws or regulations.
(b) First Plaza Group Trust and GM Capital Partners I, L.P. may appoint and the MSGEM Securityholders may appoint, at their election and upon written notice to the Company, one nonvoting “observer”, who shall (i) be provided by the Company with all notices of meeting, consents, minutes and other written materials that are provided to the Board of Directors of the Company at the same time as such materials are provided to such Board of Directors and (except ii) be entitled to attend all meetings of such Board of Directors. The Company shall reimburse each such Co-Investor and the MSGEM Securityholders for all travel and lodging expenses in connection with attending any Board of Directors meeting of the Company on the same terms, and subject to the same policies, as shall apply to other directors of the Company. Anything herein to the contrary notwithstanding, neither the Company nor any of its subsidiaries shall be required to disclose any information to any Co-Investor or MSGEM Securityholder or any “observer” appointed pursuant to this Section 2.3(b), or permit any such “observer” to attend any board of directors meeting pursuant to this Section 2.3(b), if, in the reasonable judgment of the Board of Directors, such disclosure or attendance would be inconsistent with the obligations of the Company or any subsidiary thereof under any antitrust or other laws or regulations regulating competition or the conduct of business.
(c) Unless the Company shall otherwise consent thereto in writing, each Securityholder entitled to appoint an “observer” agrees that it will, and will cause its “observer” to, keep all the Observer Material confidential; provided, however, that nothing in this Section 2.2(b) shall limit the ability of such Securityholder (or “observer”) to disclose any of such Observer Material (i) to its limited partners or members to the extent an required by its limited partnership or operating agreement, (ii) to its employees, agents, advisors or representatives who need to know such information with respect to any matters relating hereto, (iii) to the extent required to permit such Securityholder (or “observer”) to comply with any regulatory requirements of any governmental authority or (iv) as may be required in connection with the prosecution or defense by such Securityholder (or “observer”) of any claim, demand, action, suit or proceeding with respect to the Company or any matters related hereto. If any such Securityholder proposes to disclose any Observer has been excluded therefrom Material (other than periodic summary financial information about the Company) to any third party as contemplated by the proviso to the next preceding sentence, it shall give the Company at least five Business Days (or, if not legally possible, the maximum lesser amount of notice legally possible) prior written notice thereof specifying in reasonable detail the Observer Material to be disclosed, the identity of the parties to receive such Observer Material and the reasons for such disclosure. For purposes of this Agreement, “Observer Material” means all documents and information concerning the Company and its subsidiaries and their respective affairs provided to such Securityholder or any “observer” appointed by such Securityholder pursuant to this Section 3.01(b))2.2 in connection with any board of directors or committee meeting or consent in lieu thereof, or any information otherwise acquired by such Securityholder or such “observer” in connection therewith; provided, however, that the term “Observer shall have executed Material” does not include information that (i) is or becomes generally available to the public other than as a result of a disclosure by such Securityholder, or such “observer”, (ii) was within the possession of such Securityholder, or such “observer”, prior to its being furnished to such Securityholder, or such “observer”, by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by such Securityholder, or such “observer”, to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or (iii) becomes available to such Securityholder, or such “observer”, on a non-disclosure and confidential basis from a source other than the Company or any of its representatives, provided that such source is not known to such Securityholder, or such “observer”, to be bound by a confidentiality agreement and such with or other acknowledgments and agreements reasonably satisfactory contractual, legal or fiduciary obligation of confidentiality to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights Company or any other party with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01information.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Securityholder Agreement (EnerSys)
Observer Rights. (a) For so As long as each Longwood owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the BCP Entities and the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Longwood to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board (and any of each committee thereof of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer (i) such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights fiduciary manner with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business all information so provided; and (yii) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, if access to such information or attendance at such meeting could (A) that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and its counselor or counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement in a form reasonably acceptable to the Company, it being understood that an Observer has Section 3.5 of this Agreement shall be considered a potential form acceptable to the Company) or (C) result in a conflict of interest.
(b) As long as Bessemer owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of Bessemer to attend all meetings of the Board (and of each committee of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that any (i) such exclusion representative shall apply only agree to such portion of the material or such portion of the meeting which would be required hold in confidence and trust and to preserve such privilege act in a fiduciary manner with respect to all information so provided; and not to any other portion thereof; or
(ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a meeting is an executive session limited solely form reasonably acceptable to independent director members the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(c) As long as Novartis owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of Novartis to attend all meetings of the Board (and of each committee of the Board, independent auditors and/or legal if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(d) As long as 6 Dimensions owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of 6 Dimensions to attend all meetings of the Board may designate, (and an Observer (assuming such Observer were a member of each committee of the Board, if any) would not meet in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the thensame time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-applicable standards for independence adopted by client privilege between the New York Stock Exchange Company and its counsel (the “NYSE”), or such other exchange on which based upon advice from the Company’s securities are then tradedqualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(e) As long as NIBR owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of NIBR to attend all meetings of the Board (and of each committee of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(f) As long as Pitango owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of Pitango to attend all meetings of the Board (and of each committee of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(g) As long as AVM owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of AVM to attend all meetings of the Board (and of each committee of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney- client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
(h) As long as Xxxxx Bros. owns any shares of Preferred Stock (or Common Stock issued upon conversion thereof), the Company shall invite a representative of Xxxxx Bros. to attend all meetings of the Board (and of each committee of the Board, if any) in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that (i) 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 (ii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could (A) adversely affect the attorney-client privilege between the Company and its counsel (based upon advice from the Company’s qualified outside counsel), (B) result in disclosure of trade secrets (unless covered by an enforceable confidentiality agreement, in a form reasonably acceptable to the Company, it being understood that Section 3.5 of this Agreement shall be considered a form acceptable to the Company) or (C) result in a conflict of interest.
Appears in 1 contract
Samples: Investors’ Rights Agreement (TScan Therapeutics, Inc.)
Observer Rights. The Company shall permit each of Surveyor and LV (a) For each of the foregoing, an “Observer Investor”), so long as each Observer Investor continues to hold at least twenty-five percent (25%) of the BCP Entities shares (if any) of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock and Series E Preferred Stock it purchased pursuant to the CPPIB Entities individually own four percent (4%) or more Series B Purchase Agreement, Series C Purchase Agreement, Series D-1 Purchase Agreement, Series D-2 Purchase Agreement and Series E Purchase Agreement, respectively, to designate a designee to attend in person meetings of the issued Board of Directors (and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Sharesany committee thereof) and there is no Director who is in a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting voting, observer to the Board capacity (each, an “ObserverObserver Rights”). The appointment and removal As an observer, notice will be given to the designee of any Observer shall scheduled meeting of the Board of Directors (or any committee thereof) at the same time the members of the Board of Directors (or any committee thereof) are given notice, but no change of schedule will be by written notice to necessary if the Boarddesignee is unavailable. Each Observer shall be a natural person. Each Observer Such designee shall be entitled to be present at all meetings receive, prior to each meeting of the Board and of Directors (or any committee thereof thereof) and shall be notified of any such meeting by reasonable prior notice, including such meeting’s at the same time and place, in the same manner as the directors of the Company receive such materials, all materials sent to members of the Board of Directors (the “Directors”) and shall receive copies of all written materials distributed or any committee thereof), subject to the Directors for purposes terms of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) 3.10. Notwithstanding the foregoing, the Company may reserves the right to exclude an Observer such designee from access to a meeting of the Board of Directors (or any committee thereof), any portion thereof, or to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that Company believes such exclusion is reasonably necessary (a) to preserve protect the attorney-client privilege between the Company and its counselor or privilege, (Bb) that an Observer has to avoid a potential conflict of interest; provided, however, that any such exclusion shall apply only interest on the part of an Observer Investor or (c) to such portion preserve the proper functioning of the material Board or the exercise of its fiduciary duties. Each Observer Investor agrees, on behalf of itself and any of its representatives, including the designee, to hold in confidence and to not use (other than in connection with such portion Observer Investor’s evaluation of its investment in the meeting which would Company) or disclose any information provided to or learned by it in connection with its Observer Rights. This Section 3.10 may not be required to preserve such privilege and not amended or waived as to any other portion thereof; or
(ii) such portion Observer Investor without the written consent 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedInvestor.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Aura Biosciences, Inc.)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Each Qualified Member shall have the right to designate one (1) non-voting observer to the Board natural Person (each, an a “Board Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present attend (in person or telephonically, at all meetings such Person’s option) each meeting of the Board and the board of directors of each of the Company’s Significant Subsidiaries and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including board of directors; provided that such meeting’s Qualified Member will notify the Company from time and place, in the same manner as the directors to time of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes identity of such meetings at the same time as the Directors (except to the extent an Qualified Member’s Board Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such Board Observer’s address (including facsimile number) for notice and other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04communications; provided, further, that any Board Observer may be excluded from any such Observer (x) shall not have voting rights with respect meeting to actions taken or elected not to be taken by the extent that the Board or be counted for purposes of determining whether there is a sufficient quorum for the Sub Board to conduct its business and (yor such committee) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) the Board concludes determines in good faith, upon advice of the Company’s outside legal counsel, (A) faith that such exclusion is reasonably necessary required to preserve any evidentiary privilege or any portion of any such meeting during which the attorney-client privilege between respective interests of the Company and its counselor Subsidiaries and those of the Qualified Member in question, as to the matter(s) to be discussed or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only actions to be taken during such portion of such meeting, conflict (in the material good faith judgment of the Board or such portion Sub Board). The Company will send, or cause to be sent, to each Qualified Member the notice of the time and place of any such meeting which would be required in the same manner and at the same time as notice is sent 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 the members of the Board, independent auditors and/or legal counselsuch Sub Board or such committee, as the case may be. The Company shall also provide, or cause to be provided, to each Qualified Member copies of all notices, reports, minutes and other documents and materials at the same time and in the same manner as they are provided to the members of each the Board, such Sub Board may designateor such committee; provided that the failure to deliver or make available one or more of the items described in this sentence or the preceding sentence will have no impact on the validity of any action taken by the Board, such Sub Board or such committee. If the Company or any of its Significant Subsidiaries proposes to take any action by written consent in lieu of a meeting of its board of directors or any committee thereof, the Company or such Significant Subsidiary shall give a copy thereof to each Qualified Member within five (5) Business Days following the effective date of such consent; provided that the failure to deliver or make available one or more of the items described in this sentence will have no impact on the validity of any action taken by the Board, such Sub Board or committee. The Board shall meet at least four (4) times per calendar year. The Company shall reimburse, or cause one of its Subsidiaries to reimburse, each Board Observer for all reasonable, documented out-of-pocket costs incurred by him or her in connection with traveling to and an Observer (assuming from and attending such Observer were a member meetings of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), each such Sub Board or such other exchange on which the Company’s securities are then tradedany committees thereof.
Appears in 1 contract
Samples: Securities Purchase Agreement (Language Line Services Holdings, Inc.)
Observer Rights. 1.1 As of the Effectiveness Time, the Company grants to the Holder the option and right but not the obligation to have a single representative attend any and all meetings (including in-person, telephonic or videoconference meetings) of the Board and the Nominating and Corporate Governance Committee of the Board (the “Nomination Committee”) in a non- voting, observer capacity. In order to serve as such representative, an individual (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one must be (1) nonan individual listed on Schedule 1 (which shall contain the names of two individuals) or (2) in the event that no individual on Schedule 1 is able to so perform such function by virtue of incapacity, death or bona fide on-voting observer going material conflict or he or she ceases to be employed or affiliated with Holder, an individual employed or affiliated with Holder who is reasonably acceptable to the Company and (b) prior to serving as representative, shall have executed and delivered to the Company a copy of the Acknowledgement and Agreement to be Bound (the “Acknowledgement”) in the form attached hereto as Exhibit A (a representative of Holder qualifying to attend Board (each, meetings in accordance with the foregoing is an “Observer”). The appointment and removal In no event shall an Observer (i) be deemed to be a member of the Board; (ii) have or be deemed to have, or otherwise be subject to, any Observer shall be by written notice duties (fiduciary or otherwise) to the Company or its shareholders (aside from those set forth herein or in the Acknowledgement); or (iii) have the right to propose or offer any motions or resolutions to the Board. Each The presence of an Observer shall not be required for purposes of establishing a natural personquorum. Each Except for the Nomination Committee, an Observer shall not have the right to attend any meeting of a committee of the Board, but shall be entitled to be present at receive all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom Materials pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the 1.2. For avoidance of doubt, shall permit the Observer to share information either individual set forth in Schedule 1 (or any permitted replacement consistent with clause (a)(2)) may attend Board meetings (including Executive Sessions) as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01Agreement, provided that only one such individual may attend any Board meeting at any one time.
1.2 As of the Effectiveness Time, the Company will provide each Observer copies of all notices, minutes, readouts, consents and other materials that it provides to the Board, as the Board, and to any committee, as a committee, thereof, regardless of whether an Observer has the right to attend any meeting thereof, but subject to Section 1.3 below (bcollectively, “Board Materials”), including any draft versions, any written resolutions, and all exhibits and annexes to any such materials, at the same time and in the same manner as such information is delivered to the Board or committee; provided the manner of delivery of Board Materials by the Company may include access to such materials through a board portal (e.g., Diligent); provided further, that delivery obligations of the Company with respect to Board Materials distributed at or concurrent with a meeting to Board members generally shall be satisfied by delivery to any attending Observer; and, provided further, if any materials must be redacted under the terms of this Agreement, the Board shall use commercially reasonable efforts to complete such redactions prior to such meeting, and to the extent the Company is unable to deliver such materials prior to such meeting, the Company shall deliver such materials promptly thereafter delivery to the Board or committee after making any necessary redactions. Board materials shall include materials produced by any committee of the Board and shared with the Board generally. For the avoidance of doubt, any failure to (i) provide notice of any meetings of the Board or any committee thereof or (ii) provide Board Materials to an Observer, shall not invalidate any proceedings or actions taken by, or approvals of, the Board. The Company makes no express or implied warranty or representation concerning its Board Materials, Confidential Information or other information supplied to an Observer, including but not limited to the accuracy or completeness of such information. For the avoidance of doubt, an Observer may provide any and all Board Materials or other information regarding the Company to the Holder, including any Confidential Information, subject to the final sentence of Section 1.3 and Section 4 of this Agreement.
1.3 Notwithstanding anything herein to the foregoingcontrary, the Company may exclude an Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its subsidiaries and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
(ii) such portion Board Materials or discussion relates to the Company's or its subsidiaries' relationship, contractual or otherwise, with the Holder or its affiliates or any actual or potential transactions between or involving the Company or its subsidiaries and the Holder or its affiliates (including but not limited to the exercise or anticipated exercise of any shareholder rights by Holder or its affiliates); (iii) such exclusion is necessary to avoid a conflict of interest or disclosure that is restricted by any agreement to which the Company or any of its subsidiaries is a party or otherwise bound; or (iv) following a material breach by Holder of any of the terms of Section 4 of this Agreement. In addition, if an Observer (or Holder) has knowledge of a conflict of interest, or a potential conflict of interest, between the Holder or an Observer or their affiliates and the Company or its subsidiaries, Xxxxxx agrees that an Observer shall inform the Board prior to any Board discussion of such matter immediately upon becoming aware of such conflict or potential conflict, or, if Xxxxxx first becomes aware of any such conflict of interest or potential conflict of interest following Board discussion, promptly upon first becoming aware and shall refuse, or return, any Board Materials received concerning such conflict or potential conflict. For the avoidance of doubt, the Company shall not be required to inform Xxxxxx or an Observer of the time, place or agenda of a meeting is an executive session limited solely to independent director members the extent such exclusion is required to maintain attorney-client or work product privilege or is directly related to a conflict of interest between the Board, independent auditors and/or legal counsel, as Company or any subsidiary thereof and the Board may designateHolder or Observer, and an Observer (assuming the Company shall only withhold such Observer were a member material or information to the extent it relates to such attorney-client or work product privilege or conflict of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinterest.
Appears in 1 contract
Samples: Board Observer Agreement
Observer Rights. (a) For so long as each Xxxxxxx continues to own at least twenty-five percent (25%) of the BCP Entities and shares of Series C Preferred Stock then outstanding (but not during any time when Xxxxxxx has the CPPIB Entities individually own four percent (4%) or more ability to designate a majority of the issued directors on the Board of Directors), the Company shall invite a representative of Xxxxxxx (the "Representative"), which Representative shall be selected from time to time by Xxxxxxx and outstanding Class A Shares and Class B Shares (without regard reasonably acceptable to the voting power of such Class B Shares) Company, to attend and there is no Director who is a designee of such Sponsor Entity on the Boardparticipate in, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (eachin person or by conference call, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board of Directors and any committee thereof and (provided that the Company shall be notified entitled to exclude the Representative from a meeting of any committee of independent directors for the purpose of considering transactions involving Xxxxxxx or its affiliates (other than the Company and its Subsidiaries) and from any meeting of the Board or a committee if the Board or such meeting by reasonable prior noticecommittee determines that, including in light of the business to be transacted, the presence of the Representative would not be appropriate ) in a non-voting observer capacity and, in this respect, shall give such meeting’s Representative (at the same time and place, in the same manner as the directors given to members of the Board (of Directors or the “Directors”relevant committee) and shall receive copies of all written notices, minutes, consents and other Board of Directors' or committee members' materials distributed (with the exception of materials provided to members of any committee of independent directors with respect to any meeting for the Directors for purposes purpose of considering transactions involving Xxxxxxx or its affiliates (other than the Company and its Subsidiaries) and with the exception of materials which the Board or a committee thereof determines, in light of the content of such meetings at materials, is not appropriate to provide the same time Representative) that it provides to its directors or committee members (as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)appropriate); provided, however, that in no event shall the Observer shall have executed failure to provide the notice described above or to provide the Representative with the minutes, consents and other materials described above invalidate in any way any action taken at a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to meeting of the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken Directors or elected not to be taken by the Board or be counted for purposes any meeting of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01committee thereof.
(b) Notwithstanding Xxxxxxx and the foregoingCompany agree that knowledge of any matter or information discussed or presented for discussion at any of the Company's Board of Director's meetings, including any committees thereof, or any portion thereof at which the Representative is not present in person or by conference telephone will not be imputed to Xxxxxxx or its Representative to the extent that such matter or information is not expressly set forth in notices, minutes, consents and other written materials actually received by the Representative. Furthermore, Xxxxxxx and the Company agree that the Representative will be given sufficient time by the Chairperson of the Board of Directors or the relevant committee thereof to withdraw at the Representative's election from observation of or participation in any of the Company's Board of Directors' meetings, including any committees thereof, prior to the commencement of any discussion of material non-public information.
(c) In connection with attendance at any meeting of the Company's Board of Directors, including any committees thereof, the Company may exclude an Observer from access to shall reimburse Xxxxxxx for any material or meeting or portion thereof if:reasonable out-of-pocket expenses incurred by the Representative.
(id) The Company represents and warrants that it has secured all approvals and consents required to grant the Board concludes contractual rights contained in good faith, upon advice of this Section 8 to Xxxxxxx and the Representative.
(e) Xxxxxxx agrees that it will execute and deliver to the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary and cause each Representative to preserve the attorney-client privilege between execute and deliver to the Company and its counselor Xxxxxxx, an agreement, in form and substance reasonably satisfactory to the Company, pursuant to which Xxxxxxx or (B) that an Observer has a potential conflict of interest; 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 counselRepresentative, as the Board case may designatebe, and an Observer (assuming such Observer were agrees to hold confidential all information which Xxxxxxx or the Representative, as the case may be, learns as a member result of the Board) would not meet the then-applicable standards for independence adopted attendance by the New York Representative at the Board of Director and committee meetings in person or by conference telephone. [In addition to and not in limitation of any foregoing reference to the Working Capital Facility Documents, the terms and conditions of the Series C Preferred Stock Exchange (are subject to the “NYSE”), or such other exchange on which terms and conditions of the Company’s securities are then tradedWorking Capital Facility Documents.]
Appears in 1 contract
Observer Rights. (a) For so Subject to Section 4 of the Third Restated --------------- Voting Agreement of even date herewith, as long as each Xerox Corporation ("Xerox") owns not less than 455,000 shares of Series A Preferred Stock or Common Stock issued or issuable upon conversion thereof (as adjusted for any subsequent stock dividends, combinations, splits or recapitalizations), the BCP Entities and the CPPIB Entities individually Company shall invite Xerox to send at Xerox' own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate expense one (1) non-voting observer representative of Xerox reasonably acceptable to the Company's Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice Directors to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeattend, in the same manner as the directors a nonvoting observer capacity, each meeting of the its Board (the “of Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share all information as provided in Section 5.04connection with such meetings; providedand, provided further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that Company believes access to such exclusion is reasonably necessary to preserve information or attendance at such meeting or portion thereof could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has would result in disclosure of highly confidential proprietary information on matters where Xerox or its representative may be a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion competitor of the material Company. Xerox agrees, and any representative of Xerox will agree, to hold in confidence and trust and not use or disclose any confidential information provided to or learned by it in connection with its rights under this Section 2.5(a), and such portion obligations will survive any termination of this Section 2.5(a) or this Agreement. The rights (but not the obligations) of Xerox under this Section 2.5(a) shall not be assignable and shall terminate as to Xerox and be of no further force or effect upon the earlier to occur of:
(i) the date upon which the Company or a parent of the meeting Company consummates a sale of securities pursuant to a registration statement filed by the Company under the Act in connection with the firm commitment underwritten offering of its securities to the general public or the date upon which would be required the Company first becomes subject to preserve such privilege and not to any other portion thereofthe periodic reporting requirements of Section 12(g) or 15(d) of the 1934 Act, whichever event shall first occur; or
(ii) the date upon which the Company consummates (i) a consolidation or merger of the Company or any affiliated corporation with or into any other corporation or corporations (other than a consolidation or merger of this Company with or into a wholly owned subsidiary of this Company), (ii) a sale of all or substantially all of the assets or business of the Company in one or more related transactions, (iii) a transaction or series of related transactions (other than a public offering of the Company's securities) in which the stockholders of the Company immediately prior to such portion transaction(s) own, as a result of such transaction(s), less than a majority of the voting securities of the successor or surviving corporation, which shall not be the Company in the event of a meeting is an executive session limited solely to independent director members consolidation or merger, immediately thereafter, or (iv) a transaction or series of related transactions (other than a public offering of the Board, independent auditors and/or legal counsel, as Company's securities) in which the Board may designate, and an Observer (assuming such Observer were a member Company issues shares representing more than 50% of the Board) would not meet voting power of the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or Company immediately after giving effect to such other exchange on which the Company’s securities are then tradedtransaction.
Appears in 1 contract
Observer Rights. (a) For so long as each of In the BCP Entities event that Rogers and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall Shaw have the exercised --------------- their right to jointly designate one a nominee in accordance with Section 8.2(b) but such nominee is not elected as a Common Stock Director (1) non-voting observer an "ELECTION LOSS"), the Company will use its reasonable best efforts to permit such jointly designated nominee to attend, and participate in the Board (eachdiscussion at, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board in a non-voting observer capacity subject to the terms and conditions of this Section 8.3. In addition, so long as (i) the Ownership Condition is satisfied and (ii) both Rogers and Shaw hold the exclusive licenses referred to in Sections 2.1(A) and (B), as applicable, of the Term Sheet (or in accordance with any committee thereof analogous provisions with respect to distribution of the Wave@Home Service by Rogers and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, Shaw contained in the same manner as Canadian Distribution Agreement), then the directors Company will use its reasonable best efforts to permit one additional representative designated jointly by Rogers and Shaw to attend, and participate in the discussion in, all meetings of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory voting observer capacity subject to the Board terms and the Sponsor Entity that designated such Observerconditions of this Section 8.3. Such non- voting observer or observers (each, which for the avoidance of doubta "NON-VOTING OBSERVER") will, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend have the right to appoint an Observer participate fully in accordance all aspects of meetings of the Board and discussions among directors (other than the right to vote as a director), including without limitation the right to be provided with this Section 3.01.copies of all notices, minutes and other materials that the Company provides to its directors with respect to such meetings subject to the following terms and conditions:
(a) Rogers, Shaw and such Non-Voting Observer(s) shall hold in strict confidence all information and materials that any of them may receive or be given access to in connection with meetings of the Board and will act in a fiduciary manner with respect to all information so provided;
(b) Notwithstanding Such Non-Voting Observer(s) may be excluded from certain sessions of the foregoingBoard or certain portions of a Board meeting, or may not receive certain documents otherwise provided to the Board, if the presence of such Non- Voting Observer(s) or the delivery of such documents would, in the opinion of the Company's legal counsel, jeopardize the Company's attorney-client privilege; and
(c) Rogers, Shaw and such Non-Voting Observer(s) shall comply with all policies of the Company with respect to "xxxxxxx xxxxxxx" of the Company's securities that are applicable from time to time to the Company's directors and affiliates. In addition, the Company may exclude an Observer from access to any material agrees that, at such future time as the Company expands the authorized number of directors or meeting or portion thereof if:
(i) establishes the Board concludes in good faith, upon advice authorized number of directors as a number greater than the number of authorized directors as of the Company’s outside legal counseldate of the Closing, (Ain exercising its reasonable best efforts to cause to be determined the person to be nominated to fill any such vacancy or vacancies, the Company will take into consideration the experience of the Non- Voting Observer(s) that such exclusion is reasonably necessary to preserve the attorney-client privilege between concerning the Company and its counselor business, together with the other qualifications of such Non-Voting Observer(s) with the understanding that the decision to nominate any person to fill such vacancy or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion vacancies shall apply only to such portion of remain with the material or such portion of the meeting which would be required to preserve such privilege Company 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For so As long as each Data Collective II, L.P. ("Data Collective") owns not less than fifty percent (50%) of the BCP Entities and shares of Series Seed Preferred Stock originally purchased by it under the CPPIB Entities individually own four percent Seed Agreement (4%) or more an equivalent amount of Common Stock issued upon conversion thereof), the issued and outstanding Class A Shares and Class B Shares (without regard Company shall invite Xxxxxxx Xxxx to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board of Directors and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors committees of the Board (of Directors in a nonvoting observer capacity. In this respect, the “Directors”) and Company shall receive give Xx. Xxxx copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that Xx. Xxxx agrees to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided and to be bound by the Observer shall have executed a non-disclosure provisions of Subsection 3.5 of this Agreement; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer Xx. Xxxx from access to any material or meeting or portion thereof if:
(i) if access to such information or attendance at such meeting that the Board concludes in good faithcompany reasonably believes, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve would adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if Xx. Xxxx is a Competitor of the Company. For the avoidance of doubt, the Company shall not be obligated to provide observer rights under this Subsection 3.3 to any representative of Data Collective other than Xx. Xxxx.
(b) As long as Redpoint Omega II, L.P. ("Redpoint") owns not less than fifty percent (50%) of the shares of Series C Preferred Stock originally purchased by it under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one designee of Redpoint, who shall initially be Xxxxxx Xxxxx, to attend all meetings of the Board of Directors in a nonvoting observer capacity. In this respect, the Company shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that such designee agrees to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided and to be bound by the provisions of Subsection 3.5 of this Agreement; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only designee from any meeting or portion thereof if access to such portion information or attendance at such meeting that the company reasonably believes, upon advice of counsel, would adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets, or if such designee is a Competitor of the material or such portion Company.
(c) As long as Anchorage owns not less than fifty percent (50%) of the meeting which would shares of Series D Preferred Stock originally purchased by it under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one designee of Anchorage, who shall initially be required Xxxx Xxxxxx, 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 attend all meetings of the BoardBoard of Directors in a nonvoting observer capacity. In this respect, independent auditors and/or legal the Company shall give such designee copies of all notices, minutes, consents, and other materials that it provides to its directors; provided, however, that such designee agrees to hold in confidence and trust all information so provided and to be bound by the provisions of Subsection 3.5 of this Agreement; and provided further, that the Company reserves the right to withhold any information and to exclude such designee from any meeting or portion thereof if access to such information or attendance at such meeting that the Company reasonably believes, upon advice of counsel, as would adversely affect the Board may designate, attorney-client privilege between the Company and an Observer (assuming such Observer were a member its counsel or result in disclosure of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedtrade secrets.
Appears in 1 contract
Observer Rights. (a) For so long as each 13.1.1 The Borrower hereby grants to the Lender, the option and right, at any time and from time to time, provided that at such time there are Obligations outstanding and/or the Lender or any Eligible Assignee is the holder of Warrants or common shares arising from the exercise of the BCP Entities and Warrants, to appoint a representative (the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment ) to attend in a non-voting, observer capacity, meetings (including telephonic or videoconference meetings and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings held in executive session) of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors committees of the Board (the “DirectorsCommittees”). The Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration, but in no event shall the Observer (i) and be deemed to be a member of the Board or any Committee; (ii) without limitation of the obligations expressly set forth in this Article 13, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Borrower or its shareholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or Committees. Upon request, the Borrower shall receive allow the Observer to attend Board or Committee meetings by telephone, videoconference or other electronic communication.
13.1.2 The Borrower shall provide to the Observer copies of all notices, minutes, consents, reports and other materials that it provides to Board or Committee members, including any draft versions, proposed written materials distributed consents, and exhibits and annexes to the Directors for purposes of any such meetings materials, at the same time and in the same manner as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory information is delivered to the Board or Committee members, whether delivered in advance of, at or between meetings of the Board or Committee, as the case may be. Collectively, the information and materials referred to in this Section 13.1.2 are referred to as “Board Materials”. In the Sponsor Entity event that designated such there is no Observer present at any meetings of the Board or a Committee or the Lender has not appointed an Observer, which for the avoidance Borrower shall promptly and in any event within three Business Days of doubtany meetings of the Board or a Committee, provide the relevant Board Materials to the Lender.
13.1.3 The Observer shall permit be entitled to receive, concurrently with the Observer members of the Board (or a Committee thereof), notice of the intended date, time and agenda of any meeting of the Board (or a Committee thereof) and copies of any Board Materials to share information be considered at such meeting, but shall have no right to vote as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights a Director with respect to actions taken or elected not any matter. Notwithstanding anything herein to be taken by the contrary, the Board (or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the CompanyCommittee thereof), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b)in its reasonable discretion, such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting reasonably and in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorneysolicitor-client or litigation privilege between the Company Borrower and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, provided that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
(ii) such portion Board Materials or discussion relates directly to the Borrower’s relationship, contractual or otherwise, with the Lender or any actual or potential transactions between or involving the Borrower and the Lender; or (iii) such exclusion is necessary to avoid disclosure that is restricted by any agreement to which the Borrower is a party or otherwise bound prior to the date of this Agreement (provided that (i) the Borrower shall use commercially reasonable efforts to obtain consent to disclosure that is restricted by any such written agreement and (ii) with respect to any written agreement entered into after the Closing Date, the Corporation shall use commercially reasonable efforts to include terms that would allow the access contemplated by this Section 13.1.3).
13.1.4 The parties agree that neither the Borrower nor any member of the Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board or Committee meeting.
13.1.5 The Observer shall have the right to nominate a meeting is an executive session limited solely replacement Observer from time to independent director members time by delivery of written notice to the chairperson of the Board; provided, independent auditors and/or legal counsel, as that the Chairperson of the Board may designate, and an Observer must receive such replacement notice at least five (assuming such Observer were 5) days prior to a member meeting of the BoardBoard (or a Committee thereof) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or if any such other exchange on which the Company’s securities are then tradedreplacement Observer is to be entitled to observe such meeting.
Appears in 1 contract
Samples: Loan Agreement (Telesat Corp)
Observer Rights. (a) For so long as each WVJIT owns securities of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardCompany, such Sponsor Entity WVJIT shall have the right to designate one (1) non-voting observer designate, from time to the Board (eachtime in its sole discretion, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each , an Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings (including telephonic or videoconference meetings) of the Board in a non-voting, observer capacity. WVJIT hereby designates C. Xxxxxx Xxxxxx to serve as the Observer until his or her successor shall have been designated by WVJIT. The Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration, but in no event shall the Observer (i) be deemed to be a member of the Board; (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; (iii) have the right to propose or offer any motions or resolutions to the Board; or (iv) have the right to vote on any matter under consideration by the Board or otherwise have any power to cause the Company to take, or not to take, any action. The Company shall allow the Observer to attend Board meetings either in person or by telephone or electronic communication, as the Observer may elect in its sole discretion. The Observer’s presence shall not be required for purposes of establishing a quorum.
(b) The Company shall provide the Observer copies of all notices, minutes, consents and other materials that it provides to the members of the Board, except materials that relate to executive sessions of the Board (collectively, “Board Materials”), including any committee thereof draft versions, proposed written consents, and shall be notified of exhibits and annexes to any such meeting by reasonable prior noticematerials, including such meeting’s at the same time and place, in the same manner as the directors of such information is delivered to the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (members, except to the extent an the Observer has been excluded therefrom pursuant to clause (c) below. The Board Materials for any regular quarterly meeting provided for pursuant to subsection (e) of this Section 3.01(b)); provided1 shall include quarterly financial statements (which may be unaudited) or, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to the December 31 quarter, annual financial statements (which may be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Companyunaudited), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(bc) Notwithstanding anything herein to the foregoingcontrary, the Company may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its affiliates and its counselor or (B) that an Observer has a potential conflict of interestcounsel; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege; or
or (ii) such Board Materials or discussion relates to an existing or potential conflict of interest between the Company or any of its affiliates and affiliates of WVJIT; or (iii) 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 personnel matters.
(d) The Company shall hold no less than one regularly scheduled Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedmeeting each quarter.
Appears in 1 contract
Samples: Class B Common Stock Purchase Agreement (Gatc Health Corp)
Observer Rights. (a) For so As long as each SOFTBANK Asia Infrastructure Fund, L.P. (“Softbank”) owns not less than 1,500,000 shares of Registrable Securities, as adjusted for any stock splits, stock dividends, recapitalizations or the BCP Entities and like (or an equivalent amount of Common Stock issued upon conversion thereof), the CPPIB Entities individually own four percent (4%) or more Company shall invite one representative of the issued and outstanding Class A Shares and Class B Shares (without regard Softbank to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observerall information so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counselor counsel, if such Investor or its representative is a direct competitor of the Company; provided further, that the Company shall not be obligated to pay any of the fees, costs, or expenses accrued by Softbank’s representative in connection with attending or preparing for any meeting of the Company’s Board of Directors.
(Bb) As long as Xxxxxx Capital Private Equity Fund II, L.P. (“Xxxxxx”) owns not less than 1,500,000 shares of Registrable Securities, as adjusted for any stock splits, stock dividends, recapitalizations or the like (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite one representative of Xxxxxx to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that an Observer has a potential conflict of interestit 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counsel, if such Investor or its representative is a direct competitor of the material or such portion Company; provided further, that the Company shall not be obligated to pay any 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 Boardfees, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”)costs, or such other exchange on which expenses accrued by Xxxxxx’x representative in connection with attending or preparing for any meeting of the Company’s securities are then tradedBoard of Directors.
Appears in 1 contract
Observer Rights. (a) For so long as each Throughout the term of this Agreement, the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Investor shall have the right to designate one (1) non-voting observer appoint a person to the Board (each, an “Observer”). The appointment attend and removal observe all meetings of any Observer shall be by written notice to the Board, other than during any period of time that a nominee determined by the Investor is a director of the Company. Each Observer shall be a natural person. Each During the applicable times, the Observer shall be entitled to be present at attend all meetings of the Board in a non-voting, observer capacity in accordance with the terms and conditions as set out herein.
(b) The Company shall use reasonable efforts to deliver to the Observer copies of all notices, minutes, consents and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in other material that the same manner as Company provides to the directors members of the Board (including annual budgets, audit reports and other reports or packages that are provided to the “Directors”members of the Board) and contemporaneously with the delivery of such material to the members of the Board, unless the Company determines, in its sole discretion, that the delivery of such materials to the Observer would be prejudicial to the interests of the Company. Notwithstanding the foregoing, in no event shall receive the failure to provide the Observer with copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); providednotices, howeverminutes, that the Observer shall have executed a non-disclosure consents and confidentiality agreement and such any other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided material indicated herein in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be any way invalidate any action taken by the Board.
(c) All Board or meetings shall be counted for purposes duly constituted notwithstanding the absence of determining whether there is a sufficient quorum for the Observer. No Board to conduct its business and (y) meeting shall be subject to all rules governing delay and the Company shall not be in breach of its obligations hereunder provided that the Company has made reasonable efforts to provide notice of a Board meeting, as applicable, to the Observer on the same terms as provided to the directors who are members of the Board, as applicable.
(d) The Company acknowledges and agrees that the Observer may disclose the Information obtained by him in his capacity as an observer to the Board and nothing herein shall prevent the Board from acting by written instrument to the extent Investor and his or her representatives, in all cases who need to know such Information, who shall be informed by the Observer and/or the Investor, as applicable, of the confidential nature of such Information and who shall be required to treat the Information as confidential. The Investor agrees to be responsible for any breach of this Agreement by any of its representatives.
(e) Except as may be permitted by applicable law; providedpursuant to this Agreement, furthereach of the Observer and the Investor will not, and the Investor will direct its representatives not to, disclose to any other person that if at Information has been made available to it, including the existence of this Agreement. Each of the Observer and the Investor will keep strictly confidential the Information and will not, without the prior written consent of the Company or otherwise as permitted hereunder, disclose Information in any time manner whatsoever, in whole or in part.
(upon written notice f) The Investor shall make and shall ensure that the Observer makes all reasonable, necessary or appropriate efforts to safeguard the Information from disclosure to anyone other than as permitted hereby.
(g) The Investor shall, and shall take all reasonable steps to ensure that the Observer does, not use the Information, or permit the Information to be accessed or used, for any purpose other than monitoring the Investor’s investment in the Company or otherwise in any manner where it would be reasonably foreseeable that such use or access of the Information would be to the Company), a Sponsor Entity elects to suspend ’s detriment.
(h) In that event and upon the receipt request of the information provided Company, the Investor will and will ensure that the Observer either promptly re-delivers to the Company or destroys all Information furnished by the Company under Section 5.04(b)or its Affiliates or its representatives to the Observer and/or the Investor or the Investor’s representatives, such Sponsor Entity may also elect and all other documents prepared by the Observer and/or the Investor or the Investor’s representatives which incorporate or are based on any Information, without retaining copies thereof. Notwithstanding the foregoing, the Observer and/or the Investor or the Investor’s representatives shall re- deliver and shall not destroy any original documents provided to suspend by the right to appoint an Observer in accordance with this Section 3.01Company.
(bi) Notwithstanding the foregoing, the Company may exclude an obligations imposed on each of the Observer from access and Investor hereunder shall not apply to any material or meeting or portion thereof if:
Information: (i) which is or becomes generally available to the Board concludes public other than as a result of a disclosure by the Observer, the Investor or the Investor’s representatives in breach of this Agreement; (ii) which becomes available to the Observer or the Investor on a non-confidential basis from a source other than the Company or its representatives, provided that the Observer or the Investor does not believe, after a good faithfaith inquiry, upon advice that such source is bound by a confidentiality agreement with the Company or its representatives or is otherwise prohibited from transmitting the Information to the Observer or the Investor by a contractual, legal or fiduciary obligation; (iii) which was known to the Observer or the Investor on a non- confidential basis prior to disclosure to either of them by the Company or its representatives, provided that such Information is not known by the Investor and/or Observer to be subject to another confidentiality agreement with or other obligation of secrecy of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or another party; or (Biv) that an Observer has a potential conflict disclosure of interest; which is required by law, rule, regulation, subpoena or similar court process, provided, however, that any such exclusion shall apply only (A) prior to such disclosure, the Observer, the Investor or the Investor’s representatives provide the Company, to the extent permitted by law, with prompt written notice so that the Company may seek a protective order or appropriate remedy (at the Company’s expense); (B) the Observer, the Investor or the Investor’s representatives shall reasonably cooperate with the Company so that the Company may obtain such protective order; and (C) in the event that a protective order or other remedy is not obtained, the Observer, the Investor and the Investor’s representatives will furnish only the portion of the material Information that is legally required to be disclosed.
(j) The Observer and the Observer’s representatives shall be indemnified and held harmless by the Corporation against all costs, charges and expenses, including an amount paid to settle an action or such portion satisfy a judgment, reasonably incurred by the Observer in respect of any civil, criminal, administrative, investigative or other proceeding in which the Observer and/or his or her representatives are involved because of the meeting association with the Company or other entity, provided the matter did not arise from any fraud, wilful misconduct or negligence, or any breach of the provisions of this Agreement or any other agreement among or between the Company and the Investor committed by the Observer or the Observer’s representatives.
(k) The Company shall be indemnified and held harmless by the Investor against all costs, charges and expenses, including an amount paid to settle an action or satisfy a judgment, reasonably incurred by the Company in respect of any breach of this Agreement by the Observer, the Investor or any of their representatives.
(l) The Observer shall comply in all respects with the obligations imposed upon a director of the Company by Sections 147 to 153 of the BCBCA with respect to any interest that he has in any material contract or material transaction with the Company, whether made or proposed, and shall provide prompt and full disclosure thereof in writing to both the Board and the Company.
(m) If the Observer reasonably believes that a matter being considered or to be considered by the Board may relate to a transaction, proceeding or other matter in which would the Investors or their Affiliates or investee entities are or may be interested parties, the Observer shall provide prompt and full disclosure thereof in writing to both the Board and the Company. The Observer and Investor acknowledge that they are aware, and the Investor will advise its representatives who receive undisclosed material information regarding the Company, that securities laws prohibit any person who has non-public material information from purchasing or selling Common Shares or other securities of the Company from or to any uninformed third party or from communicating such information to any uninformed third party under circumstances in which it is reasonably foreseeable that such person is likely to purchase or sell the Common Shares or other securities.
(n) The Observer shall comply with all trading restrictions or black-out periods imposed by the Board or pursuant to Company policies.
(o) The Company will reimburse the Observer, for any reasonable expenses, including travel expenses related to attendance at Board meetings, related to his or her role as Observer. The Company shall not be required to preserve such privilege and not (i) pay any fees to any other portion thereof; or
the Observer in connection with the Observer’s role as Observer, in connection with or (ii) such portion of a meeting is an executive session limited solely to independent director members reimburse any costs or expenses incurred by the Observer in connection with his or her attendance at meetings of the Board, independent auditors and/or legal counsel, Board or otherwise.
(p) The Company will ensure that its directors and officers’ insurance policies are extended to cover the Observer in his or her role as Observer and that the Board may designate, coverage is as broad and an Observer (assuming such Observer were a member at the same limits as those of the Board) would not meet current directors and officers. The Investor shall have the then-applicable standards for independence adopted by right to replace the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedObserver at any time with a new observer having substantially similar rights and obligations as set out in this Agreement.
Appears in 1 contract
Samples: Observer Rights Agreement
Observer Rights. (a) For so long as 1.1 The Company grants, and shall cause each of its Subsidiaries to grant, to the BCP Entities Investor the option and right to appoint a representative (the CPPIB Entities individually own four percent “Observer”) to attend all meetings (4%including telephonic or videoconference meetings and meetings held in executive session) of all Board and Committees in a non-voting, observer capacity. The Observer may participate fully in discussions of all matters brought to any Board or more of Committee, as the issued and outstanding Class A Shares and Class B Shares case may be, for consideration (without regard any authority of a member thereof), but in no event shall the Observer (i) be deemed to be a member of any Board or Committee; (ii) except for (and without limitation of) the obligations expressly set forth in this Agreement, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the voting power of such Class B SharesCompany, the Subsidiaries or their stockholders or other equity holders or owners; or (iii) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) nonpropose or offer any motions or resolutions to any Board or Committee. The Company shall allow, and shall cause its Subsidiaries to allow, the Observer to attend any Board or Committee meetings in-voting observer person or by telephone or electronic communication at the election of the Observer, at his or her sole option. The presence of the Observer shall not be taken into account or required for purposes of establishing a quorum.
1.2 The Company shall provide, and shall cause its Subsidiaries to provide, to the Observer copies of all notices, minutes, consents, and other materials that it provides to members of any Board (eachcollectively, an “ObserverBoard Materials”). The appointment , including any draft versions, proposed written consents, and removal of any Observer shall be by written notice exhibits and annexes to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior noticematerials, including such meeting’s at the same time and place, in the same manner as the directors of the such information is delivered to such Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))members; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights connection with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company shall, and shall cause its Subsidiaries to, provide the Observer with any and all Board Materials at least 48 hours in advance of any meeting or action by written consent.
1.3 Notwithstanding anything herein to the contrary, the Company and its Subsidiaries may exclude an the Observer from access to any material or meeting Board Materials, meeting, or portion thereof if:
if the applicable Board concludes, acting in good faith (and, in the case of clause (i) the Board concludes in good faith), upon the written advice of the Company’s or its Subsidiary’s outside legal counsel, as applicable), that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or such Subsidiary and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
or (ii) such exclusion is necessary to avoid a conflict of interest or disclosure of a trade secret (provided, however, that any such exclusion shall only apply to such portion of a such material or meeting is an executive session limited solely which would be required to independent director members avoid such conflict of interest or disclosure of such trade secret).
1.4 The parties agree that neither the Board, independent auditors and/or legal counsel, as Company nor its Subsidiaries nor any member of any Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board may designateor Committee meeting.
1.5 The Company will, and an will cause its Subsidiaries to, cause each Board to meet telephonically or in-person not less often than once per fiscal quarter and in-person not less often than once per fiscal year.
1.6 Any other provision of this Agreement notwithstanding, the Observer (assuming such Observer were shall have no duties, except as expressly provided herein; shall not be considered a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), any Board or such other exchange on which the Company’s securities are then tradedCommittee – de facto or otherwise; and shall have no authority with respect to any process of any Board or Committee.
Appears in 1 contract
Samples: Board Observer Agreement (Digerati Technologies, Inc.)
Observer Rights. (a) For so As long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate Lxx owns at least one (1) non-voting observer Share of Common Stock, the Company shall invite a representative of Lxx, who shall initially be Rxxxxxx X. Xxxxxxx, to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree in writing to hold in confidence and trust and to act in a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory fiduciary manner with respect to the Board and the Sponsor Entity that designated such Observerall information so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Stockholder or its representative is a competitor of the Company.
(b) As long as HC2 owns at least one (1) Share of Common Stock, the Company shall invite a representative of HC2, who shall initially be AX Xxxxx, to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree in writing to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and, provided, further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Stockholder or its representative is a competitor of the material or such portion Company.
(c) As long as PF owns at least one (1) Share of Common Stock, the Company shall invite a representative of PF, who shall initially be Bxxx Xxxxxxxxxx, to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree in writing to hold in confidence and trust and to act in a fiduciary manner with respect to all information so provided; and, provided, further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting which would be required or portion thereof if access to preserve such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and not to any other portion thereof; orits counsel or result in disclosure of trade secrets or a conflict of interest, or if such Stockholder or its representative is a competitor of the Company.
(iid) such portion As long as GN owns at least one (1) Share of Common Stock, the Company shall invite a meeting is an executive session limited solely representative of GN, who shall initially be Sxxxx Xxxxxx, to independent director members attend all meetings of the BoardBoard in a nonvoting observer capacity and, independent auditors and/or legal counselin this respect, as the Board may designateshall give such representative copies of all notices, minutes, consents, and an Observer (assuming other materials that it provides to its directors at the same time and in the same manner as provided to such Observer were directors; provided, however, that such representative shall agree in writing to hold in confidence and trust and to act in a member fiduciary manner with respect to all information so provided; and, provided, further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Stockholder or its representative is a competitor of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For so As long as each Perceptive Life Sciences Master Fund Ltd (“Perceptive”) owns not less than fifty percent (50%) of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the Series B Preferred Stock it holds as of the date hereof (or an equivalent amount of Common Stock issued and outstanding Class A Shares and Class B Shares (without regard upon conversion thereof), the Company shall invite a representative of Perceptive to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors in a nonvoting observer capacity, who shall initially be Xxxxxx Xxxxxxxxx-Xxxxxxxx and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a competitor of the Company.
(b) As long as RA Capital Healthcare Fund, L.P. (“RA Capital”) owns not less than fifty percent (50%) of the shares of the Series B Preferred Stock it holds as of the date hereof (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of RA Capital to attend all meetings of its Board of Directors in a nonvoting observer capacity, who shall initially be Xxxx Xxxxxxx, and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Investor Rights Agreement (Lyra Therapeutics, Inc.)
Observer Rights. (a) For so long as each AstraZeneca is a Major Investor, the Company shall invite a representative of AstraZeneca to attend all meetings of the BCP Entities Board of Directors and the CPPIB Entities individually own four percent (4%) any clinical, scientific or more other similar advisory board of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board Company (each, an “ObserverAdvisory Board”). The appointment , in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and removal of any Observer shall be by written notice other materials that it provides to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings members of the Board and any committee thereof and shall be notified of any or such meeting by reasonable prior noticeAdvisory Board, including such meeting’s as the case may be, at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))members; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) the Board concludes Company shall not be obligated pursuant to this Subsection 3.3(a) to provide access to any information that the disclosure of which would, in the good faith, upon advice faith determination of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve adversely affect the attorney-client privilege between the Company and its counselor counsel, and (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to AstraZeneca’s confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof. The Company agrees to reimburse the reasonable travel expenses incurred by such representative to attend such meetings or any other activities which are requested by the Board of Directors.
(Bb) For so long as Temasek is a Major Investor, the Company shall invite a representative of Temasek to attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that an Observer has a potential conflict it provides to the members of interestthe Board or such Advisory Board, as the case may be, at the same time and in the same manner as provided to such members; 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 (i) the Company shall not be obligated pursuant to this Subsection 3.3(b) to provide access to any such exclusion shall apply only to such portion information that the disclosure of which would, in the good faith determination of the material or such portion of Company, adversely affect the meeting which would be required to preserve such attorney-client privilege between the Company and not to any other portion thereof; or
its counsel, (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to Temasek’s confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof, and (iii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if Temasek or its representative is a Competitor. The Company agrees to reimburse the reasonable travel expenses incurred by such representative to attend such meetings or any other activities which are requested by the Board of Directors.
(c) For so long as Sirona is a meeting is an executive session limited solely Major Investor, the Company shall invite a representative of Sirona to independent director attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to the members of the Board or such Advisory Board, independent auditors and/or legal counsel, as the Board case may designatebe, at the same time and in the same manner as provided to such members; 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 (i) the Company shall not be obligated pursuant to this Subsection 3.3(c) to provide access to any information that the disclosure of which would, in the good faith determination of the Company, adversely affect the attorney-client privilege between the Company and its counsel, (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to Sirona’s confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof, and an Observer (assuming iii) the Company reserves the right to withhold any information and to exclude such Observer were representative from any meeting or portion thereof if Sirona or its representative is a Competitor. The Company agrees to reimburse the reasonable travel expenses incurred by such representative to attend such meetings or any other activities which are requested by the Board of Directors.
(d) If at any time Boyu is no longer entitled to designate a person to be elected to the Board of Directors pursuant to Section 1.2(b) of the Voting Agreement and neither of the Boyu Designees (as defined in the Voting Agreement) are serving as members of the Board of Directors, then for so long as Boyu is a Major Investor, the Company shall invite a representative of Boyu to attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to the members of the Board or such Advisory Board, as the case may be, at the same time and in the same manner as provided to such members; 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; provided further, that (i) the Company shall not be obligated pursuant to this Subsection 3.3(d) to provide access to any information that the disclosure of which would, in the good faith determination of the Company, adversely affect the attorney-client privilege between the Company and its counsel and (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to Boyu’s confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof; and provided further, that the Company shall not have any obligation to reimburse the travel or any other expenses incurred by such representative to attend such meetings or any other activities which are requested by the Board of Directors.
(e) If at any time 6D is no longer entitled to designate a person to be elected to the Board of Directors pursuant to Section 1.2(c) of the Voting Agreement and the 6D Designee (as defined in the Voting Agreement) is not serving as a member of the Board of Directors, then for so long as 6D is a Major Investor, the Company shall invite a representative of 6D to attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to the members of the Board or such Advisory Board, as the case may be, at the same time and in the same manner as provided to such members; 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; provided further, that (i) would the Company shall not meet be obligated pursuant to this Subsection 3.3(e) to provide access to any information that the thendisclosure of which would, in the good faith determination of the Company, adversely affect the attorney-applicable standards for independence adopted client privilege between the Company and its counsel and (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to 6D’s confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof; and provided further, that the Company shall not have any obligation to reimburse the travel or any other expenses incurred by such representative to attend such meetings or any other activities which are requested by the New York Stock Exchange Board of Directors.
(f) If at any time Xxxxxxxxx is no longer entitled to designate a person to be elected to the “NYSE”)Board of Directors pursuant to Section 1.2(d) of the Voting Agreement and the Xxxxxxxxx Designee (as defined in the Voting Agreement) is not serving as a member of the Board of Directors, then for so long as Xxxxxxxxx is a Major Investor, the Company shall invite a representative of Xxxxxxxxx to attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to the members of the Board or such other exchange on Advisory Board, as the case may be, at the same time and in the same manner as provided to such members; 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; provided further, that (i) the Company shall not be obligated pursuant to this Subsection 3.3(f) to provide access to any information that the disclosure of which would, in the good faith determination of the Company, adversely affect the attorney-client privilege between the Company and its counsel and (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to Xxxxxxxxx’x confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof; and provided further, that the Company shall not have any obligation to reimburse the travel or any other expenses incurred by such representative to attend such meetings or any other activities which are requested by the Board of Directors.
(g) For so long as HBM is a Major Investor, the Company shall invite a representative of HBM to attend all meetings of the Board of Directors and any Advisory Board, in each case, in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to the members of the Board or such Advisory Board, as the case may be, at the same time and in the same manner as provided to such members; 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 (i) the Company shall not be obligated pursuant to this Subsection 3.3(g) to provide access to any information that the disclosure of which would, in the good faith determination of the Company, adversely affect the attorney-client privilege between the Company and its counsel, (ii) any such information that the Company reasonably and in good faith considers to be a trade secret shall be subject to HBM’s securities confidentiality obligations pursuant to Subsection 3.5 without regard to the exception described in clause (ii) thereof, and (iii) the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if HBM or its representative is a Competitor. The Company agrees to reimburse the reasonable travel expenses incurred by such representative to attend such meetings or any other activities which are then tradedrequested by the Board of Directors.
Appears in 1 contract
Observer Rights. (a) For so long as each If Xxxx Ventures, Inc. or a representative of --------------- Xxxx Ventures, Inc. is not a member of the BCP Entities and Company's Board of Directors for whatever reason, the CPPIB Entities individually own four percent (4%) or more Company shall invite, at Xxxx Ventures, Inc.'s expense, a representative of the issued and outstanding Class A Shares and Class B Shares (without regard Xxxx Ventures, Inc., who shall be reasonably acceptable to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardCompany, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to its directors. If Xxxxxxxx Partners, L.P. or Xxxxxxxx Foreign Partners, L.P. (collectively, "Xxxxxxxx") or a representative of Xxxxxxxx is not a member of the Company's Board of Directors for whatever reason, the Company shall invite, at Xxxxxxxx'x, expense, a representative of Xxxxxxxx, who shall be reasonably acceptable to the Company, to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors. If EnerTech Capital Partners, L.P. or a representative of EnerTech Capital Partners, L.P. is not a member of the Company's Board of Directors for purposes whatever reason, the Company shall invite, at EnerTech Capital Partners, L.P.'s expense, a representative of such meetings at the same time as the Directors (except EnerTech Capital Partners, L.P., who shall be reasonably acceptable to the extent an Observer has been excluded therefrom pursuant Company, to Section 3.01(b)); providedattend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors. Provided, however, that the Observer any such representative invited pursuant to this Section 1.1(p) shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information provided pursuant to this Section 1.1(p); and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For so As long as each Integral Capital Partners and its affiliated funds (i) own in the aggregate not less than 1,216,543 of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the Preferred Stock it has purchased as of the date hereof (or an equivalent amount of Common Stock issued upon conversion thereof), and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Sharesii) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right are not entitled to designate one a number of the Company’s Board of Directors pursuant to that certain Second Amended and Restated Voting Agreement dated as of the date hereof by and among the Company and certain of its stockholders, as the same may be amended and restated from time to time (1) non-voting observer to the Board (each, an “ObserverVoting Agreement”). The appointment and removal , the Company shall invite a representative of any Observer shall be by written notice Integral Capital Partners to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as provided to such directors. As long as TCEE and its affiliated funds (i) own in the directors aggregate not less than 2,161,379 shares of the Preferred Stock it has purchased as of the date hereof (or an equivalent amount of Common Stock issued upon conversion thereof), and (ii) are not entitled to designate a member of the Company’s Board (of Directors pursuant to the “Directors”) and Voting Agreement, the Company shall receive invite a representative of TCEE to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings its directors at the same time as and in the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information same manner as provided to such directors. Each of the foregoing representatives shall hold in Section 5.04; provided, further, that such Observer (x) shall not have voting rights confidence and trust and to act in a fiduciary manner with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by pursuant this Section 3.3, and, the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representatives from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has to protect information the Company reasonably deems in good faith to be a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion of the material trade secret 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedsimilar confidential information.
Appears in 1 contract
Observer Rights. (a) For so long as each the SMH Noteholder, together with its Affiliates, continues to hold through funds or accounts it advises or manages at least $15,000,000 in principal amount of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardNew PIK Notes, such Sponsor Entity SMH Noteholder shall have the right be entitled to designate one (1) non-voting observer to the Board who is a natural person (each, an “Observer”). The appointment and removal of any Observer shall be by written notice have the right to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee all Committees thereof and shall be notified of any such meeting by reasonable prior noticethe right to receive, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except Managers copies of all notices, documents and information pertaining to any such meetings provided to the Managers, but only when and to the same extent an Observer has been excluded therefrom pursuant such documents and information are delivered to Section 3.01(b))all Managers in their capacities as such; provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to may be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board excluded from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
and/or may be precluded from receiving Board or information if the Board in good faith reasonably believes, based on the advice of counsel, that such exclusion or preclusion is (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; providedcounsel, 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) reasonably necessary to avoid a conflict of interest with the Company or any of its Subsidiaries, on the one hand, and SMH Noteholder and any of its Affiliates, on the other hand, due to matters for which the Company and/or such portion Subsidiaries, on the one hand, and SMH Noteholder and/or any of its Affiliates, on the other hand, are directly adverse or (iii) required by applicable laws (including national security laws) so long as, in each case, the Board notifies SMH Noteholder, of such determination and, if requested by SMH Noteholder, provides the Observer a general description of the information discussed at such meeting (to the extent that providing such description does not jeopardize the attorney-client privilege to be preserved or result in the breach of any applicable laws or conflicts to be avoided) (it being understood and agreed that the Company will take, and cause its Subsidiaries to take, reasonable steps to minimize any such exclusions, to the extent practicable). The Observer shall, prior to attending any meetings or receiving any information, execute and deliver a reasonable stand-alone confidentiality agreement in a customary form. Notwithstanding anything to the contrary herein, the Observer shall be automatically removed and all rights of the Observer hereunder shall terminate upon consummation of a redemption in full of the PIK Notes or if SMH Noteholder ceases to hold through funds or accounts it advises or manages at least Fifteen Million Dollars ($15,000,000) in principal amount of the New PIK Notes. For the avoidance of doubt, the Observer may attend any meeting is an executive session limited solely to independent director members of the Board via conference telephone or similar communications equipment by which all Managers attending in person or telephonically can hear all other attendees. The Company shall reimburse the reasonable, documented out-of-pocket expenses for the Observer (if applicable) in connection with attending regular and special meetings of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Community Choice Financial Inc.)
Observer Rights. (a) For so So long as each (i) Blue Ox owns more than zero percent (0%) and less than ten percent (10%) of the BCP Entities shares of the Common Stock (including shares of Common Stock issued or issuable upon conversion of Preferred Stock) it has originally purchased, which number is subject to appropriate adjustment for all stock splits, dividends, combinations, recapitalizations and the CPPIB Entities individually own four percent like, and (4%ii) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall ATH Holding does not have the right to designate one appoint an observer pursuant to clause (1b) non-voting observer below, the Company shall invite a representative of Blue Ox to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that such representative shall agree to hold in confidence and trust all information so provided (provided, that, notwithstanding the Observer shall have executed a non-disclosure foregoing and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, nothing herein shall permit the Observer restrict such representative from disclosing such information to share information as Blue Ox, subject to Section 3.5 below); and provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a competitor of the Company.
(b) So long as ATH Holding owns Preferred Stock, the Company shall invite a representative of ATH Holding to attend all meetings of the Board of Directors in a nonvoting observer capacity and, in this respect, 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 all information so provided (provided, that, notwithstanding the foregoing and for the avoidance of doubt, nothing herein shall restrict such representative from disclosing such information to ATH Holding, subject to Section 3.5 below); provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting would adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if ATH Holding or its representative is a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Investors’ Rights Agreement (Sera Prognostics, Inc.)
Observer Rights. (a) For so As long as each Qiming owns not less than twenty-five percent (25%) of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the Preferred Stock it has purchased as of the date hereof (or an equivalent amount of Common Stock issued and outstanding Class A Shares and Class B Shares (without regard upon conversion thereof), subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the voting power Preferred Stock, the Company shall invite a representative of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right Qiming to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faithCompany reasonably determines, upon advice of the Company’s outside legal counsel, (A) that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest.
(b) As long as Aventis owns not less than twenty-five percent (25%) of the shares of the Preferred Stock it has purchased as of the date hereof (or an equivalent amount of Common Stock issued upon conversion thereof), subject to appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to the Preferred Stock, the Company shall invite a representative of Aventis to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if the Company reasonably determines, upon advice of counsel, that access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest.
(c) As long as RA Capital owns not less than twenty-five percent (25%) of the material or such portion shares of the meeting which would be required Series B-1 Preferred Stock it has purchased under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), subject to preserve such privilege and not appropriate adjustment in the event of any stock dividend, stock split, combination, or other similar recapitalization with respect to any other portion thereof; or
(ii) such portion the Series B-1 Preferred Stock, the Company shall invite a representative of a meeting is an executive session limited solely RA Capital to independent director members attend all meetings of the BoardBoard in a nonvoting observer capacity and, independent auditors and/or legal in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such directors; provided, however, that such representative shall agree to hold in confidence all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Company reasonably determines, upon advice of counsel, as that access to such information or attendance at such meeting could adversely affect the Board may designate, attorney-client privilege between the Company and an Observer (assuming such Observer were its counsel or result in disclosure of trade secrets or a member conflict of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedinterest.
Appears in 1 contract
Observer Rights. (a) For so long as each Beginning on the date hereof and ending on the date that NHTV no longer beneficially owns at least one third (1/3) of the BCP Entities outstanding shares of Series D Preferred Stock (as defined in the Purchase Agreement) (the “Board Rights Termination Date” and such period from the CPPIB Entities individually own four percent (4%) or more date of the issued and outstanding Class A Shares and Class B Shares (without regard this Agreement to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on Board Rights Termination Date, the Board“Observation Period”), such Sponsor Entity NHTV shall have the right to designate one (1) non-voting observer designate, from time to the Board (eachtime in its sole discretion, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each , an Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings (including telephonic or videoconference meetings) of the Board and all Committees during the Observation Period in a non-voting, observer capacity. NHTV hereby designates Xxxxx Xxxxxxxx to serve as the Observer until his/her successor shall have been designated by NHTV. The Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration, but in no event shall the Observer (i) be deemed to be a member of the Board or any committee thereof Committee; (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its stockholders; (iii) have the right to propose or offer any motions or resolutions to the Board or Committees; or (iv) have the right to vote on any matter under consideration by the Board or any Committee or otherwise have any power to cause the Company to take, or not to take, any action. The Company shall allow the Observer to attend Board or Committee meetings either in person or by telephone or electronic communication, as the Observer may elect in its sole discretion. The Observer’s presence shall not be required for purposes of establishing a quorum.
(b) The Company shall provide the Observer copies of all notices, minutes, consents and shall be notified other materials that it provides to the members of the Board (or Committee, as applicable), except materials that relate to executive sessions of the Board (collectively, “Board Materials”), including any draft versions, proposed written consents, and exhibits and annexes to any such meeting by reasonable prior noticematerials, including such meeting’s at the same time and place, in the same manner as the directors of such information is delivered to the Board members (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time or Committee members, as the Directors (applicable), except to the extent an the Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer clause (xc) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01below.
(bc) Notwithstanding anything herein to the foregoingcontrary, the Company may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorney-client or work product privilege between the Company or its affiliates and its counselor or (B) that an Observer has a potential conflict of interestcounsel; provided, however, that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege; or
or (ii) such Board Materials or discussion relates to an existing or potential conflict of interest between the Company or any of its affiliates and NHTV affiliates; or (iii) 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 an the Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Nasdaq Stock Exchange (the “NYSE”)Market LLC, or such other exchange on which the Company’s securities are then traded.
(d) From and after the Board Rights Termination Date, the rights of NHTV and its designated Observer provided in Sections 1(a) and 1(b) shall cease.
Appears in 1 contract
Samples: Board Observer Agreement (Nn Inc)
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Each Major Investor shall have the right to designate one representative (1) non-voting observer to the a “Board (each, an “Observer”). The appointment and removal of any Observer shall be by written , who shall: (a) receive prior notice (no later than such notice is given to the members of the Board. Each Observer shall be a natural person. Each Observer shall ) of all meetings (both regular and special) of the Board of Directors and each committee of the Board of Directors; (b) be entitled to be present attend (or, at the option of such representative, monitor by telephone) all meetings such meetings; (c) receive all notices, information, reports and minutes of meetings, which are furnished (or made available) to the members of the Board and any of Directors and/or committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s at the same time and place, in the same manner as the directors same is furnished (or made available) to such Board of the Board Directors or committee members; (the “Directors”d) have all information and shall receive copies inspection rights of any director of a Delaware corporation under Delaware corporate law; and (e) be entitled to participate in all written materials distributed to the Directors for purposes of discussions conducted at such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not meetings. If any action is proposed to be taken by the Board of Directors or any Board of Directors committee by written consent in lieu of a meeting, the Company shall give, or shall cause to be counted for purposes given, written notice thereof to each such representative of determining whether there is each Major Investor, which notice shall describe in reasonable detail the nature and substance of such proposed action and shall be delivered not later than the date upon which any member of the Board of Directors or committee received the same. The Company shall furnish, or shall cause to be furnished, to such representative or representatives with a copy of each action by written consent of the Board of Directors or committee in lieu of a meeting thereof not later than five (5) days after it has been signed by a sufficient quorum for number of signatories to make it effective. Notwithstanding the above, each Board Observer shall agree to conduct its business hold in confidence and (y) shall be subject to trust all rules governing the Board information so provided and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an any Board 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 outside legal counsel, (A) that such exclusion Company believes it is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interestcounsel; 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) access to such portion information or attendance at such meeting could result in a conflict of interest between the Board Observer and/or affiliated entities of such Board Observer and the Company; (iii) the information relates to an acquisition proposal from Enterprise, i Ventures, Verizon or Allianz and the Board Observer is designated by Enterprise, i Ventures, Verizon or Allianz, as applicable, or (iv) the Board Observer represents and/or is affiliated with a meeting is an executive session limited solely to independent director members Competitor of the BoardCompany. The Company shall have the right to withhold materials from a Board Observer and to redact minutes in a manner consistent with the foregoing principles. However, independent auditors and/or legal counsel, as the Company shall in good faith endeavor to ensure that meetings of the Board may designateof Directors or committees thereof are conducted in such a manner as to minimize those portions during which any Board Observer shall be excluded, with a view to allowing the Board Observers to attend and an Observer (assuming observe such Observer were a member of meetings to the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedmaximum extent possible.
Appears in 1 contract
Observer Rights. (a) For so long as each Upon the closing of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more acquisition of the issued and outstanding Class A Shares and Class B Shares (without regard Preferred Units by the Investor pursuant to the voting power terms of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the BoardPurchase Agreement, such Sponsor Entity the Investor shall have the right to designate one (1) appoint a non-voting observer to the Board (each, an the “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer , who shall be entitled to be present at attend and participate in all meetings of the Board and any committee and all committees thereof and shall be notified of any such meeting by reasonable prior notice(including executive sessions thereof). Pursuant to the foregoing, including such meeting’s time and place, in the same manner Investor hereby appoints Xxxxxx XxXxxx as the directors of initial Observer. In the Board event that such appointee (the “Directors”or any subsequent appointee pursuant to this Section 2.1) and shall receive copies of all written materials distributed for any reason cease to the Directors for purposes of such meetings at the same time serve as the Directors (except Observer, the Investor shall have the right to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))appoint a replacement thereof; provided, howeverthat in no event shall the Company, that the Operating Partnership, the Advisor or the Board have any right to remove the individual appointed by the Investor to serve as Observer. The Investor shall have the right to designate a different person as the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding The Observer shall have all of the foregoingrights and privileges of a member of the Board and all committees thereof; provided, that in no event shall the Observer be deemed to be a member of the Board or such committees or have the right to vote on any matter under consideration by the Board or such committees. The Observer shall be provided with all notices of meetings, minutes and other materials provided to members of the Board and/or any and all committees thereof simultaneously with the provision of such materials to the members of the Board or such committees, as the case may be. All meetings of the Board or committees thereof shall be held in a manner such that the Observer shall be able to participate therein either in person or telephonically. In the event that the Observer is unable to attend a meeting of the Board or a committee thereof, the Investor shall have the right to send an alternate in the Observer’s place to attend such meeting.
(c) The Company shall reimburse the Observer on a quarterly basis for the reasonable out-of-pocket expenses incurred by the Observer in connection with attendance at Board and committee meetings.
(d) The Company shall enter into an indemnification agreement with the Observer, dated as of the date hereof, that shall be in substantially the form set forth as Exhibit A hereto. In the event that the initial Observer (or any subsequent Observer, as the case may be) is replaced for any reason pursuant to Section 2.1(a), the Company agrees to enter into an indemnification agreement with such replacement Observer that is substantially identical to the indemnification agreement entered into as of the date hereof with the initial Observer (or such subsequent Observer, as the case may exclude be). The Company shall also obtain and maintain insurance coverage (if available) on behalf of the Observer (or any replacement thereof) against liability that may be asserted against or incurred by him in his capacity as Observer, which insurance coverage shall be to the same extent as the insurance coverage provided to the members of the Board.
(e) The right of the Investor to appoint and maintain an Observer from access to any material or meeting or portion thereof if:
the Board pursuant to this Section 2.1 shall terminate upon the earlier to occur of (i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary Investor or a Permitted Transferee ceasing to preserve the attorney-client privilege between the Company Beneficially Own any Preferred Units and its counselor or (B) that an Observer has a potential conflict of interest; 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 the appointment of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedPreferred Directors.
Appears in 1 contract
Samples: Investor Rights Agreement (Griffin Capital Essential Asset REIT, Inc.)
Observer Rights. (a) For so long as During the Term, the Parent shall:
(i) provide the Observer with notice, if any, of each meeting of the BCP Entities Board of Directors (telephonic or otherwise), in the same manner and at the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer same time as provided to the Board of Directors;
(each, an “Observer”). The appointment and removal of any Observer shall be by written notice ii) provide to the Board. Each Observer shall be copies of all materials provided to the Board of Directors, in the same manner and at the same time as provided to the Board of Directors;
(iii) provide to the Observer drafts of all resolutions proposed for signature by the Board of Directors (in lieu of a natural person. Each meeting) before such resolutions are so signed, in the same manner and at the same time as provided to the Board of Directors; and
(iv) permit the Observer shall be entitled to be present at all meetings attend each meeting of the Board and of Directors (telephonic or otherwise), including, without limitation, any committee thereof meeting of the Board of Directors or executive sessions, as an observer, except with respect to materials or resolutions, or attendance at such portions of any such meeting, in which (A) the subject matter relates to a transaction, proceeding or matter in which the Investors or their Affiliates or investee entities (other than the Parent) are or may be interested parties, and shall be notified where the participation in such portion of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed Observer or access to Confidential Information relating to the Directors for purposes Parent would, upon the advice of such meetings at counsel, give rise to a conflict of interest between the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board Investors and the Sponsor Entity that designated such ObserverParent, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken determined by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct Directors in its business and sole discretion, (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(iB) the Board concludes in good faithof Directors determines, upon the advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorneysolicitor-client privilege between the Company and its counselor privilege, or (BC) the Board of Directors determines, upon the advice of counsel, that an such exclusion is reasonably necessary for the Parent or its subsidiaries to comply with any of their respective confidentiality obligations.
(b) The Parent shall not be required to (i) pay any compensation to the Observer has a potential conflict or (ii) provide any indemnification, or maintain coverage under any policies of interestdirectors' and officers' insurance, in favour of the Observer; provided, however, that the Parent shall reimburse any such exclusion shall apply only to such portion reasonable costs or expenses incurred by the Observer in connection with his or her attendance at meetings of the material or such portion Board of Directors, committee meetings of the meeting which would be required to preserve such privilege Board of Directors and not to any other portion thereof; orexecutive sessions.
(iic) such portion of a The Observer shall not have the right to vote at any meeting is an executive session limited solely to independent director members of the BoardBoard of Directors or be counted towards determining whether there is quorum for such meeting, independent auditors and/or legal counsel, as but shall be entitled to participate in the discussions of the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedDirectors.
Appears in 1 contract
Observer Rights. (a) For so long as each 13.1.1 The Borrower hereby grants to the Lender, the option and right, at any time and from time to time, provided that at such time there are Obligations outstanding and/or the Lender or any Eligible Assignee is the holder of Warrants or common shares arising from the exercise of the BCP Entities and Warrants, to appoint a representative (the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment ) to attend in a non-voting, observer capacity, meetings (including telephonic or videoconference meetings and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings held in executive session) of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors committees of the Board (the “DirectorsCommittees”). The Observer may participate fully in discussions of all matters brought to the Board or Committee, as the case may be, for consideration, but in no event shall the Observer (i) and be deemed to be a member of the Board or any Committee; (ii) without limitation of the obligations expressly set forth in this Article 13, have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Borrower or its shareholders; or (iii) have the right to propose or offer any motions or resolutions to the Board or Committees. Upon request, the Borrower shall receive allow the Observer to attend Board or Committee meetings by telephone, videoconference or other electronic communication.
13.1.2 The Borrower shall provide to the Observer copies of all notices, minutes, consents, reports and other materials that it provides to Board or Committee members, including any draft versions, proposed written materials distributed consents, and exhibits and annexes to the Directors for purposes of any such meetings materials, at the same time and in the same manner as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory information is delivered to the Board or Committee members, whether delivered in advance of, at or between meetings of the Board or Committee, as the case may be. Collectively, the information and materials referred to in this Section 13.1.2 are referred to as “Board Materials”. In the Sponsor Entity event that designated such there is no Observer present at any meetings of the Board or a Committee or the Lender has not appointed an Observer, which for the avoidance Borrower shall promptly and in any event within three Business Days of doubtany meetings of the Board or a Committee, provide the relevant Board Materials to the Lender.
13.1.3 The Observer shall permit be entitled to receive, concurrently with the Observer members of the Board (or a Committee thereof), notice of the intended date, time and agenda of any meeting of the Board (or a Committee thereof) and copies of any Board Materials to share information be considered at such meeting, but shall have no right to vote as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights a Director with respect to actions taken or elected not any matter. Notwithstanding anything herein to be taken by the contrary, the Board (or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the CompanyCommittee thereof), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b)in its reasonable discretion, such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an the Observer from access to any material or Board Materials, meeting or portion thereof if:
(i) if the Board concludes concludes, acting reasonably and in good faith, upon advice of the Company’s outside legal counsel, that (Ai) that such exclusion is reasonably necessary to preserve the attorneysolicitor-client or litigation privilege between the Company Borrower and its counselor or counsel (B) that an Observer has a potential conflict of interest; provided, however, provided that any such exclusion shall only apply only to such portion of the such material or such portion of the meeting which would be required to preserve such privilege and not to any other portion thereofprivilege); or
(ii) such portion Board Materials or discussion relates directly to the Borrower’s relationship, contractual or otherwise, with the Lender or any actual or potential transactions between or involving the Borrower and the Lender; or (iii) such exclusion is necessary to avoid disclosure that is restricted by any agreement to which the Borrower is a party or otherwise bound prior to the date of this Agreement (provided that (i) the Borrower shall use commercially reasonable efforts to obtain consent to disclosure that is restricted by any such written agreement and (ii) with respect to any written agreement entered into after the Closing Date, the Corporation shall use commercially reasonable efforts to include terms that would allow the access contemplated by this Section 13.1.2.
13.1.4 The parties agree that neither the Borrower nor any member of the Board or Committee shall be entitled to rely on any statements or views expressed by the Observer in any Board or Committee meeting.
13.1.5 The Observer shall have the right to nominate a meeting is an executive session limited solely replacement Observer from time to independent director members time by delivery of written notice to the chairperson of the Board; provided, independent auditors and/or legal counsel, as that the Chairperson of the Board may designate, and an Observer must receive such replacement notice at least five (assuming such Observer were 5) days prior to a member meeting of the BoardBoard (or a Committee thereof) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or if any such other exchange on which the Company’s securities are then tradedreplacement Observer is to be entitled to observe such meeting.
Appears in 1 contract
Samples: Loan Agreement (Telesat Corp)
Observer Rights. (a) For so long as each RA Capital Healthcare Fund, L.P. or any of the BCP Entities and the CPPIB Entities individually own four percent its Affiliates (4%collectively, “RA Capital”) hold any shares of Series B Preferred Stock or more Series C Preferred Stock (or any amount of the Common Stock issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Sharesupon conversion thereof) and there is no Director who is not a designee of such Sponsor Entity on the BoardDefaulting Purchaser, such Sponsor Entity RA Capital shall have the right to designate one (1) non-voting observer who, at any time during which (a) RA Capital does not have a representative designated to serve on the Board or (each, an “Observer”). The appointment and removal b) RA Capital’s Board representative is unable to attend a meeting of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer , shall be entitled to be present at attend all meetings of its Board in a nonvoting observer capacity and, in this respect, receive copies of all notices, minutes, consents, and other materials provided to the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such observer shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement trust all information so provided; and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if the observer is an Affiliate of a competitor of the Company.
(b) For so long as Medicxi Ventures I LP or any of its Affiliates (collectively, “Medicxi”) hold any shares of Series C Preferred Stock (or any amount of Common Stock issued upon conversion thereof) and is not a Defaulting Purchaser, Medicxi shall have the right to designate one (1) observer who shall be entitled to attend all meetings of its Board in a nonvoting observer capacity and, in this respect, receive copies of all notices, minutes, consents, and other materials provided to the directors at the same time and in the same manner as provided to such directors; provided, however, that such observer shall agree to hold in confidence and trust all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such exclusion shall apply only observer from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if the observer is an Affiliate of a competitor 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For so long as each a period of three (3) years following the BCP Entities and date hereof, the CPPIB Entities individually own four percent (4%) Securityholders’ Representative, or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Boardits designee, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled permitted to be present in a nonvoting observer capacity (the “Board Observer”) at all meetings of the Board and any committee thereof and of Directors (the “Board”) of the Company. The Board Observer shall be notified entitled to receive copies of any such meeting by reasonable prior noticeall notices, including such meeting’s minutes, consents, and other materials that the Company provides to its directors at the same time and place, in the same manner as the provided to such directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Board Observer shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share trust all information as provided in Section 5.04; so provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) . Notwithstanding the foregoing, in the event the Securityholders’ Representative, or its designee, has not executed and delivered to the Company may a confidentiality agreement in the form of Exhibit A attached hereto (the “Confidentiality Agreement”), the Company reserves the right to withhold any information and to exclude an the Board 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 outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege or attorney work product privilege between the Company and its counselor counsel or (B) that an Observer has a potential conflict result in disclosure of interest; provided, however, that any such exclusion shall apply only trade secrets or information of third parties the confidentiality of which the Company is obligated 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; ormaintain.
(iib) such portion The Company recognizes and acknowledges that the Securityholders’ Representative and the Cilion Stockholders may now or in the future be engaged in the research, development, production, marketing, licensing and/or sale of a meeting is an executive session limited solely similar services or products to independent director members of the Boardthose being researched, independent auditors developed, produced, marketed, licensed and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted sold by the New York Stock Exchange Company and its Subsidiaries. Nothing in this Stockholders’ Agreement shall be construed to prevent the Securityholders’ Representative and the Cilion Stockholders from engaging independently in such activities.
(c) Nothing contained in this Stockholders’ Agreement shall be construed as preventing Securityholders’ Representative from distributing such information to the Cilion Stockholders, which Securityholders’ Representative may elect to do in its sole discretion but only if the Cilion Stockholder receiving such information has signed the Confidentiality Agreement or a similar form of confidentiality agreement. For purposes of this Stockholders’ Agreement, the term “NYSE”), or such other exchange on which the Company’s securities are then tradedMaterial Confidential Information” means material nonpublic information under Regulation FD.
Appears in 1 contract
Observer Rights. (a) For so As long as each Soleus owns not less than twenty-five percent (25%) of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more shares of the Series D Preferred Stock it is purchasing under the Purchase Agreement (or an equivalent amount of Common Stock issued and outstanding Class A Shares and Class B Shares (without regard upon conversion thereof), the Company shall invite a representative of Soleus to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed provided to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))directors; provided, however, that the Observer such representative shall have executed agree to hold in confidence and trust and to act in a non-disclosure fiduciary manner with respect to all information so provided; and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) that if access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has result in disclosure of trade secrets or a potential conflict of interest, or if such Investor or its representative is a competitor of the Company.
(b) As long as HBM owns not less than twenty-five percent (25%) of the shares of the Series D Preferred Stock it is purchasing under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of HBM to attend all meetings of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its directors at the same time and in the same manner as provided to such 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 the Company reserves the right to withhold any information and to exclude such exclusion shall apply only representative from any meeting or portion thereof if access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of trade secrets or a conflict of interest, or if such Investor or its representative is a competitor of the material or such portion Company.
(c) As long as Farallon owns not less than twenty-five percent (25%) 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 shares of the BoardSeries D Preferred Stock it is purchasing under the Purchase Agreement (or an equivalent amount of Common Stock issued upon conversion thereof), independent auditors and/or legal counsel, as the Company shall invite a representative of Farallon to attend all meetings of the Board may designatein a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and an Observer (assuming other materials that it provides to its directors at the same time and in the same manner as provided to such Observer were directors; provided, however, that such representative shall agree to hold in confidence and trust and to act in a member fiduciary manner with respect to all information so provided; and provided further, that the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or result in disclosure of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), trade secrets or such other exchange on which the Company’s securities are then tradeda conflict of interest.
Appears in 1 contract
Observer Rights. (a) For so As long as each X. Xxxx Price and funds and accounts managed by X. Xxxx Price Associates, Inc. collectively own not less than an aggregate of 25% of the BCP Entities and Series F Preferred Stock outstanding (or an equivalent amount of Common Stock issued upon conversion thereof), the CPPIB Entities individually own four percent (4%) or more Company shall invite a representative of the issued and outstanding Class A Shares and Class B Shares (without regard X. Xxxx Price Associates, Inc. to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the its Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors in a nonvoting observer capacity and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give such representative copies of all written notices, minutes, consents and other materials distributed that it provides to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))its directors; provided, however, that the Observer such representative shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory trust with respect to all information so provided; except to the Board and the Sponsor Entity that designated extent such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to may be taken made publicly available by the Board Company or be counted for purposes of determining whether there is a sufficient quorum for otherwise becomes publicly available (other than through unauthorized disclosure by the Board to conduct its business and Holder), (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting is shown by written instrument record to have been in the possession of or known to the extent permitted Holder prior to its receipt by applicable law; providedthe Holder hereunder, further, that if at any time or (upon written notice z) is made available without restriction to the Company), a Sponsor Entity elects to suspend the receipt of the information provided Holder by any person other than the Company under Section 5.04(b)without breach of any obligation of confidentiality of such other person, such Sponsor Entity may also elect and except if required in connection with a judicial, legislative or administrative investigation or proceeding or to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) a government or other regulatory agency. Notwithstanding the foregoing, the Company may reserves the right to withhold any information and to exclude an Observer such representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, Company reasonably believes upon advice of the Company’s outside legal counsel, (A) counsel that access to such exclusion is reasonably necessary to preserve information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counselor counsel or would result in disclosure of trade secrets to such representative or if such Investor or its representative is or is affiliated with a direct competitor of the Company.
(Bb) As long as the MSIM Accounts collectively own not less than an aggregate of 25% of the Series F Preferred Stock outstanding (or an equivalent amount of Common Stock issued upon conversion thereof), the Company shall invite a representative of Xxxxxx Xxxxxxx to attend all meetings of its Board of Directors in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents and other materials that an Observer has a potential conflict of interestit provides to its directors; provided, however, that such representative shall agree to hold in confidence and trust with respect to all information so provided; except to the extent such information (x) may be made publicly available by the Company or otherwise becomes publicly available (other than through unauthorized disclosure by the Holder), (y) is shown by written record to have been in the possession of or known to the Holder prior to its receipt by the Holder hereunder, or (z) is made available without restriction to the Holder by any person other than the Company without breach of any obligation of confidentiality of such exclusion shall apply only other person, and except if required in connection with a judicial, legislative or administrative investigation or proceeding or to a government or other regulatory agency. Notwithstanding the foregoing, the Company reserves the right to withhold any information and to exclude such representative from any meeting or portion thereof if the Company reasonably believes upon advice of counsel that access to such portion information or attendance at such meeting could adversely affect the attorney-client privilege between the Company and its counsel or would result in disclosure of trade secrets to such representative or if such Investor or its representative is or is affiliated with a direct competitor of the material or such portion Company.”
(e) Pursuant to Section 5.2 of the meeting which would be required to preserve such privilege and not to any other portion thereof; or
(iiInvestors’ Rights Agreement, Section 5.1(f) such portion of a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, Investors’ Rights Agreement is hereby amended and restated in its entirety as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.follows:
Appears in 1 contract
Observer Rights. (a) For so As long as Viking, The United States Life Insurance Company in the City of New York (“AIG”) and Aisling Capital IV, LP (“Aisling”) are Series C Preferred Members, the Company shall invite a representative of each of the BCP Entities Viking, AIG and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board Aisling (each, an a “Series C Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of the Board and of any committee of the Board in a nonvoting observer capacity and, in this respect, shall give such representative copies of all notices, minutes, consents, and other materials that it provides to its Managers in connection with such meetings; provided, however, that such Series C Observer shall have agreed in writing for the benefit of the Company to hold in confidence and trust all information so provided in accordance with Section 6.1.5 below; and provided further, that the Company and the Board reserve the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could reasonably result in the loss of attorney-client privilege or result in disclosure of trade secrets or confidential information to a competitor. For the avoidance of doubt, no such representative shall be a Manager or member of the Board or have any voting rights at any such meeting of the Board or any committee thereof for any purpose and no such representative shall have any fiduciary duties to the Company or the Members. No amendment or waiver to this Section 6.1.4 may adversely affect the specified rights of a Member set forth in this Section 6.1.4 unless the Member adversely affected thereby shall have consented in writing to such amendment or waiver. Each Series C Observer shall be notified entitled to reimbursement from the Company for all reasonable and documented out-of-pocket costs and expenses incurred by them in connection with any travel undertaken for the purpose of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors attending meetings of the Board and of any committee of the Board.
(b) As long as HH BBP LLC (“Xxxxxxxxx”) is a Series D Preferred Member, the Company shall invite a representative of Xxxxxxxxx (the “DirectorsSeries D Observer” and collectively with the Series C Observers, the “Observers”) to attend all meetings of the Board and of any committee of the Board in a nonvoting observer capacity and, in this respect, shall receive give such representative copies of all written notices, minutes, consents, and other materials distributed that it provides to the Directors for purposes of its Managers in connection with such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))meetings; provided, however, that the Series D Observer shall have executed a non-disclosure agreed in writing for the benefit of the Company to hold in confidence and confidentiality agreement trust all information so provided in accordance with Section 6.1.5 below; and such other acknowledgments provided further, that the Company and agreements reasonably satisfactory to the Board reserve the right to withhold any information and to exclude such representative from any meeting or portion thereof if access to such information or attendance at such meeting could reasonably result in the Sponsor Entity that designated such Observer, which for loss of attorney-client privilege or result in disclosure of trade secrets or confidential information to a competitor. For the avoidance of doubt, no such representative shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken be a Manager or elected not to be taken by member of the Board or have any voting rights at any such meeting of the Board or any committee thereof for any purpose and no such representative shall have any fiduciary duties to the Company or the Members. No amendment or waiver to this Section 6.1.4 may adversely affect the specified rights of a Member set forth in this Section 6.1.4 unless the Member adversely affected thereby shall have consented in writing to such amendment or waiver. The Series D Observer shall be counted entitled to reimbursement from the Company for purposes of determining whether there is a sufficient quorum all reasonable and documented out-of-pocket costs and expenses incurred by them in connection with any travel undertaken for the Board to conduct its business and (y) shall be subject to all rules governing purpose of attending meetings of the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at of any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict of interest; 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 committee of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Samples: Limited Liability Company Agreement (BridgeBio Pharma LLC)
Observer Rights. (a) For so long During the Standstill Period, FairMarket shall permit Xxxxx Xxxxxxxxxxx, as each a designated representative of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more JHC Entities, to attend Board of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right to designate one (1) non-voting observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all Directors meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b))FairMarket; provided, however, that (i) no other person designated by the Observer JHC Entities shall have executed a non-disclosure and confidentiality agreement and such be permitted to attend Board of Directors meetings of FairMarket (other acknowledgments and agreements reasonably satisfactory to than the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information JHC Nominee as provided in Section 5.04; provided, further, that such Observer (x2(a) above) and neither the JHC Entities nor Xx. Xxxxxxxxxxx shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer substitute any other person in accordance with this Section 3.01.
his stead, (bii) Notwithstanding the Board of Directors of FairMarket shall have the right to exclude Xx. Xxxxxxxxxxx from any meeting of the Board of Directors or portion thereof if the Board determines in good faith that such attendance would not be appropriate in light of the subject matter to be discussed at such meeting or such portion thereof (without limiting the generality of the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) such attendance would not be appropriate in circumstances where the Board concludes determines in good faith, faith based upon advice of the Company’s outside legal counsel, (A) counsel that such exclusion is reasonably necessary to preserve the attendance might compromise FairMarket's attorney-client privilege between privileges, attorney work-product privileges or similar protections or privileges or in circumstances where the Company and its counselor Board determines in good faith that there is an actual or (B) that an Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion interest or other interest on the part of the material JHC Entities or Xx. Xxxxxxxxxxx that makes such portion attendance inappropriate, notwithstanding the presence of the meeting which would JHC Nominee), (iii) Xx. Xxxxxxxxxxx shall 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 observer only, at the invitation of the BoardFairMarket Board of Directors, independent auditors and/or legal counselshall not be a director and shall have no voting rights as a director, and (iv) all rights of Xx. Xxxxxxxxxxx and the JHC Entities under this Section 2(d) shall terminate at such time as the Board may designateJHC Entities, together with their Associates and an Observer (assuming such Observer were a member Affiliates, are the beneficial owners of less than 5% of the Board) would total outstanding shares of Common Stock (and such rights shall not meet be reinstated in any manner if the then-applicable standards for independence adopted by JHC Entities, together with their Associates and Affiliates, subsequently become the New York Stock Exchange (beneficial owners of 5% or more of the “NYSE”total outstanding shares of Common Stock), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For MIHI, for so long as each of the BCP Entities and the CPPIB Entities individually own four it holds at least five percent (45%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B all Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall have the right be entitled to designate one (1) person (the “Observer”) to attend, as a non-voting observer to the Board (eachobserver, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings (including telephonic meetings) of the Board and any committee thereof and committees thereof; provided, that, if MIHI ceases to hold at least five percent (5%) of all Shares, MIHI shall no longer have the right to designate an Observer. The Observer shall be notified obligated to comply with any confidentiality provisions generally applicable to Directors from time to time. The Company shall give the Observer notice of any such meeting meetings, by reasonable prior noticetelecopy or by such other means as such notices are delivered to Directors, including such meeting’s time and place, in not later than the same manner as time notice is provided or delivered to the directors Directors; provided, that a majority of the Board (or a majority of any committee thereof) may exclude the “Directors”) and shall receive copies Observer from any meeting of all written materials distributed to the Directors for purposes Board (or of such meetings at committee) or any portion thereof in the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, event that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to majority of the Board and the Sponsor Entity that designated (or of such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (xcommittee) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may exclude an 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 outside legal counsel, (A) reasonably believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, to protect confidential information or to comply with law. To the Company and its counselor fullest extent permitted by applicable law, any materials that are sent to the Directors in their capacity as such, whether or (B) that an Observer has a potential conflict of interest; 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 in connection with a meeting is an executive session limited solely to independent director members of the Board, independent auditors and/or legal counselincluding copies of all minutes, consents, correspondence and other material, shall be sent to the Observer simultaneously by the Company by means reasonably designed to insure timely receipt by the Observer; provided, that the Company may exclude from the materials sent to the Observer any materials that the Company reasonably believes are or may be subject to the attorney-client privilege or to protect confidential information. So long as MIHI is entitled to designate an Observer, MIHI shall be entitled to remove or replace an existing Observer or designate a new Observer, as applicable, with or without cause at any time by sending a written notice to the Board Company. MIHI may designatealso elect to leave its Observer position vacant and decline its right to receive a copy of all such materials and information for so long as it shall so specify in writing to the Company. Except as is reasonably necessary to preserve the attorney-client privilege, to protect confidential information or to comply with law, the Observer shall have the right to share all materials and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted information received by the New York Stock Exchange (Observer with the “NYSE”)MIHI Group, or such other exchange on which subject to the Company’s securities are then tradedsame confidentiality provisions generally applicable to Directors from time to time.
Appears in 1 contract
Samples: Stockholders Agreement (Inspired Entertainment, Inc.)
Observer Rights. (a) For so So long as each all or any portion of the BCP Entities and Series C Preferred Stock is outstanding, the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Co-Lead Investors shall have the right to designate appoint one representative (1a "Representative") non-voting to attend as an observer to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board of Directors (and each committee meeting thereof); provided, that, in the case of telephonic meetings conducted in accordance with the Company's by-laws and applicable law, the Representative shall be given the opportunity to participate in such telephonic meetings to the same extent other directors are permitted to participate. The Co-Lead Investors may replace their Representative from time to time, and each such replacement shall be deemed a "Representative" for purposes of this Section 3. The Co-Lead Investors shall be required to furnish the name and address of its Representative (or any such replacement) to the Company upon request therefore. The Company shall give each Representative written notice of every meeting of its Board of Directors (and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s thereof) at the same time and place, in the same manner as notice is given to the directors of the Company. The Company shall bear, and reimburse each Representative for, the reasonable costs of such Representative's attendance at or participation in any meetings of the Board (the “of Directors”) and . Each Representative shall be entitled to receive copies of all written materials distributed and other information given to the directors of the Company in connection with all meetings of the Board of Directors for purposes of such meetings or otherwise at the same time as and in the Directors (except same manner such materials and information are given to the extent an Observer has been excluded therefrom directors. Prior to the Company's obligations to provide notices and information hereunder, each Representative shall execute and deliver to the Company a standard nondisclosure agreement restricting the use or disclosure of any confidential information received by such Representative pursuant to this Section 3.01(b)); provided, however, that the Observer 3. Each Representative shall have executed a non-disclosure be entitled to consult with and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to advise the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights Directors on business issues with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum Company and its Subsidiaries, including management's proposed annual operating plans for the Board to conduct Company and its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01.
(b) Subsidiaries. Notwithstanding the foregoing, the Company may shall have the right to exclude an Observer any Representative from access attending any portion of a meeting and shall have the right to withhold any material or meeting or portion thereof if:
(i) written materials if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) Directors determines that such exclusion or withholding is reasonably necessary due to a potential or actual conflict of interest or determines that such exclusion or withholding is necessary to preserve protect the attorney-client privilege between the Company and its counselor or (B) that an Observer has a potential conflict such counsel. The Company shall take all reasonably necessary steps to implement the provisions of interest; 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedthis Section 3.
Appears in 1 contract
Samples: Voting Agreement (Molecular Insight Pharmaceuticals, Inc.)
Observer Rights. So long as (x) Future VC (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B holds at least 1,064,280 Shares (without regard as adjusted for stock dividends, stock splits, combinations and other similar recapitalizations) (the “Multiple Threshold Amount”), the Company shall invite up to three (3) representatives designated by Future VC and (b) holds at least 425,712 Shares (as adjusted for stock dividends, stock splits, combinations and other similar recapitalizations) but less than the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on Multiple Threshold Amount, the Board, such Sponsor Entity Company shall have the right to designate invite one (1) non-voting observer representative designated by Future VC, or (y) Ecolab Inc. or its Affiliates (“Ecolab”) holds 753,322 Shares (as adjusted for stock dividends, stock splits, combinations and other similar recapitalizations), the Company shall invite on (1) representative designated by Ecolab, in each case, to the Board (each, an “Observer”). The appointment and removal of any Observer shall be by written notice to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at attend all meetings of its Board of Directors, and the Board board of directors of each subsidiary of the Company, in a nonvoting observer capacity and, in this respect, shall give such representatives copies of all notices, minutes, consents, and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s other materials that it provides to its directors at the same time and place, in the same manner as the provided to such directors of the Board (collectively, the “DirectorsCompany Board Materials”) and shall receive copies of all written materials distributed to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, that the Observer each such representatives (each, a “Board Observer”) shall have executed a non-disclosure agree to hold in confidence and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the trust all Company Board and the Sponsor Entity that designated such ObserverMaterials so provided; and, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding the foregoing, the Company may withhold any information and to exclude an Observer such representatives from access to any material or meeting or portion thereof if:
(i) thereof, which access to such information or attendance at such meeting, if the Board concludes in good faithCompany believes, upon the advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve would adversely affect the attorney-client privilege between the Company and its counselor counsel or (B) that an Observer has would result in disclosure of trade secrets or a potential conflict of interest, or if Future VC, Ecolab or their respective representatives is a Competitor; providedprovided that it is acknowledged and agreed that Future VC or Ecolab shall not be deemed a Competitor solely on the basis of their (or its affiliates’) investments in, howeverinvolvement with, or membership on the board of directors of its portfolio companies that any such exclusion shall apply only to such portion may be Competitors of the material or Company. In addition, to the extent remote attendance cannot be accommodated, such portion Board Observers shall be entitled to reimbursement for all reasonable out-of-pocket travel expenses incurred (consistent with the Company’s travel policy) in connection with attending meetings of the meeting which would be required to preserve such privilege and not to Board or any other portion committee thereof; or
(ii) such portion of a meeting is an executive session limited solely to independent director members , or in connection with performing any duties on behalf of the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of delegated to it in writing by the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then traded.
Appears in 1 contract
Observer Rights. (a) For so long as With respect to the Company and each of its Subsidiaries, the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity Required Purchasers shall have the right to designate send one (1) non-voting observer to (the Board (each, an “Non-Voting Observer”). The appointment and removal of any Observer shall be by written notice ) to the Board. Each Observer shall be a natural person. Each Observer shall be entitled to be present at all meetings of the Board and any committee thereof and shall be notified board of any such meeting by reasonable prior notice, including such meeting’s time and place, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written materials distributed to the Directors for purposes or other applicable governing body of such meetings at entity, provided (i) the same time as the Directors Non-Voting Observer shall enter into an appropriate confidentiality agreement regarding all confidential information so received, and (except to the extent an Observer has been excluded therefrom pursuant to Section 3.01(b)); provided, however, ii) that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding exclude the foregoing, the Company may exclude an Non-Voting Observer from access to any of such materials or meetings or portions thereof if (A) the Company reasonably considers any such material or meeting or portion thereof if:
to be a trade secret or similar confidential information, (iB) the Board concludes in good faithCompany believes, upon advice of the Company’s outside legal counsel, (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, (C) in the judgment of a majority of the Board, such access would materially impair the due consideration by the Board of any matter, or (D) in the judgment of the Board or upon advice of counsel such access will disclose to the Non-Voting Observer material non-public information. The Company and each of its counselor Subsidiaries shall use their reasonable best efforts to provide the Purchasers with notice of all meetings of its respective board of directors or (B) other applicable governing body of such entity consistent with that an Observer has a potential conflict provided to the official members of interestboard of directors or other applicable governing body of such entity; provided, however, that the failure to give such notice shall not invalidate any action taken by the board of directors or other applicable governing body of such exclusion shall apply only to entity at the meeting. The foregoing notwithstanding, at such portion time as the Purchasers or their Affiliates own, in the aggregate, less than the principal amount of $500,000 of the material or such portion of Notes, the meeting which would be required Purchasers shall lose their right 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 have the Board, independent auditors and/or legal counsel, as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the thenNon-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedVoting Observer.
Appears in 1 contract
Observer Rights. (a) For so long as each of the BCP Entities and the CPPIB Entities individually own four percent (4%) or more of the issued and outstanding Class A Shares and Class B Shares (without regard to the voting power of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity The PG Stockholders shall have the right to designate and remove, and the Company shall take all Necessary Action to appoint or remove, as applicable, one (1) or more non-voting observer to the Board observers (each, an “Observer”). The appointment and removal ) to the Board of Directors (or any committees thereof) or any board of directors or equivalent governing body of any Observer shall be by written notice to Subsidiary of the BoardCompany (or any committees thereof). Each Observer shall be a natural person. Each Observer shall be entitled to be present shall, at all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s same time and place, in the same manner as provided to the directors of the Board of Directors (or members of any applicable committee thereof) or directors or members of the “Directors”board of directors or equivalent governing body of any Subsidiary of the Company (or members of any applicable committee thereof), as applicable, be entitled to (i) and shall be given notice of all meetings (whether in person, telephonic or otherwise) of the Board of Directors (or any applicable committee) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, (ii) receive copies of all written notices, agendas, consents, minutes and other materials distributed to the Directors for purposes Board of such meetings at the same time as the Directors (except or any committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, whether provided to such directors or members in advance, during or after any meeting, regardless of whether such Observer shall be in attendance at such meeting and (iii) participate in (but not vote on) all discussions conducted at meetings of the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, except, in the case of clauses (ii) and (iii), to the extent an Observer has been excluded therefrom from such meeting pursuant to Section 3.01(b)4.2(b); provided, however, provided that the such Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04PG Stockholders; provided, further, that such Observer shall (xA) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, to conduct its business and (yB) shall be subject to all rules governing the Board and nothing herein shall prevent of Directors (or any applicable committee thereof) or the Board from acting by written instrument to board of directors or equivalent governing body of any Subsidiary of the extent permitted by Company (or any applicable law; provided, further, that if at any time (upon written notice to the Companycommittee thereof), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend the right to appoint an Observer in accordance with this Section 3.01as applicable.
(b) Notwithstanding the foregoing, the Company or any Subsidiary of the Company, as applicable, may exclude an Observer from access to any material or meeting or portion thereof if:
: (i) the Board of Directors (or any applicable committee thereof) or the board of directors or equivalent governing body of any Subsidiary of the Company (or any applicable committee thereof), as applicable, concludes in good faith, upon advice of the Company’s outside legal counsel, that (A) that such exclusion is reasonably necessary to preserve the attorney-client privilege between the Company or such Subsidiary, as applicable, and its counselor or (B) that an such Observer has a potential conflict of interest; 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
or (ii) such portion of a meeting is an executive session limited solely to independent director members of the BoardBoard of Directors (or an applicable committee thereof), independent auditors and/or legal counsel, as the Board of Directors (or such applicable committee thereof) may designate, and an Observer (assuming such Observer were a member of the BoardBoard of Directors) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedExchange.
Appears in 1 contract
Observer Rights. (ai) For so long as each Until the consummation of a Qualified Public Offering, the Company shall invite representatives with relevant knowledge of the BCP Entities and the CPPIB Entities individually own four percent Company’s industry (4%each, a “Representative”) or more of the issued and outstanding Class A Shares and Class B Shares sponsored by (without regard to the voting power of such Class B Sharesi) and there is no Director who is a designee of such Sponsor Entity on the Board, such Sponsor Entity shall if at any time Samsung does not have the right to designate one (1) non-voting observer to a member of the Board of Directors pursuant to Section 6 of the Company’s Amended and Restated Stockholders. Agreement (each, an the “ObserverStockholders Agreement”). , dated as of the date hereof, Samsung, (ii) if at any time 3i Technology Partners L.P. (“3i”) does not have the right to designate a member of the Board of Directors pursuant to Section 6 of the Stockholders Agreement, 3i, and (iii) if at any time The appointment VenGrowth Investment Fund Inc. and removal The VenGrowth II Investment Fund Inc. (together, “VenGrowth”) do not have the right to designate a member of any Observer shall be by written notice the Board of Directors pursuant to Section 6 of the Board. Each Observer shall be Stockholders Agreement, VenGrowth, in each case to attend at the expense of the respective sponsoring party in a natural person. Each Observer shall be entitled to be present at nonvoting observer capacity all meetings of the Board and any committee thereof and shall be notified of any such meeting by reasonable prior notice, including such meeting’s time and placeDirectors and, in the same manner as the directors of the Board (the “Directors”) and this respect, shall receive give each Representative copies of all written materials distributed notices, minutes, consents, and other material that it provides to its directors (subject to the Directors for purposes of such meetings at the same time as the Directors (except to the extent an Observer has been excluded therefrom pursuant to limitations and exceptions in this Section 3.01(b12(d)); provided, however, that the Observer shall have executed a non-disclosure and confidentiality agreement and such other acknowledgments and agreements reasonably satisfactory to the Board and the Sponsor Entity that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer (x) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) . Each Representative shall be subject to all rules governing the approval of the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the Company under Section 5.04(b), such Sponsor Entity may also elect to suspend Directors in its good faith judgment. No Representative will have the right to appoint an Observer in accordance with this Section 3.01attend any meetings of the committees of the Board of Directors.
(bii) Notwithstanding The Company reserves the foregoing, the Company may right to exclude an Observer any Representative from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, upon advice of the Company’s outside legal counsel, (A) Company believes that such exclusion is reasonably necessary to preserve the attorney-client privilege between privilege, fulfill the Company Company’s obligations with respect to confidential or proprietary or similar confidential information of third parties, or preserve the integrity of the Company’s trade secrets, or protect similar proprietary information.
(iii) Each Representative shall immediately report to the Board of Directors if he or she becomes aware of the existence of conflict of interest of such Representative or the business organization affiliated with such Representative (for the purpose of such determination, it shall be assumed that the Representative is in a fiduciary relationship with the Company). In the event that a majority of the Board, acting reasonably and its counselor in good faith (and after deliberation in a closed session in which they can exclude the applicable Representative), determines that the presence of the Representative at portions of a Board meeting would result in an actual or (B) that an Observer has a potential conflict of interest; provided, howeverinhibit deliberations by the Board on a material matter or could otherwise be injurious to the Company, that the Company shall have the right to exclude the Representative from portions of any such exclusion shall apply only to such portion meetings of the material Board dealing with such matter and to omit to provide the Representative with certain information if such information involves information or analysis dealing with such portion matter.
(iv) Samsung, 3i and VenGrowth each covenants and agrees that all of the meeting which would information disclosed to its Representative pursuant to the provisions of this Section 12(d) shall be required treated in accordance with Section 12(a)(v) of this Agreement. Each person who is sponsored as a Representative, shall agree to preserve such privilege treat information disclosed to him or here in accordance with Section 12(a)(v) of this Agreement and not to any other portion thereof; orotherwise comply with the requirements of this Section 12(d).
(iiv) Notwithstanding the foregoing, in the event any of Samsung, VenGrowth or 3i for any reason ceases to hold Shares representing a value of at least $1,250,000 calculated based on the original cost of such portion of a meeting is capital stock, then such party shall no longer be entitled to sponsor an executive session limited solely to independent director members of the Board, independent auditors and/or legal counsel, observer as the Board may designate, and an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedspecified above.
Appears in 1 contract
Observer Rights. (ai) For so long as each of a Cornerstone Transferee Group member has the BCP Entities and the CPPIB Entities individually own four percent right to designate at least one (4%1) or more of the issued and outstanding Class A Shares and Class B Shares (without regard director to the voting power Board pursuant to Section 2.2, but does not make any such nomination and does not have any of such Class B Shares) and there is no Director who is a designee of such Sponsor Entity on the Boardits nominees serving as director, such Sponsor Entity Cornerstone Transferee Group member shall have the right to designate appoint, remove and replace one person (1an “Observer”) non-voting to act as an observer to the Board by providing written notice of such appointment, removal or replacement, as the case may be, to the Company.
(each, an “Observer”). ii) The appointment and removal Company shall deliver notice of each proposed action of the Board (including any Observer shall be proposed action by written consent) and each meeting of the Board (including telephonic or teleconferenced meetings) substantially concurrently with any notice given to the members of the Board. Each , as the case may be.
(iii) The Company agrees to permit each Observer shall be a natural person. Each Observer shall be entitled to be present at attend in person or by conference call and participate in all meetings of the Board and any committee thereof and shall be notified of to distribute all materials distributed for or at any such meeting by reasonable prior notice(including any meeting agenda or board package) and all other information and materials distributed to members of the Board, including such meeting’s time and placeas the case may be, in the same manner as the directors of the Board (the “Directors”) and shall receive copies of all written each case, substantially concurrently with any such information or materials distributed to the Directors for purposes members of such meetings at the same time Board, as the Directors case may be; provided that (except x) the Observer signs a confidentiality agreement in a form reasonably acceptable to the extent Company and (y) if an Observer has been excluded therefrom pursuant issue is to Section 3.01(b)); providedbe discussed or otherwise arises at a meeting of the Board, howeverwhich, that in the reasonable judgment of the Board cannot be discussed in the presence of the Observer in order to avoid any breach of fiduciary duties of any director or preserve attorney-client privilege, then such issue may be discussed without the Observer being present and may be deleted from any materials being distributed in connection with any meeting at which such issues are to be discussed.
(iv) No Observer shall have executed be entitled to vote at a non-disclosure and confidentiality agreement and meeting of the Board.
(v) Each Observer may provide all materials distributed to such other acknowledgments and agreements reasonably satisfactory Observer in its capacity as Observer to the Board and the Sponsor Entity Cornerstone Transferee Group member that designated such Observer, which for the avoidance of doubt, shall permit the Observer to share information as provided in Section 5.04; provided, further, that such Observer .
(xvi) shall not have voting rights with respect to actions taken or elected not to be taken by the Board or be counted for purposes of determining whether there is a sufficient quorum for the Board to conduct its business and (y) shall be subject to all rules governing the Board and nothing herein shall prevent the Board from acting by written instrument to the extent permitted by applicable law; provided, further, that if at any time (upon written notice to the Company), a Sponsor Entity elects to suspend the receipt of the information provided by the The Company under Section 5.04(b), such Sponsor Entity may also elect to suspend reserves the right to appoint an Observer in accordance with this Section 3.01.
(b) Notwithstanding exclude the foregoing, the Company may exclude an Observer from access to any material or meeting or portion thereof if:
(i) if the Board concludes in good faith, Company believes upon advice of the Company’s outside legal counsel, (A) counsel that such exclusion is reasonably necessary to preserve the attorney-client privilege between the privilege.
(vii) The Company shall pay all reasonable and its counselor or (B) that an documented out-of-pocket expenses incurred by each Observer has a potential conflict of interest; provided, however, that any such exclusion shall apply only to such portion in connection with attending regular and special meetings of the material or such portion Board 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 an Observer (assuming such Observer were a member of the Board) would not meet the then-applicable standards for independence adopted by the New York Stock Exchange (the “NYSE”), or such other exchange on which the Company’s securities are then tradedDirectors.
Appears in 1 contract
Samples: Shareholder Agreement (Hygo Energy Transition Ltd.)
