Common use of Observer Rights Clause in Contracts

Observer Rights. The Company acknowledges and agrees that for so long as Tontine and/or its affiliates retain over 50% of its shares of Common Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member of the Board, Tontine shall have the right to designate one person who is either an employee of Tontine or is otherwise reasonably acceptable to the Board (the “Designee”) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer Rights, the Company shall invite the Designee to attend any meetings of the Board of Directors of the Company and any committees thereof (at the same time directors are invited thereto) and provide the Designee with such materials (at the same time such materials are provided to directors) as the Company provides to directors in connection with their service on the Board and any committees thereof, provided that the Designee need not be permitted to attend any portion of any such meeting or be provided with any portion of such materials to the extent that so doing would jeopardize any legal privilege, including the attorney-client privilege, and to the extent the subject of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the 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 or any committee thereof. The Company will not be responsible for any expenses of the Observer’s attendance at such meetings.

Observer Rights. The Company acknowledges and agrees that for so long as Tontine and/or its affiliates retain over 50% shall give EMC written notice of its shares of Common Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member each meeting of the Board, Tontine shall have Board of Directors and each committee thereof at least at the right to designate one person who same time and in the same manner as notice is either an employee of Tontine or is otherwise reasonably acceptable given to the Board (the “Designee”) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer Rightsdirectors, and the Company shall invite the Designee permit a representative of EMC to attend any as a non-voting observer all meetings of the Board of Directors and all committees thereof. The Company shall deliver to the representative of the Company EMC all written materials and any committees thereof other information (at the same time including without limitation copies of meeting minutes) given to directors are invited thereto) and provide the Designee in connection with such materials (meetings at the same time such materials and information are provided given to the directors) . EMC understands and acknowledges that the Board of Directors (or a committee of the Board of Directors, as the Company provides case may be) shall have and reserve the right to directors in connection with their service on exclude the Board and any committees thereof, provided that the Designee need not be permitted to attend observer from all or any portion of any a meeting to the extent (i) necessary to preserve attorney client privilege or (ii) the Board of Directors (or such meeting or be provided with any portion committee), in its sole discretion, deems the presence of such materials observer to be inconsistent with the Company's goal of adhering to best practices of corporate governance or otherwise inadvisable under then-current laws, rules, regulations, including any guidelines and interpretations thereof set forth or proposed by Nasdaq or any exchange on which the Common Stock is then traded. The Company shall use its best efforts to provide such observer with as much advance notice as is reasonably practicable of such need for exclusion. If any action is proposed to be taken by written consent in lieu of a meeting of the Board of Directors or any committee thereof, the Company shall give written notice thereof to EMC on or before the effective date of such consent describing in reasonable detail the nature and substance of such proposed action. If and to the extent that so doing would jeopardize any legal privilegethe board of directors of a Subsidiary shall be expanded and include the Series A Director, including pursuant to Section 3.1(c), then the attorney-client privilegeCompany shall cause the applicable Subsidiary to provide to EMC the same rights with respect to such Subsidiary as provided by the Company to EMC hereunder. Notwithstanding the foregoing, (a) the observer rights granted pursuant to this Section 3.3 shall be subject to EMC and the observer complying with the Company Policies, and (b) EMC agrees, and any EMC observer will agree, to hold in confidence all confidential information concerning the Company provided to EMC or learned by EMC in connection with its rights under this Section 3.3, using the same degree of care as EMC uses to protect its own confidential information, except to the extent the subject of such meeting or materials otherwise required by law and any other regulatory process to which EMC is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the 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 or any committee thereof. The Company will not be responsible for any expenses of the Observer’s attendance at such meetingssubject.

Observer Rights. The Company further acknowledges and agrees that commencing on the Closing Date and for so long as Tontine and/or its affiliates retain over 50% Affiliates own at least ten percent (10%) of its the outstanding shares of Common Stock held immediately after (including the Closing under Section 2, if no employee of Tontine is serving as a member Conversion Shares issuable upon Conversion of the BoardNotes on an as converted basis), Tontine shall have the right to designate one person Person who is either an employee of Tontine or is otherwise reasonably acceptable to the Board (the “Designee”) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer Rights, the Company shall invite the Designee to attend any meetings of the Board of Directors of the Company and any committees thereof (at the same time directors are invited thereto) and provide the Designee with such materials (at the same time such materials are provided to directors) as the Company provides to directors in connection with their service on the Board and any committees thereof, provided that the Designee need not be permitted to attend (i) any portion of any such meeting or be provided with any portion of such materials to the extent that so doing would jeopardize any legal privilege, including the attorney-client privilege, and to the extent the subject of such meeting or materials is potentially adverse to TontineTontine and (ii) any portion of any such meeting attended only by the members of the Board in executive session. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the 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 or any committee thereof. The Company will not be responsible shall promptly reimburse the Designee for any all reasonable expenses of incurred in connection with the ObserverDesignee’s attendance at such meetings.

Observer Rights. The Company acknowledges and agrees that for so long as Tontine and/or its affiliates retain over 50% of its shares of Common Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member of the Board, Tontine Each Qualified Member shall have the right to designate one person who is either an employee of Tontine or is otherwise reasonably acceptable to the (1) natural Person (each, a “Board (the “DesigneeObserver”) to act as an observer to the Board as provided below attend (“Observer Rights”). During in person or telephonically, at such time as Tontine has Observer Rights, the Company shall invite the Designee to attend any meetings Person’s option) each meeting of the Board and the board of Directors directors of each of the Company Company’s Significant Subsidiaries and any committees thereof (at the same time directors are invited thereto) and provide the Designee with committee of any such materials (at the same time board of directors; provided that such materials are provided to directors) as Qualified Member will notify the Company provides from time to directors in connection with their service on time of the identity of such Qualified Member’s Board Observer and such Board Observer’s address (including facsimile number) for notice and other communications; provided, further, that any Board Observer may be excluded from any such meeting to the extent that the Board and or Sub Board (or such committee) determines in good faith that such exclusion is required to preserve any committees thereof, provided that the Designee need not be permitted to attend evidentiary privilege or any portion of any such meeting during which the respective interests of the Company and its Subsidiaries and those of the Qualified Member in question, as to the matter(s) to be discussed or actions to be provided with any taken during such portion of such materials to meeting, conflict (in the extent that so doing would jeopardize any legal privilege, including the attorney-client privilege, and to the extent the subject of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the Company providing for Tontine’s and the Designee’s preservation of the confidentiality of any materials provided or information received at any meeting good faith judgment of the Board or any committee thereofsuch Sub Board). The Company will not send, or cause to be responsible for any expenses sent, to each Qualified Member the notice of the Observer’s attendance time and place of any such meeting in the same manner and at the same time as notice is sent to the members of the Board, such meetingsSub 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 or 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 from and attending such meetings of the Board, each such Sub Board or any committees thereof.

Observer Rights. The Company acknowledges and agrees that for For so long as Tontine and/or its affiliates retain over 50at least 50.1% of its the shares of Common Preferred Stock held immediately after outstanding on the Closing under Section 2date hereof remain outstanding and beneficially owned by Olympus, if no employee of Tontine is serving as a member of the Board, Tontine shall have the Olympus fails to designate directors or terminates its right to designate one person who is either an employee directors pursuant to Section 2.1.1, Olympus shall be entitled to, in lieu of Tontine or is otherwise reasonably acceptable to the designating such Board (the “Designee”) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer RightsDesignees, the Company shall invite the Designee to have two designees attend any all meetings of the Board of Directors of and each committee thereof (each, an "Observer Designee"). In the event that Olympus has designated any Observer Designee pursuant to this Section 2.1.2, Olympus and each such Observer Designee shall enter into a confidentiality agreement with the Company in form and substance reasonably satisfactory to each of Olympus and the Company. No Observer Designee shall be entitled to vote on any committees thereof (matters presented to the Board of Directors or to such committees. The Company shall give written notice, including any proposed agenda to Olympus, of each such meeting at the same time and in the same manner as the members of the Board of Directors (or any committee thereof) receive notice of such meetings. Olympus shall be entitled to receive all written materials and other information given to the directors are invited thereto) and provide of the Designee Company in connection with such materials (meetings at the same time such materials are provided given to such directors) as . If the Company provides proposes to directors take action by written consent in connection with their service on lieu of a meeting of the Board of Directors, the Company shall (i) orally notify Olympus 72 hours in advance of the date such consent is first proposed to be executed by the directors of the Company, and (ii) give a copy of such consent to Olympus at the same time as such materials are given to the members of the Board of Directors, which in any committees case shall be at least 24 hours prior to the date such consent is first proposed to be executed by the directors of the Company. Notwithstanding the foregoing provisions of this Section 2.1.2, the Company reserves the right not to provide information or to exclude Observer Designees from portions of any meeting of the Board of Directors (or committee thereof, provided that the Designee need not be permitted to attend any ) if (i) delivery of such information or attendance at such portion of any such meeting or be provided with any portion by the Observer Designees would, in the opinion of such materials counsel to the extent that so doing would jeopardize any legal privilegeCompany, including cause the Company to lose or waive the attorney-client privilegeprivilege between the Company and its counsel, or (ii) the subject matter of such information or agenda of such portion of any meeting is reasonably related to consideration of the Company's relationship with Olympus or any of its Affiliates or any transaction between the Company or any of its Affiliates on the one hand, and to Olympus or any of its Affiliates on the extent other hand, and the subject delivery of such information or attendance at any such portion of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine would, in the opinion of Observer Rights is conditioned upon counsel of the Company’s receipt , adversely affect the ability of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the Company providing for Tontine’s or its Affiliate to negotiate in good-faith and on an arms-length basis with Olympus or its Affiliate. In the Designee’s preservation event the Company withholds information or excludes an Observer Designee from a portion of the confidentiality of any materials provided or information received at any meeting of the Board or any committee thereof. The of Directors pursuant to the preceding sentence, the Company will not be responsible for any expenses shall provide Olympus with a written statement identifying the subject matter of the Observer’s attendance at information withheld or discussion from which the Observer Designee was excluded (which notice need not include any description of the legal advice rendered during such meetingsmeeting).

Observer Rights. The Company acknowledges and agrees that for so long as Tontine and/or its affiliates retain over 50% shall give to BBV notice of its shares of Common Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member each meeting of the Board, Tontine shall have Board of Directors of the right to designate one person who Company and its subsidiaries and of each committee thereof at the same time and in the same manner as notice is either an employee of Tontine or is otherwise reasonably acceptable given to the directors of the Company or any such subsidiary. If no designee of BBV shall then be serving on the Board of Directors of the Company, one (the “Designee”1) designee of BBV shall be entitled to act attend in person or by telephone, as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer Rightsobserver, the Company shall invite the Designee to attend any all meetings of the Board of Directors of the Company and any committees thereof (each of its subsidiaries and of each committee thereof. The Company shall provide to BBV in connection with each meeting its respective observer designee is entitled to attend, whether or not present at such meeting, copies of all notices, minutes, consents, and all other materials or information that it provides to the same time directors are invited thereto) and provide of the Designee applicable company with respect to such materials (meeting, at the same time such materials and information are given to the directors of such company (except that materials and information provided to directors) as directors of the Company provides or any such subsidiary at meetings at which a designee of BBV is not present (in person or by telephone) may be provided to directors in connection with their service on BBV promptly after the meeting). If the Board and any committees thereof, provided that the Designee need not be permitted to attend any portion of Directors of any such meeting or be provided with any portion of such materials to the extent that so doing would jeopardize any legal privilege, including the attorney-client privilege, and to the extent the subject of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the Company providing for Tontine’s and the Designee’s preservation or any of the confidentiality of any materials provided or information received at any meeting of the Board its subsidiaries or any committee thereof proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to BBV prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. Notwithstanding anything herein to contrary, if pursuant to applicable law or regulations (or prevailing interpretation thereof. The Company will not be responsible for any expenses ), either the JPM Investors or Chase is prohibited (or reasonably believes it is prohibited) from designating a director to the Board of Directors of the Observer’s attendance at Company and do not designate such meetingsa director, then the JPM Investors and/or Chase, as the case may be, shall be entitled to one (1) observer to the same extent as BBV.

Observer Rights. The Company acknowledges and agrees During any time that for so long as Tontine either JPMIC and/or its affiliates retain over 50% IAB has not designated at least one director on the Company's Board of its shares of Common Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member of the Board, Tontine shall have the right to designate one person who is either an employee of Tontine or is otherwise reasonably acceptable to the Board (the “Designee”) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer RightsDirectors, the Company shall invite give to JPMIC and/or IAB (as applicable) notice of each meeting of the Designee Board of Directors of the Company and/or its subsidiaries and of each committee thereof at the same time and in the same manner as notice is given to the directors (or their equivalent in the case of a partnership subsidiary) of the Company or such subsidiary. One (1) designee of JPMIC and/or one (1) designee of IAB (as applicable) shall be entitled to attend any in person, as an observer, all meetings held in person and to listen to telephone meetings of the Board of Directors of the Company and any committees each of its subsidiaries and of each committee thereof (solely for the purpose of allowing JPMIC and/or IAB to have current information with respect to the affairs of such Company. The Company shall provide to JPMIC and/or IAB in connection with each meeting its respective observer designee is entitled to attend, whether or not present at such meeting, copies of all notices, minutes, consents, and all other materials or information that it provides to the same time directors are invited thereto) and provide of the Designee applicable Company with respect to such materials (meeting, at the same time such materials and information are given to the directors of such Company (except that materials and information provided to directors) as directors of the Company provides or such subsidiary at meetings at which a designee of JPMIC and/or IAB is not present shall be provided to directors in connection with their service on JPMIC and/or IAB, as applicable, promptly after the meeting). If the Board and any committees thereof, provided that the Designee need not be permitted to attend any portion of Directors of any such meeting or be provided with any portion of such materials to the extent that so doing would jeopardize any legal privilege, including the attorney-client privilege, and to the extent the subject of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the Company providing for Tontine’s and the Designee’s preservation of the confidentiality of or any materials provided or information received at any meeting of the Board subsidiary or any committee thereofthereof proposes to take any action by written consent in lieu of a meeting, the Company shall give written notice thereof to JPMIC and/or IAB prior to the effective date of such consent describing in reasonable detail the nature and substance of such action. The Company will not be responsible for any shall bear all travel and related expenses incurred by the observer designees of the Observer’s attendance at such JPMIC and/or IAB associated with attending meetings.

Observer Rights. 1.1 The Company acknowledges grants to the Shareholder the option and agrees right to appoint a representative reasonably acceptable to the Company (the “Observer”) to attend Board meetings (including telephonic or videoconference meetings and meetings held in executive session) of the Board in a non-voting, observer capacity; provided that for so long any such representative shall have executed and delivered to the Company a copy of the Acknowledgement and Agreement to be Bound in the form attached hereto as Tontine and/or its affiliates retain over 50% of its shares of Common Stock held immediately after Exhibit A (the Closing under Section 2, if “Acknowledgement”). In no employee of Tontine is serving as event shall the Observer (i) be deemed to be a member of the Board; (ii) without limitation of the obligations expressly set forth in this Agreement or the Acknowledgement, Tontine shall have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to the Company or its shareholders (aside from those set forth herein); or (iii) have the right to designate one person who propose or offer any motions or resolutions to the Board. The presence of the Observer shall not be required for purposes of establishing a quorum. The Observer is either an employee permitted to attend any general meeting of Tontine or the Company as a representative of the Shareholder with advance written notice to the Company. 1.2 The Company will provide to the Observer copies of all notices, minutes, consents and other materials (including, for the avoidance of doubt, correspondence) that it provides to Board members (collectively, “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 otherwise reasonably acceptable delivered to the Board members. For the avoidance of doubt, any failure to (the “Designee”i) to act as an observer to the Board as provided below (“Observer Rights”). During such time as Tontine has Observer Rights, the Company shall invite the Designee to attend provide notice of any meetings of the Board or committees thereof, or (ii) provide Board Materials to the Observer, shall not invalidate any proceedings or actions taken by the Board, such matters being governed by the articles of Directors association of the Company and any committees thereof English law. The Company makes no express or implied warranty or representation concerning its Board Materials, Confidential Information (at as defined in Section 4.2) or other information supplied to the same time directors are invited thereto) and provide Observer, including but not limited to the Designee with accuracy or completeness of such materials (at information. 1.3 Notwithstanding anything herein to the same time such materials are provided to directors) as contrary, the Company provides may exclude the Observer from access to directors in connection with their service on any Board Materials, meeting or portion thereof if the Board and any committees thereofconcludes, provided acting in good faith, that the Designee need not be permitted (i) such exclusion is reasonably necessary to attend any portion of any such meeting or be provided with any portion of such materials to the extent that so doing would jeopardize any legal privilege, including preserve the attorney-client privilegeor work product privilege between the Company or its affiliates and its counsel (provided, and however, that any such exclusion shall only apply to the extent the subject such portion of such material or meeting which would be required to preserve such privilege); (ii) such Board Materials or materials is potentially adverse discussion relates to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory to the 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 its affiliates’ relationship, contractual or any committee thereof. The Company will not be responsible for any expenses of the Observer’s attendance at such meetings.otherwise, with the

Observer Rights. The Company acknowledges At any time EIS or an affiliate does not have a designee sitting on the Company's board of directors pursuant to the rights granted under the Company's Certificate of Incorporation (as qualified by Section 6(a)(i) above), EIS or an affiliate, if it then holds a majority of the issued and agrees that for so long as Tontine and/or its affiliates retain over 50% of its outstanding shares of Common Special Stock held immediately after the Closing under Section 2, if no employee of Tontine is serving as a member and at least ten percent (10%) of the Boardcapital stock of the Company, Tontine shall have the right be entitled to designate one person who is either an employee of Tontine or is otherwise reasonably acceptable to the Board (the “Designee”) to act as appoint an observer to the Board as provided below Company's board of directors (“Observer Rights”such observer, the "Special Stock Representative"). During such time as Tontine has Observer Rights, The Special Stock Representative shall be entitled to receive the Company shall invite the Designee to attend same notice of any meetings of the Board Company's board of Directors directors as each member of the Company Company's board of directors shall receive, attend meetings of the Company's board of directors as an observer and any committees thereof shall be provided all information otherwise made available to the members of the Company's board of directors; provided that, with regard to the Special Stock Representative's status as an observer, (at the same time directors are invited thereto1) and provide the Designee with such materials (at the same time such materials are provided to directors) as the Company provides may exclude the Special Stock Representative from access to directors in connection with their service on the Board and any committees material or board meeting or any portion thereof, provided if the Company believes upon the advice of counsel that such exclusion is reasonably necessary to preserve the Designee need attorney client privilege; (2) the Special Stock Representative shall not be permitted to attend vote at any portion of any such meeting Company board meetings or be provided with any portion counted for purposes of such materials determining whether there is a sufficient quorum for the board to conduct its business; and (3) the Special Stock Representative shall agree to hold in confidence and trust and shall execute the Company's standard form nondisclosure and confidentiality agreement so agreeing not to trade on the basis of material non-public information acquired from the Company or to disclose to third parties or use for purposes inimical to the extent that so doing would jeopardize Company's best interests any legal privilege, including information provided to or learned by it in connection with the attorney-client privilege, rights provided under this Section 6(a)(ii). The rights granted under this Section 6(a)(ii) shall terminate and be of no further force or effect upon such time as EIS or an affiliate is no longer entitled to nominate and elect one member to the extent the subject Company's board of such meeting or materials is potentially adverse to Tontine. The exercise by Tontine of Observer Rights is conditioned upon the Company’s receipt of a confidentiality agreement executed by Tontine and the Designee reasonably satisfactory directors pursuant to the 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 or any committee thereof. The Company will not be responsible for any expenses of the Observer’s attendance at rights granted to such meetingsholder."