Common use of Right to Appoint Observer Clause in Contracts

Right to Appoint Observer. Holdings agrees that: (a) the Lender shall have the option and right to appoint one (1) representative (the “Observer”) to attend all meetings of the Board or any committee thereof in a non-voting, non-participating observer capacity; (b) any Observer appointed pursuant to this Section 5.9 may observe discussions of all matters brought to the Board or any committee thereof for consideration, but in no event shall the Observer (i) be deemed to be member of the Board or any committee thereof, (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdings, the Borrower or any other Guarantors or their respective Affiliates or investors, or (iii) have the right to participate in any discussions, vote on, propose or offer any motions or resolutions to the Board or any committee thereof, or in any manner give instructions or directions to the Board, any committee thereof or any member thereof or determine Holdings’, the Borrower’s or any of the other Guarantors’ policies or business decisions; (c) Holdings shall provide to the Observer copies of any notices, minutes and consents, including draft versions, proposed written consents and exhibits and annexes to any such materials, in each case, to the extent provided to the Board members in their capacity as such (collectively, “Board Materials”), at substantially the same time and in the same manner as such information is delivered to the members of the Board; (d) the presence of the Observer shall not be taken into account or required for purposes of establishing a quorum; and (e) Holdings shall reimburse Lender for reasonable out of pocket expenses of the Observer (including, without limitation, expenses relating to attending board meetings or other events pertaining to the Borrower that such Observer attends); provided, however, that Holdings may withhold information and exclude the Observer from any meeting or portion thereof if the Board determines in good faith and upon the advice of counsel that such exclusion is necessary to preserve the attorney-client privilege or to avoid a conflict of interest. Holdings shall indemnify and provide for the advancement of expenses to the Observer to the same extent provided by Holdings to its directors. Holdings acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by Holdings and do not constitute rights to indemnification or advancement as a result of the Observer serving as a director, officer, employee or agent of Holdings or its Affiliates.

Right to Appoint Observer. Holdings agrees that: (a) the Lender The Holder shall have the option and right be entitled to appoint one (1) representative Person (the “ObserverHolder Appointee”) to attend all meetings attend, as a non-voting observer, each meeting of the Board or any committee thereof in a non-votingof Directors, non-participating observer capacity; (b) any Observer appointed pursuant to this Section 5.9 may observe discussions of all matters brought to the Board or any committee thereof for consideration, but in no event shall the Observer (i) be deemed to be member of the Board or any committee thereof, (ii) have whether such meeting is conducted in person or by telephone. The Holder Appointee shall be deemed entitled to havereceive, or otherwise be subject to, any duties (fiduciary or otherwise) with respect to Holdings, the Borrower or any other Guarantors or their respective Affiliates or investors, or (iii) have the right to participate in any discussions, vote on, propose or offer any motions or resolutions to each meeting of the Board of Directors or any committee thereof: (a) (i) written notice of each regular meeting at least ten (10) days in advance thereof and (ii) written notice of each special meeting at least two (2) Business Days in advance of such meeting, or but, in any manner give instructions case involving any such regular or directions to special meeting, such notice shall be delivered no later than the Board, any committee thereof or any member thereof or determine Holdings’, date on which the Borrower’s or any members of the Board of Directors or the committee, as applicable, are notified of such meeting, and (b) any and all information provided in connection with each such meeting to all other Guarantors’ policies or business decisions; (c) Holdings shall provide to the Observer copies potential attendees of any notices, minutes and consents, including draft versions, proposed written consents and exhibits and annexes to any such materialsmeeting, in each case, to case at the extent time and in the same manner as provided to such other attendees. Additionally, the Board members in their capacity as such (collectivelyHolder Appointee shall receive copies of all other notices, “Board Materials”)minutes, consents and other material items that the Company provides to its directors at substantially the same time and in the same manner as provided to such information is delivered to directors. The Holder Appointee shall receive reimbursement from the members Company for any and all reasonable out-of-pocket expenses incurred in connection with attending any and all meetings of the Board; (d) Board of Directors or any committee thereof. The Holder shall be entitled to fill any vacancy caused by the presence resignation, death or removal of the Observer shall not be taken into account or required for purposes of establishing a quorum; and (e) Holdings shall reimburse Lender for reasonable out of pocket expenses of the Observer (including, without limitation, expenses relating to attending board meetings or other events pertaining to the Borrower that such Observer attends); provided, however, that Holdings may withhold information and exclude the Observer from any meeting or portion thereof if the Board determines in good faith and upon the advice of counsel that such exclusion is necessary to preserve the attorney-client privilege or to avoid a conflict of interest. Holdings shall indemnify and provide for the advancement of expenses to the Observer to the same extent provided by Holdings to its directors. Holdings acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by Holdings and do not constitute rights to indemnification or advancement as a result of the Observer serving as a director, officer, employee or agent of Holdings or its Affiliatesprior Holder Appointee.

Right to Appoint Observer. Holdings agrees that: (a) From the Lender Effective Date through the date upon which a Business Combination is consummated, upon notice from Xxxx Capital to the Company, Xxxx Capital shall have the option and right to appoint one (1) send a representative (who need not be the “Observer”same individual from meeting to meeting) to attend all observe each meeting of the Board of Directors of the Company; provided that such representative shall sign a Regulation FD compliant confidentiality agreement which is reasonably acceptable to Xxxx Capital and its counsel in connection with such representative’s attendance at meetings of the Board or any committee thereof in a non-voting, non-participating observer capacityof Directors; (b) any Observer appointed pursuant and provided further that upon written notice to this Section 5.9 may observe discussions of all matters brought to the Board or any committee thereof for consideration, but in no event shall the Observer (i) be deemed to be member of the Board or any committee thereof, (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to HoldingsXxxx Capital, the Borrower or any other Guarantors or their respective Affiliates or investorsCompany may exclude the representative from meetings where, or (iii) have in the right to participate in any discussions, vote on, propose or offer any motions or resolutions to written opinion of counsel for the Board or any committee thereof, or in any manner give instructions or directions to the Board, any committee thereof or any member thereof or determine Holdings’Company, the Borrowerrepresentative’s or any of the other Guarantors’ policies or business decisions; (c) Holdings shall provide to the Observer copies of any noticespresence would , minutes and consents, including draft versions, proposed written consents and exhibits and annexes to any such materials, in each case, to the extent provided to the Board members in their capacity as such (collectively, “Board Materials”), at substantially the same time and in the same manner as such information is delivered to the members of the Board; (d) the presence of the Observer shall not be taken into account or required for purposes of establishing a quorum; and (e) Holdings shall reimburse Lender for reasonable out of pocket expenses of the Observer (including, without limitation, expenses relating to attending board meetings or other events pertaining to the Borrower that such Observer attends); provided, however, that Holdings may withhold information and exclude the Observer from any meeting or portion thereof if the Board determines in good faith and upon the advice of counsel that such exclusion is necessary to preserve 2005 destroy the attorney-client privilege or privilege. The Company agrees to avoid a conflict give Xxxx Capital written notice of interest. Holdings shall indemnify each such meeting and to provide for Xxxx Capital with an agenda and minutes of the advancement of expenses meeting no later than it gives such notice and provides such items to the Observer other directors, and reimburse the representative of Xxxx Capital for its reasonable out-of-pocket expenses incurred in connection with its attendance at the meeting, including but not limited to, food, lodging and transportation. The Company further agrees that, prior to the same extent provided by Holdings consummation of the Business Combination, it shall schedule no less than four (4) meetings of its Board of Directors in each such year at which meetings a representative of Xxxx Capital shall be permitted to its directorsattend or otherwise participate as set forth herein. Holdings acknowledges Such meetings shall be held quarterly each year and agrees that the foregoing rights ten (10) days advance notice of such meetings shall be given to indemnification and advancement of expenses constitute third-party rights extended Xxxx Capital. Further, prior to the Observer by Holdings and do not constitute rights to indemnification or advancement as a result consummation of the Observer serving as a directorBusiness Combination, officerthe Company shall give prompt written notice to Xxxx Capital of any proposed Business Combinations or other acquisitions, employee mergers, reorganizations or agent of Holdings or its Affiliatessimilar transactions.

Right to Appoint Observer. Holdings agrees that: The Company will, for a period of two (a2) years following the Lender shall have Closing of the option and right to appoint one Offering, engage a designee of the Representative as an observer (1) representative (the “Observer”) to its board of directors (the “Board”) where such Observer shall attend all meetings of the Board or any committee thereof in a non-voting, non-participating observer capacity; (b) any Observer appointed pursuant to this Section 5.9 may observe discussions of all matters brought to the Board or any committee thereof for consideration, but in no event shall the Observer (i) be deemed to be member of the Board or any committee thereof, (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdings, the Borrower or any other Guarantors or their respective Affiliates or investors, or (iii) have the right to participate in any discussions, vote on, propose or offer any motions or resolutions to the Board or any committee thereof, or in any manner give instructions or directions to the Board, any committee thereof or any member thereof or determine Holdings’, receive all notices and other correspondence and communications sent by the Borrower’s or any of the other Guarantors’ policies or business decisions; (c) Holdings shall provide Company to the Observer copies of any notices, minutes and consents, including draft versions, proposed written consents and exhibits and annexes to any such materials, in each case, to the extent provided to the Board members in their capacity as such (collectively, “Board Materials”), at substantially the same time and in the same manner as such information is delivered to the members of the Board; (d) the presence of the provided, that such Observer shall not be taken into account entitled to any compensation, other than reimbursement for costs incurred in attending such meetings including, food, lodging and transportation and shall sign a confidentiality agreement. The Company further agrees that, during such two (2) year period, it shall schedule no less than four (4) meetings of the Board in each such year, at which meetings such Observer shall be permitted to attend or required otherwise participate as set forth herein; such meetings shall be held quarterly each year. Further, during such two (2) year period, the Company shall give notice to the Representative with respect to any proposed acquisitions, mergers, reorganizations or other similar transactions. In lieu of Representative’s right to designate an Observer, Maxim shall have the right during such three-year period, in its sole discretion, to designate one person for election as a director (“Director”) of the Company and the Company will utilize its reasonable best efforts to obtain the election of such person who shall be entitled to receive compensation equal to the compensation of other non-employee directors, excluding for the purposes of establishing a quorum; and (e) Holdings shall reimburse Lender for reasonable out determining the amount of pocket expenses such other person whose compensation, the Chairperson of any committee of the Observer Company’s Board and any such other person whose compensation exceeds the average compensation of the remaining eligible board members by 10%. In addition, such Director shall be entitled to receive the same expense reimbursements and other benefits as any other non-employee director. Representative agrees that any such person that it designates for election as a Director hereunder will be “independent” as that term is defined by either: (includingi) the by-laws of the NCM, without limitationif the Company’s securities are listed for trading on NCM at the time of such designation, expenses relating or (ii) as defined by the American Stock Exchange Rules, if the securities are listed for trading on the AMEX at the time of such designation. In the event that the Company’s securities are neither listed on the NCM or AMEX at the time of such designation, any such Director will meet the independence requirements of the Sarb-Ox. The Company agrees to attending board meetings or other events pertaining to the Borrower that indemnify and hold such Observer attends); provided, however, that Holdings may withhold information and exclude the Observer from any meeting or portion thereof if the Board determines in good faith and upon the advice of counsel that such exclusion is necessary to preserve the attorney-client privilege or to avoid a conflict of interest. Holdings shall indemnify and provide for the advancement of expenses to the Observer Director harmless to the same extent provided by Holdings to its directors. Holdings acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by Holdings and do not constitute rights to indemnification or advancement as a result other directors of the Observer serving Company pursuant to the Company’s Certificate of Incorporation and applicable law against any and all claims, actions, damages, costs and expenses, and judgments arising solely out of the attendance and participation of the Director at any such meeting described herein. Additionally, the Company shall maintain a liability insurance policy affording coverage for the acts of its officers and directors for a period of at least two (2) years from the Closing, and it agrees, if possible, to include Representative’s designee as a director, officer, employee or agent of Holdings or its Affiliatesan insured under such policy.

Right to Appoint Observer. Holdings agrees that: (a) the Lender Lenders shall have the option and right to appoint one (1) representative (the “Observer”) to attend all meetings of the Board or any committee thereof in a non-voting, non-participating observer capacity; (b) any Observer appointed pursuant to this Section 5.9 may observe discussions of all matters brought to the Board or any committee thereof for consideration, but in no event shall the Observer (i) be deemed to be member of the Board or any committee thereof, (ii) have or be deemed to have, or otherwise be subject to, any duties (fiduciary or otherwise) to Holdings, the Borrower or any other Guarantors or their respective Affiliates or investors, or (iii) have the right to participate in any discussions, vote on, propose or offer any motions or resolutions to the Board or any committee thereof, or in any manner give instructions or directions to the Board, any committee thereof or any member thereof or determine Holdings’, the Borrower’s or any of the other Guarantors’ policies or business decisions; (c) Holdings shall provide to the Observer copies of any notices, minutes and consents, including draft versions, proposed written consents and exhibits and annexes to any such materials, in each case, to the extent provided to the Board members in their capacity as such (collectively, “Board Materials”), at substantially the same time and in the same manner as such information is delivered to the members of the Board; (d) the presence of the Observer shall not be taken into account or required for purposes of establishing a quorum; and (e) Holdings shall reimburse Lender Administrative Agent for reasonable out of pocket expenses of the Observer (including, without limitation, expenses relating to attending board meetings or other events pertaining to the Borrower that such Observer attends); provided, however, that Holdings may withhold information and exclude the Observer from any meeting or portion thereof if the Board determines in good faith and upon the advice of counsel that such exclusion is necessary to preserve the attorney-client privilege or to avoid a conflict of interest. Holdings shall indemnify and provide for the advancement of expenses to the Observer to the same extent provided by Holdings to its directors. Holdings acknowledges and agrees that the foregoing rights to indemnification and advancement of expenses constitute third-party rights extended to the Observer by Holdings and do not constitute rights to indemnification or advancement as a result of the Observer serving as a director, officer, employee or agent of Holdings or its Affiliates.