BOARD OBSERVER AGREEMENT
Exhibit 10.13
Execution Version
THIS
BOARD OBSERVER AGREEMENT (this “Agreement”), dated
as of September 29, 2009, is
made by and between AEI, a Cayman Islands company (the “Company”), and Xxxxxxx Investment
Management Limited as agent for and on behalf of the various funds and accounts to which it is
appointed as investment manager or adviser (“Xxxxxxx”).
WHEREAS, certain funds that have appointed Xxxxxxx as their investment advisor currently hold
a significant portion of the outstanding ordinary shares of the Company;
WHEREAS, the Company and Xxxxxxx desire to provide herein for certain matters relating to the
corporate governance of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements
contained herein, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
“Affiliate” shall mean, with respect to a Person (as hereinafter defined), any other
Person that, directly or indirectly controls, is controlled by, or is under common control with
such person.
“Board” shall have the meaning set forth in Section 2 hereof.
“Confidential Information” shall have the meaning set forth in Section 5 hereof.
“Observer” shall have the meaning set forth in Section 2 hereof.
“Person” shall mean any natural person, corporation, limited partnership, limited
liability company, general partnership, joint stock company, joint venture, association, company,
trust, bank, trust company, land trust, business trust or other organization, whether or not a
legal entity.
2. Right to Appoint Board Observers. The Company hereby agrees that Xxxxxxx shall
have the right to designate representatives to attend meetings of the Board of Directors of the
Company (the “Board”) or any committee thereof as non-voting observers (each, an
“Observer”). Each Observer shall be an employee or agent of Xxxxxxx or an Affiliate of
Xxxxxxx. Subject to the provisions of Section 4 and 5 hereof, each Observer shall have the right:
(i) to attend in a non-voting capacity any meeting of the Board or any committee thereof, whether
in person or telephonically, and (ii) to receive (and shall be provided concurrently with its
delivery to the members of the Board with) all notices of Board and Board committee meetings, all
Board and Board committee packages and all other information distributed to the members of the
Board in connection with such meetings. Any failure to deliver notice to an Observer in connection
with such Observer’s right to attend any meeting of the Board or a committee thereof shall not
impair the validity of any action taken by the Board or committee, as applicable, at such meeting.
Observers shall not have any voting rights that the directors of the Company have and shall not be
subject to any fiduciary duties applicable to the directors of the Company, and shall owe their
duties solely to Xxxxxxx.
3. Actions in Lieu of a Meeting. Subject to the provisions of Sections 4 and 5
hereof, the Observers shall be entitled to receive copies of any action taken by a consent in lieu
of a meeting of the Board within 10 days after the date of such consent. Notice of such consent
shall be given to the Observers concurrently with the distribution of the request for such consent
to the members of the Board, provided that failure to give such notice or deliver a copy of any
such consent to an Observer shall not, of itself, impair the validity of any action taken by the
Board pursuant to such consent.
4. Exceptions to Observer Rights. Notwithstanding anything to the contrary contained
herein, the Company shall have the right to withhold from an Observer written materials and other
information, including portions of the minutes of meetings of the Board or any committees thereof,
and exclude an Observer from any meeting of the Board or a committee, if the Board determines, in
its sole discretion, that the Observers’ access to such information (i) could jeopardize an
attorney-client privilege or result in (a) a breach by the Company of its obligations under any
agreement, arrangement or understanding or (b) a violation of any applicable law or (ii) is
necessary or appropriate in furtherance of discharging the Board’s fiduciary duties to the Company.
In addition, if the Board or any committee is considering any transaction in which Xxxxxxx or any
of its Affiliates has an existing interest, then the Company may withhold from the Observers
written materials and other information relating to such transaction and the Observers shall excuse
themselves from any portion of a meeting in which such transaction is discussed.
5. Confidentiality. Except with the prior written consent of the Company and except
as otherwise required by law, Xxxxxxx shall, and shall cause each of its Affiliates and the
Observers to (a) hold in strict confidence and trust all information relating to the Company or its
subsidiaries or their respective assets or operations that is provided to the Observers or to
Xxxxxxx by the Company or any officer or director thereof (the “Confidential
Information”), (b) not release or disclose in any manner whatsoever to any other Person any
Confidential Information, (c) use the Confidential Information solely in connection with its
Observer rights hereunder and not for any other purpose and (d) not use any Confidential
Information in violation of any applicable laws, including, without limitation, any applicable U.S.
federal or state securities laws; provided that (i) the foregoing provisions shall not apply to any
disclosure, to the extent reasonably required, to those of Xxxxxxx’x auditors, attorneys and other
representatives who agree to be bound by the provisions of this Section 5, (ii) the foregoing
provisions shall not apply where Xxxxxxx or any of its Affiliates or an Observer is compelled to
disclose Confidential Information by judicial or administrative process or, in the reasonable
opinion of its counsel, by other requirements of law (provided that, if legally permissible, prior
written notice of such disclosure is given to the Company so that the Company may take action to
prevent such disclosure and any such disclosure is limited to only that portion of the Confidential
Information which such Person is compelled to disclose), and (iii) the term “Confidential
Information” shall not include information (A) which is or becomes generally available to the
public other than as a result of disclosure of such information by Xxxxxxx, any of its Affiliates
or an Observer or (B) becomes available to the recipient of such information on a non-confidential
basis from a source which is not, to the recipient’s knowledge, bound by a confidentiality or other
similar agreement, or by any other legal, contractual or fiduciary obligation which prohibits
disclosure of such information to the other parties hereto.
6. Term; Termination. The rights and obligations of the parties hereunder shall
continue in effect until such time as (i) the Board, in its sole discretion, determines to
terminate this Agreement and revoke Xxxxxxx’x right to appoint Observers or (ii) this Agreement is
terminated by Xxxxxxx. All rights and obligations of the parties hereto shall terminate
concurrently with the termination of this Agreement, except for the confidentiality restrictions
set forth in Section 5 which shall survive for a period of one year from termination.
7. Assignment. This Agreement and the rights and obligations hereunder may not be
assigned by Xxxxxxx without the prior written consent of the Company and any purported or attempted
assignment without such consent shall be void and of no force and effect.
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8. Observers. The parties hereby confirm that each of Xxxx Xxxxxx and Xxxxx xx Xxxx
would be acceptable to the Company if appointed as an Observer. Xxxxxxx may designate another
employee or agent of Xxxxxxx or its Affiliate to serve as an Observer upon written notice to the
Company (it being understood that notice by email is sufficient for this purpose).
9. Destruction of Confidential Materials. Xxxxxxx hereby agrees that at any time,
upon the request of the Company, it will promptly deliver to the Company or destroy any and all
Confidential Information that has been previously provided to Xxxxxxx, except that one copy of any
such Confidential Information may be retained for Xxxxxxx’x records. Notwithstanding any such
return, destruction or retention of the Confidential Information, Xxxxxxx will continue to be bound
by the confidentiality restrictions set forth in Section 5 and other obligations hereunder for the
term specified herein.
10. Applicable Law. This Agreement shall be governed by, and construed in accordance
with, English law, without giving effect to the conflicts of law principles thereof.
11. Section Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning of terms contained herein.
12. Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the matters set forth herein and supersedes any
and all prior agreements, arrangements and understandings among the parties.
13. Severability of Provisions. If any provision of this Agreement shall be held
invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions
hereof shall not be affected thereby, and there shall be deemed substituted for the provision at
issue a valid, legal and enforceable provision as similar as possible to the provision at issue.
14. Effective Date. This Agreement shall become effective upon consummation of an
offering, involving not less than $400 million of gross proceeds (to the Company and/or its
shareholders), upon the completion of which ordinary shares of the Company will be listed on the
New York Stock Exchange, the American Stock Exchange, Nasdaq, London Stock Exchange, Sao Paulo
Stock Exchange or any other stock exchange agreed by the shareholders of the Company.
15. Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which shall constitute one and the same
instrument.
16. Notices. All notices, requests, demands and other communications hereunder shall
be in writing and shall be deemed to have been duly given if (i) delivered by and receipted for by
the party to whom said notice or other communication shall have been directed, (ii) sent by
nationally recognized overnight courier, or (iii) mailed by certified or registered mail with
postage prepaid, on the third business day after the date on which it is so mailed:
(a) If to Xxxxxxx, to:
Xxxxxxx Investment Management Limited
00 Xxxxxxx, 0xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxx Xxxxxxx
00 Xxxxxxx, 0xx Xxxxx
Xxxxxx XX0X 0XX
Xxxxxxx
Attention: Xxxxx Xxxxxxx
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(b) If to the Company, to:
With a copy to :
[The remainder of the page has been intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| AEI |
||||
| By | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| XXXXXXX INVESTMENT MANAGEMENT LIMITED As agent for and on behalf of the various funds accounts to which it is appointed as investment manager or adviser |
||||
| By | /s/ Xxxxx Xxxxxxx | |||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | General Counsel | |||
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