Common use of Board Observer Rights Clause in Contracts

Board Observer Rights. As long as the Investors continue to own more than fifteen percent (15%) of the Investor Shares, the Designated Investor shall be entitled at its option to (but shall not be obligated to) designate, by written notice to the Company, one individual as an observer to the Company’s board of directors, and all committees of the board of directors (the “Board Observer”). The Board Observer shall, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, be entitled to attend all meetings of the Company’s board of directors and any committees thereof, to be given advance notice of all meetings not later than the time notice is given to any member of the board of directors and to receive upon issuance to the members of the board of directors or any committees thereof any materials prepared for the members of the board of directors or committees thereof (but shall have no right to participate in such meetings). The Board Observer shall, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, be afforded to the same rights and privileges as the other members of the Company’s board of directors, other than the right to vote on matters brought before the members, including, without limitation, rights to indemnification, insurance, notice, information and the prompt reimbursement of expenses (but not the payment of directors fees). Notwithstanding anything to the contrary set forth in this subsection or elsewhere in this Agreement, the Company’s board of directors and each committee thereof shall have the absolute and unfettered right, exercisable at its sole and absolute discretion, to exclude such Board Observer from any meeting thereof.”

Board Observer Rights. As For so long as the Investors continue to own more General Electric Capital Equity Investments, Inc. ("GE Capital") holds no less than fifteen percent 50% (15%fifty percent) of the Investor Sharesshares of the Series F Stock purchased by GE Capital pursuant to the Series F Agreement and/or shares of Common Stock issued upon conversion thereof, the Designated Investor shall be entitled at its option Company will permit one representative of GE Capital to attend all meetings of (but shall not be obligated toi) designateBoard and (ii) any executive or similar committee of the Board and any other committee of the Board that the Board determines (from time to time) is appropriate for attendance of such representative (any such committee, by written notice a "Covered Committee"), in each case in a non-voting observer capacity; provided, however, that such representative is subject to the Companyapproval by the Board, one individual as such approval not to be unreasonably withheld; provided, further, that any such representative must be an observer employee of GE Capital or its affiliates (or an employee of any permitted assignee GE Capital of the rights under this Section 5.8); and, provided, further, that the Company reserves the right not to provide information and to exclude such representative from any meeting or portion thereof if, in the Board's judgment, GE Capital or its representative has a demonstrable conflict of interest with respect to the issue to be discussed or the presence of the representative could jeopardize the Company’s board 's attorney-client privilege. The Company agrees to provide GE Capital and any such designated representative notice of directorsall Board and Covered Committee meetings contemporaneous with the giving of such notice, and all committees in the same manner as such notice is given, to members of the board of directors (Board or the “Board Observer”). The Board Observer shallCovered Committee and, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, be entitled to attend all meetings of proviso in the Company’s board of directors and any committees thereofforegoing sentence, to be given advance notice of provide GE Capital and such representative all meetings not later than the time notice is given information provided to any member of the board of directors and to receive upon issuance to the members of the board of directors Board or any committees thereof any materials prepared for the members of the board of directors or committees thereof (but shall have no right Covered Committee contemporaneous with providing such information to participate in such meetings). The Board Observer shall, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, be afforded to the same rights and privileges as the other members of the Company’s board of directors, other than the right to vote on matters brought before the members, including, without limitation, rights to indemnification, insurance, notice, information and the prompt reimbursement of expenses (but not the payment of directors fees). Notwithstanding anything to the contrary set forth in this subsection or elsewhere in this Agreement, the Company’s board of directors and each committee thereof shall have the absolute and unfettered right, exercisable at its sole and absolute discretion, to exclude such Board Observer from any meeting thereof.”

Board Observer Rights. As For so long as Majority Holders shall have the Investors continue right to own more than fifteen percent designate: (15%i) of two nominees for election to the Board as Investor SharesDirectors pursuant to the terms hereof and no Investor Directors are then in office, the Designated Investor such holders shall be entitled at its option to (but shall not be obligated to) designate, by written notice designate two representatives to the Company, one individual as an observer to the Company’s board of directors, Board and all committees of the board of directors (the “Board Observer”). The Board Observer shall, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, such representatives shall be entitled to attend all meetings of the Company’s board Board in a nonvoting observer capacity; (ii) two nominees for election to the Board as Investor Directors pursuant to the terms hereof and one Investor Director is then in office, such holders shall be entitled to designate a representative to the Board and such representative shall be entitled to attend all meetings of directors the Board in a nonvoting observer capacity; and any committees thereof(ii) only one nominee for election to the Board as an Investor Director pursuant to the terms hereof and no Investor Director is then in office, such holders shall be entitled to designate a representative to the Board and such representative shall be given advance notice entitled to attend all meetings of the Board in a nonvoting observer capacity. The Company shall provide each such representative copies of all meetings not later than notices, minutes, consents and other materials that the time notice is given Company provides to any member of the board of its directors and to receive upon issuance to the members of the board of directors or any committees thereof any materials prepared for the members of the board of directors or committees thereof (but shall have no right to participate in such meetings). The Board Observer shall, subject to the last sentence of this subsection and any restrictions of The Nasdaq Global Market or applicable law, be afforded to at the same rights and privileges as the other members of the Company’s board of time provided to such directors, other than provided, however, that such representative shall agree to hold in confidence all information provided, and provided, further, that the right to vote on matters brought before the members, including, without limitation, rights to indemnification, insurance, notice, Company may withhold any information and the prompt reimbursement of expenses (but not the payment of directors fees). Notwithstanding anything to the contrary set forth in this subsection or elsewhere in this Agreement, the Company’s board of directors and each committee thereof shall have the absolute and unfettered right, exercisable at its sole and absolute discretion, to exclude such Board Observer representative from any meeting thereofor portion thereof if access to such information or attendance at such meeting would cause the Company to forfeit the attorney-client privilege between the Company and its counsel.”